author: JONES, Justice.

text:
    Gulley SIMPSON v. William J. JONES, et al.
    83-870.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      Wyman O. Gilmore, Grove Hill, and L.Y. Sadler, Jr., Camden, for appellant.
    Thomas S. Lawson,, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for ap-pellees.
   JONES, Justice.

This is an appeal from a final judgment dismissing Gulley Simpson’s attempted contest of the will and codicils of Martha Simpson.

Miss Martha Simpson executed her will on May 1,1967, and executed codicils thereto in 1970 and 1975. The will directed that the bulk of Miss Simpson’s estate be left in trust to provide scholarships to Wilcox County students, with additional bequests to various nephews and nieces. Miss Simpson died on May 28, 1982, and her will and the codicils were admitted to probate on November 10, 1982.

On May 9, 1983, Gulley Simpson filed with the Probate Court of Wilcox County a document entitled “Contest of Will of Martha Simpson ... and First Codicil ... and Second Codicil....” The heading of the document read “In the Probate Court,” and, as relief, demanded “that the probate of said enclosed Will shall not be granted and further ... that this contest be transferred from the Probate Court ... to the Circuit Court....” As grounds for relief, Simpson alleged that Miss Simpson suffered from mental incompetence, physical weakness, and lack of testamentary capacity, and that coercion, undue influence, and restraint had been exerted on Miss Simpson to procure her will and the codicils. The document did not name respondents, nor did it allege Simpson’s interest in the will. After having the document and a copy of it stamped as “filed” in the probate court, Simpson’s lawyer took the original document and filed it with the circuit court.

On May 16, 1983, Simpson filed with the circuit court a document entitled “Removal of Contest of Will from Probate Court to Circuit Court in the Contest of the Will of Martha Simpson ... and First Codicil ... and Second Codicil_” This second document purported to amend the first by 1) alleging Simpson’s entitlement to a share of the estate by virtue of his being a great-nephew of Miss Simpson, and 2) demanding, as relief, that the will “be declared void, and that said contest be transferred from the Probate Court ... to the Circuit Court....”

On October 6, 1983, Simpson supplied the circuit court with the names and addresses of those parties upon whom service of a summons and the alleged “complaint” was to be made. The record reflects that service was perfected on all specified respondents.

Five of the parties so served responded with a motion to dismiss and a motion to dismiss and strike, along with briefs in support of the motions. Simpson filed a brief in opposition to these motions. Based upon these pleadings, the circuit court entered a final judgment which dismissed “any purported action or claim,” finding that “the defects in the [original] document cannot be cured by amendment,” struck the pleading, and ordered the documents returned to the probate court.

Simpson appeals, claiming that he correctly initiated the contest of Miss Simpson’s will by filing the proper documents with the proper court in accordance with both the applicable probate code sections (§ 43-8-190, et seq., Code 1975) and the Alabama Rules of Civil Procedure, and by proceeding thereon in a timely manner. We disagree, and affirm the judgment of the trial court.

Jurisdiction to entertain a will contest in Alabama is conferred upon both the probate court and the circuit court by statute. Forrester v. Putnam, 409 So.2d 773 (Ala.1982); McCaa & Foster v. Grant, 43 Ala. 262 (1869). Before probate, a will contest may be commenced in the probate court in accordance with § 43-8-190. Once the will has been admitted to probate, however, contest is controlled by § 43-8-199:

“Any person interested in any will who has not contested the same under the provisions of this article, may, at any time, within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.”

Because will contest jurisdiction is statutorily conferred, proceedings under § 43-8-190 and § 43-8-199 must comply exactly with the terms of the applicable statute. “It is familiar law in Alabama, the only way to quicken into exercise a statutory and limited jurisdiction is by pursuing the mode prescribed by the statute.” Ex parte Pearson, 241 Ala. 467, 469, 3 So.2d 5, 6 (1941). Section 43-8-199 mandates that, in order to commence a valid contest of a will already admitted to probate, a person with an interest in the will file a complaint in circuit court and “quicken” that court’s jurisdiction of the contest.

We recognize that § 43-8-199 was enacted to provide an additional opportunity for contesting a will already admitted to probate. Carter v. Davis, 275 Ala. 250, 154 So.2d 9 (1963). Furthermore, the dismissal of a complaint is not proper if the pleading contains “even a generalized statement of facts which will support a claim for relief under ARCP 8” (Dunson v. Friedlander Realty, 369 So.2d 792, 796 (Ala.1979)), because “[t]he purpose of the Alabama Rules of Civil Procedure is to effect justice upon the merits of the claim and to renounce the technicality of procedure.” Crawford v. Crawford, 349 So.2d 65, 66 (Ala.Civ.App.1977). See, also, Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S.Ct. 234, 244, 13 L.Ed.2d 152 (1964).

We cannot, however, ignore the ultimate goal of pleadings under the Alabama Rules of Civil Procedure: to provide fair notice to adverse parties of the claim against them and the grounds upon which it rests. Dempsey v. Denman, 442 So.2d 63 (Ala.1983); Carter v. Calhoun County Board of Education, 345 So.2d 1351 (Ala.1977). The liberality with which the Rules are construed, then, must be balanced against the requisites of fair notice to adverse parties and strict adherence to statutorily prescribed procedures.

Commencement of an action under § 43-8-199, then, is the commencement of a statutory, adversarial proceeding. Simpson’s pleading did not comply with the requirements of § 43-8-199, nor did it initiate a contest in an adversarial posture. Therefore, the filing of that document, first with the probate court and then with the circuit court, did not operate to toll the running of the six-months statute of limitations.

While defects in the form of a pleading may be remedied by amendment, the deficiencies in Simpson’s “contest” document go beyond mere form. Nowhere in Simpson’s initial pleading do we find allegations of the substantive material required by § 43-8-199; i.e., that Simpson had an interest in Miss Simpson’s will; that Simpson had not theretofore contested the will under other provisions of the article; that Miss Simpson’s will had been previously admitted to probate in Alabama; or that Simpson’s pleading was a complaint filed within six months of the probate of the will to be contested.

Further, in his “contest” pleading, Simpson failed to name adverse parties — either actual or fictitious — upon whom service could have been made, informing them of the action pending against them. This is tantamount to an express direction to the clerk of the circuit court to withhold service of process, which, we have held, is an indication of the absence of a bona fide intention of immediate service, without which there could not have been the valid filing of Simpson’s pleading. Hence, the statute of limitations was not tolled. Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala.1980).

Simpson argues that, under A.R. Civ.P. 3, the filing of a complaint alone constitutes commencement of the action. We disagree. Assuming, arguendo, that Simpson’s pleading had been a properly drafted complaint, the filing of that pleading is not the sole factor to consider in determining whether there has been the commencement of an action under the rules. In Freer v. Potter, 413 So.2d 1079 (Ala.1982), the plaintiff argued that the filing of the complaint constituted initiation of the action. There the court held:

“While this is generally the case, such filing calls for an implied demand for immediate service. When, as here, the plaintiff intentionally interferes with this service by ordering that service be withheld, then the filing will not constitute the commencement of the action, since there is no intent to prosecute the claim at that time.” 413 So.2d 1081.

The reasoning behind our holding in the instant case was well stated by Justice Maddox in Ward v. Saben, supra. There, the Court found that the complaint had been filed without intention of immediate service and, therefore, that the action had not been commenced. The Court stated:

“To hold otherwise would permit a party to extend unilaterally the period of limitations by an oral request that actual service be withheld, thereby giving that party an additional period of time within which he could conduct an investigation to determine whether, in fact, he had a claim. To permit this would violate the fundamental concept of repose found within every statute of limitations.” 391 So.2d 1035.

Accordingly, the circuit court's final judgment dismissing Simpson’s attempted will contest is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Barbara MONTGOMERY and Hoyt Montgomery v. BIG B, INC., et al.
    83-954.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      Jerry Shirley of Henley, Whitehurst & Shirley, Northport, for appellants.
    Wilbor J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   JONES, Justice.

Plaintiffs Barbara Montgomery and her husband Hoyt Montgomery appeal from a summary judgment in favor of Defendants. Plaintiff Barbara Montgomery was employed by Defendant Big B as a store manager and, as such, was responsible for the daily deposit of receipts. She was discharged after the receipts of February 17, 1982, were determined to be missing and no explanation was ever advanced for the disappearance of the money.

Plaintiffs sued Big B, Inc., Steve Collins (district manager and Barbara Montgomery’s immediate supervisor), Anthony J. Bruno (president of Big B), Bobby Little (vice president and director of store operations), Dave Rushton (security officer), Joe McDevit (director of store security), and unknown defendants, alleging breach of implied contract, intentional interference with a contract, wrongful discharge, libel and slander, and fraud. On appeal, the Montgomerys argue that the circuit court improperly granted Defendants’ motion for summary judgment. Two issues presented on appeal merit our review.

Claim for Libel and Slander

The Montgomerys argue on appeal that Defendants were guilty of libel and slander: 1) in sending a letter of “recommendation” to Mrs. Montgomery, at her request, which contained a statement as to why she had been discharged; and 2) in communi-eating to a polygraph operator suspicions that she had acted improperly with regard to the missing deposit.

Alabama law requires that, in order to maintain an action for defamation, a plaintiff must prove that there was publication of the defamatory statement, Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117, 1120 (Ala.1976), and that the publication was made to “one or more other parties.” McDaniel v. Crescent Motors, Inc., 249 Ala. 330, 332, 31 So.2d 343, 344 (1947) (emphasis supplied).

Our review of the record reveals that the letter which allegedly contained defamatory statements concerning Mrs. Montgomery’s responsibility for the missing deposit was sent to her upon her request for a letter of recommendation from one of the individual defendants, Bobby Little. There is no evidence that the letter was ever seen by anyone other than the Montgomerys. Moreover, there is no merit to Montgomery’s argument that Little’s use of the words “To Whom It May Concern” indicated an intention to communicate the contents of the letter to third persons. Because Little was to send the letter to Mrs. Montgomery, he would have had no means of ascertaining the identities of prospective employers to whom the letter could be addressed. The use of the salutation “To Whom It May Concern” simply made the letter appropriate for Mrs. Montgomery’s use in more than one situation, if she so desired.

Similarly, information supplied to the operator who administered the polygraph test to Mrs. Montgomery and two other store employees did not amount to slander.

“ ‘Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith believes he is acting in pursuance thereof although in fact he is mistaken.’ ” Berry v. City of New York Ins. Co., 210 Ala. 369, 371, 98 So. 290, 292 (1923). (Cited with approval in Willis, supra.)

We find that the allegedly defamatory communications to the polygraph operator fall within this definition. It was the responsibility of the various individual Defendants to investigate the loss of the deposit; and their supplying the requisite information regarding the circumstances of the loss to the polygraph operator was necessary to a competent administration of the polygraph test. We note, too, that Mrs. Montgomery voluntarily submitted to the test and was not required to undergo this form of questioning.

Whether the conditional privilege described above exists is a question of law for determination by the trial court and such privilege is “free from the legal imputation of malice and is actionable only if there is actual malice. The burden is on plaintiff to prove actual malice.” Willis, at 1120. Actual malice may be found upon a showing of

“evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like, emanating from the defendant, or by the violence of the defendant’s language, the mode and extent of publication, and the like.” Kennedy v. Gurley, 208 Ala. 623, 626, 95 So. 34, 37 (1923).

The Montgomerys proffered no evidence whatsoever which would tend to show actual malice on the part of any of the Defendants. Summary judgment on the issue of libel and slander was appropriate.

Claim of Wrongful Discharge

The Montgomerys presented no evidence of an agreement either defining the duration of Mrs. Montgomery’s employment or limiting Big B’s right to terminate her employment. There was, then, an employment at will. Alabama law has not departed from the rule that an employer may terminate an employee at will for no reason or for any reason, including a wrong reason. Martin v. Tapley, 360 So.2d 708, 709 (1978).

Summary judgment was correctly entered on the issue of Mrs. Montgomery’s allegedly wrongful discharge.

We find no error in the decision of the trial court; thus, we affirm the summary judgment below.

AFFIRMED.

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


author: SHORES, Justice. JONES, Justice

text:
    William O. BOWERS and Alan Bowers v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    83-1098.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      Izas Bahakel and Alfred Bahakel, Birmingham, for appellants.
    Edgar M. Elliott and Karon 0. Bowdre of Rives & Peterson, Birmingham, for appel-lee.
   SHORES, Justice.

This is an appeal from a summary judgment granted in favor of State Farm Mutual Automobile Insurance Company on counterclaims alleging the tort of bad faith in connection with uninsured motorist coverage. We affirm.

State Farm had issued a policy of insurance covering an automobile owned by William 0. Bowers. This automobile was involved in a head-on collision while being driven by Alan Bowers, William 0. Bower’s teenage son. Three other teenagers were passengers in the automobile: David Stokes, James Lebo, and Joseph Cacioppo. All four boys sustained serious injuries. The policy covering the automobile provided medical benefit limits of $1,000 per person, and this amount was paid to each of the four boys. In addition, State Farm paid $2,521.75 to the Bowerses and $332.95 to Cacioppo under the uninsured motorist coverage of the principal policy. Uninsured motorist coverage limits under the policy were $10,000 per person and $20,000 per occurrence.

William 0. Bowers had two other automobiles insured by State Farm, which paid him $10,000 uninsured motorist coverage, plus $1,700 interest under each of those two policies.

After the accident, the driver of the other automobile, Edward Tate, who was uninsured, filed suit against the Bowerses, father and son, charging negligence resulting in the accident.

State Farm filed a bill of interpleader, interpleading $19,667.05, the then present value of the uninsured motorist coverage under the principal policy, alleging that the damage sustained by the four boys exceeded the uninsured policy limits of $20,000 per occurrence and asked that each of the four be required to establish the extent of his claim against this amount and that State Farm be discharged.

In response to the interpleader action, William and Alan Bowers and Joseph Ca-cioppo filed counterclaims asserting claims for bad faith against State Farm. State Farm filed its motion for summary judgment, supported by affidavits, requests for admissions, etc. The Bowerses and Caniop-po countered with affidavits and briefs. After a hearing on the motion, the trial court granted summary judgment for State Farm. The Bowerses appeal. We affirm.

The facts developed below do not show that State Farm has refused to pay the uninsured motorist coverage. The Court has been consistent in holding that one of the elements of the tort of bad faith is the intentional refusal to pay a valid claim. National Security Fire and Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982). The Bowerses do not dispute this, but argue in brief that the length of time which elapsed after State Farm investigated the accident and before it filed the inter-pleader action constitutes the equivalent of an intentional refusal to pay. We disagree.

As noted, the Bowerses were sued by the driver of the other automobile. Under the policy, State Farm is not liable to its insured under the uninsured motorist coverage until the tort liability of the uninsured motorist has been determined. It had a clear right to delay its payment until its liability was established. Prudential Ins. Co. v. Coleman, 428 So.2d 598 (Ala.1983). Even though it had that right, State Farm made some partial payments to the Bow-erses, which, under the circumstances of this case, negates the existence of bad faith in dealing with its insured. Sexton v. Liberty National Life Ins. Co., 405 So.2d 18 (Ala.1981).

Additionally, State Farm’s filing of an interpleader action, rather than establishing its bad faith, under the undisputed facts of this case shows just the contrary. It was faced with conflicting claims to the funds interpleaded, and nothing in the record suggests that the interpleader action was filed other than in a good faith effort to establish the extent of each claim against that fund and to limit its liability to the amount interpleaded. This it had a legal right to do and, absent some evidence to the contrary, the mere filing of an action of interpleader does not amount to evidence of bad faith dealing on its part.

Finally, Quick v. State Farm Mutual Automobile Ins. Co., 429 So.2d 1033 (Ala.1983), holds that the tort of bad faith would not be extended to uninsured motorist claims under the facts in that ease. The holding in that case is equally applicable here, where the facts show that a substantial question existed as to State Farm’s liability under the uninsured motorist provision of its policy. As the Chief Justice noted in his concurring opinion, where a legitimate dispute exists as to liability, whether under primary coverage or uninsured motorist coverage, a tort action for bad faith refusal to pay a contractual claim will not lie.

The judgment of the trial court is affirmed.

AFFIRMED.

MADDOX, EMBRY and BEATTY, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I agree with the opinion. The facts of this case, just like the facts in Quick v. State Farm Mutual Automobile Ins. Co., 429 So.2d 1033 (Ala.1983), will not support a tort claim of bad faith. Because I concurred only in the result in Quick, I write separately to clarify that I still persist in the view that much of the language in Quick was unnecessary to its holding, and to point out that the reference to Quick in the instant opinion does not signal its embrace of all the rationale expressed in Quick.


author: BEATTY, Justice.

text:
    Reba JACKSON v. Wilber David HALL.
    83-1170.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      Bryce U. Graham, Tuscumbia, for appellant.
    William Tipton Johnson, Jr., Tuscumbia, for appellee.
   BEATTY, Justice.

Plaintiff, Reba Jackson, appeals from the grant of summary judgment against her and in favor of her former husband in her action to recover damages for assault and battery. We affirm.

The record discloses that Reba D. Hall and Wilber D. Hall were married to each other on May 27, 1982. On December 17, 1982, Reba filed a complaint for a divorce from Wilber. Her petition included aver-ments of physical violence and a request for a restraining order. The restraining order was granted and a hearing on the merits was set for February 22, 1983. On February 1, 1983, however, Reba moved for a dismissal of the complaint on the ground of reconciliation. This motion was granted and the case was dismissed on February 4, 1983.

Then, on March 4, 1983, Wilber Hall filed a complaint for a divorce. On that same date, both parties executed an acceptance of service, answer, waiver, and agreement which they requested that the court approve. The agreement contained provisions relating to the parties’ personal and real property, their joint tax return, and also contained the following statement:

“In full settlement of all claims between the parties, the Wife does hereby accept the sum of $2300.00_
“This is a full, final and complete settlement of all property matters and other matters between the parties. ...”

The divorce decree was granted on March 7, 1983, with the trial court having ratified, approved, and incorporated the agreement as part of the final divorce decree.

Almost one year later, on February 1, 1984, Reba, having remarried and become Reba Jackson, brought an action for assault and battery against her former husband, Wilber D. Hall, alleging that:.

“On to-wit: August 18, 1982, the defendant willfully and wantonly assaulted and beat the plaintiff unlawfully, maliciously and violently. ...”

The date laid for the assault, August 18, 1982, falls within the period of plaintiff’s marriage to Hall and prior to the dates of the agreement and divorce decree. Wilber Hall answered by pleading the agreement and decree as a release, and also pleading the statute of limitations and res judicata. Wilber also moved for summary judgment. By affidavit, Reba denied any agreement involving personal .injuries and damages.

After considering the arguments of counsel, affidavits, pleadings, and court files on the cases involving the two parties, the trial court granted the defendant’s motion for summary judgment. This appeal ensued.

In Johnson v. Johnson, 201 Ala. 41, 77 So. 335 (1917), this Court recognized a statutory modification of the common law prohibition of such an action by virtue of Section 4493, Code 1907 (“The wife must sue alone ... for injuries to such property ... or for all injuries to her person or reputation”), Section 4489 (“All damages which the wife may be entitled to recover for injuries to her person or reputation are her separate property”), and other sections more or less bearing on the wife’s separate capacity. The question here, however, is whether or not that action is barred under the material before the trial court on the summary judgment motion. The answer to this question depends upon the construction of the agreement of the parties and the effect of the divorce decree.

The construction of the written agreement is a function of the court. In Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1194 (Ala.1978), the well-established rule was stated thusly:

“If the document is unambiguous, its construction and legal effect is a question of law which may be decided, under appropriate circumstances, by summary judgment. ...”

Here, the agreement between the parties, clear and unambiguous, was that “[i]n full settlement of all claims between the parties, the Wife does hereby accept the sum of $2300.00,” and that agreement was expressly made a “full, final and complete settlement of all property matters and other matters between the parties.” One of those matters was the wife’s cause of action for assault and battery. The language of the agreement clearly demonstrates an intent on the part of plaintiff to make a final settlement of “all claims,” including her claim for assault and battery. “All claims” means just that. See Williams v. McMillan, 352 So.2d 1347 (Ala.1977); Moore v. Stephens, 264 Ala. 86, 84 So.2d 752 (1956).

This agreement was merged into the divorce decree and thus became a part of that decree, final and not subject to modification. Cf. Rickman v. Rickman, 266 Ala. 371, 96 So.2d 674 (1957); Davis v. Cole, 399 So.2d 309 (Ala.Civ.App.1981). Thus, the question of liability for a pre-ex-isting cause of action for an assault by one spouse against the other was decided in the divorce action. In Wheeler, supra, at 1199, the elements of res judicata were explained:

“(1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits. ...”

In this case, the first three elements are easily perceived. The fourth element, as explained in Wheeler, supra, at 1200, is met when “substantially the same evidence supports both actions.” That is the case here. The parties’ affidavits and pleadings, including the agreement, were the evidentiary basis for the divorce. In the later assault action, the trial court considered the divorce proceedings and Reba’s additional affidavit. Thus, the four elements of res judicata were met, and “the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action.” Wheeler, supra, at 1199. The trial court, accordingly, was correct in granting summary judgment in favor of defendant in the plaintiff’s assault claim.

Let the judgment be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Loretta M. Gant APPLEGATE v. Frederick Franklin GANT.
    Civ. 4006.
    Court of Civil Appeals of Alabama.
    June 27, 1984.
    J. Paul Whitehurst of Henley, White-hurst & Shirley, Northport, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This is a child custody case which is governed by the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1982).

The parties to this proceeding were divorced in Texas on August 9, 1982. Under the decree of divorce, the wife was awarded custody of the parties’ five year old daughter, Jackie, and the husband was ordered to pay child support of $140 per month.

On May 27, 1983 husband filed a petition in the Circuit Court of Tuscaloosa County to modify the Texas decree and to award permanent custody of the child to his mother, Onita Patrick. Wife filed an answer and counterclaim setting forth several defenses, including the Parental Kidnapping Prevention Act (PKPA), and the Alabama Uniform Child Custody Jurisdiction Act (UCCJA), § 30-3-20 et seq., Code 1975.

After an ore tenus hearing, the circuit court entered an order on August 25, 1983 modifying the Texas custody decree and granting custody to Mrs. Patrick, the paternal grandmother.

The mother appeals to this court, arguing that the Alabama court had no authority to modify the Texas order which granted her custody, and that Alabama is bound by law to enforce the Texas decree. We agree and reverse.

The PKPA and the UCCJA govern interstate child custody disputes. In case of conflicts between the two statutes, the PKPA shall prevail. Ex parte Lee, 445 So.2d 287 (Ala.Civ.App.1983); Flannery v. Stephenson, 416 So.2d 1034 (Ala.Civ.App.1982).

Under the PKPA if a Texas court’s child custody determination was entered in accordance with the act, then an Alabama court is required to enforce that decree according to its terms and generally cannot modify such order, 28 U.S.C. § 1738A(a) (1982), and Texas retains continuing jurisdiction over the dispute and the exclusive right to issue modifications as long as the child or one of the parties remains a resident of Texas. 28 U.S.C. § 1738A(d) (1982); Moore v. Perez, 428 So.2d 113 (Ala.Civ.App.1983). If, however, Texas loses jurisdiction or has declined to exercise jurisdiction in the case, and Alabama has jurisdiction to make a custody determination, then an Alabama court can modify the Texas decree. 28 U.S.C. § 1738A(f) (1982); Mitchell v. Mitchell, 437 So.2d 122 (Ala.Civ.App.1982).

The evidence shows that the child was born in Tyler, Texas in 1977. The parties were living in Texas at this time and continued to live in Texas, except for short periods when they lived out of the state, until the spring of 1982. Apparently at this time the parties separated and the mother filed for a divorce in Texas. In the latter part of April or early part of May 1982, the husband agreed to sign the divorce papers if the mother would let him have the child -for a week. The mother agreed and he signed an instrument that in Alabama would be the equivalent of a waiver and answer. The child was taken eventually to Alabama. The divorce was rendered by the Texas court on August 9, 1982 giving the mother custody of the child and requiring the father to pay child support.

The mother obtained possession of the child in September 1982 and returned with the child to Texas. In January 1983 the mother asked the Patricks to care for the child for a period of time not to exceed six months due to her dire financial condition.

Prior to the expiration of the six month period, the mother attempted to obtain the child from the grandparents but was unsuccessful. Shortly after this time the grandmother sought and was awarded temporary custody of the child by the juvenile court of Tuscaloosa County, Alabama. Thereafter the father filed a petition in the Circuit Court of Tuscaloosa County asking that the Texas decree be modified to give permanent custody of the child to the grandmother, Mrs. Patrick. After a hearing the circuit court found that íexas did not have jurisdiction of the matter and that Alabama was “clearly the State of jurisdiction,” and awarded permanent custody of the child to the grandmother.

Based on the evidence contained in the record, it appears that Texas had jurisdiction to divorce the parties and award custody of the child to the mother. The parties and the child were residing in Texas at the time the divorce proceedings were initiated and had been so residing for several years. Thé Texas action was commenced about a year before the proceedings were filed in Alabama. The father had notice of the Texas proceedings and specially waived further participation in those proceedings while in Texas.

We find that the Texas proceedings were conducted in conformity with the PKPA and that Texas had jurisdiction to award custody of the child. Thus, the Texas custody decree was entitled to full faith and credit and should have been enforced according to its terms. See § 1738A(a), 28 U.S.C. (1982). Furthermore, the Texas court continued to have jurisdiction over the matter. The mother has always been and is a resident of Texas. In addition, there is no evidence that a proper court of that state has declined to exercise modification jurisdiction. Therefore, the Alabama court had no authority under the federal act to modify the Texas judgment. See Mitchell v. Mitchell, supra.

For the foregoing reasons the judgment of the trial court is reversed and this cause is remanded to that court for the prompt rendition of a judgment enforcing the Texas decree according to its terms and without modification.

The mother is awarded an attorney’s fee on appeal of $500.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: HOLMES, Judge.

text:
    HUMANA MEDICAL CORPORATION v. STATE HEALTH PLANNING AND DEVELOPMENT AGENCY and Hospital Authority for the City of Huntsville.
    Civ. 4360.
    Court of Civil Appeals of Alabama.
    Aug. 22, 1984.
    Rehearing Denied Sept. 28, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-63.

      George W. Royer, Jr. of Butler & Royer, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Peggy Schmitz, Asst. Atty. Gen., for appel-lee State of Ala.
    Joe W. Campbell of Ford, Caldwell, Ford & Payne, Huntsville, for appellee Hosp. Authority of the City of Huntsville.
   HOLMES, Judge.

The State Health Planning and Development Agency (SHPDA) denied the request of Humana Hospital of Huntsville for a certificate of need. The hospital ultimately appealed to the circuit court. The circuit court affirmed SHPDA’s action. The hospital, through able counsel, appeals and we affirm.

The dispositive issue is whether SHPDA’s denial of the hospital’s certificate of need was arbitrary or capricious. Additionally, the hospital contends that SHPDA’s action denied the hospital due process and equal protection of the law.

The hospital filed an application for a certificate of need with SHPDA in March 1982. The record indicates that this application regarding the transfer of thirty-one hospital beds from two other hospitals in the same health service area to Humana Hospital of Huntsville was denied by SHPDA for the following two reasons: (1) “Lack of community need for additional beds in Huntsville or Madison County.”; and (2) “The project does not foster cost containment.”

The hospital requested a Fair Hearing per Ala.Code §§ 22-21-260 to -270 (1975) & 1983 Supp. The Fair Hearing Officer determined that the application for a certificate of need was properly denied based upon a statute. This statute provides in pertinent part:

“No certificate of need for new inpatient facilities or services shall be issued unless the SHPDA makes each of the following findings:
“(2) That less costly, more efficient or more appropriate alternatives to such inpatient service are not available, and that the development of such alternatives has been studied and found not practicable;
“(3) That existing inpatient facilities providing inpatient services similar to those proposed are being used in an appropriate and efficient manner consistent with community demands for services;”

Ala.Code § 22-21-266(2), (3) (1975) & 1983 Supp.

First, the Fair Hearing Officer addressed subsection three of the statute regarding community need. The Fair Hearing Officer provided “that there was a lack of community need for the proposed application, based upon evidence of the utilization of existing hospital beds in Huntsville and Madison County .... ” Specifically, the record indicates “approximately an additional 160 beds available for patient care” in Huntsville, and, furthermore, that “the occupancy rate for all hospital beds in Madison County is less than 80%.”

Second, the Fair Hearing Officer addressed subsection two of the statute regarding cost containment. The Fair Hearing Officer provided that “[t]he Board was correct in its determination that the proposal did not foster cost containment and that less costly, more efficient and more appropriate alternatives to the bed addition were available — ” Apparently, better utilization of the existing hospital beds in Huntsville and Madison County would foster cost containment.

The hospital appealed to the Circuit Court of Madison County, alleging that its application for a certificate of need was arbitrarily denied. The circuit court affirmed the denial of the certificate of need on the following basis:

“Although Humana has demonstrated a need for additional beds in their hospital, they failed to prove a need for additional hospital beds in the community. The evidence showed that the community, which includes all of Madison County, has an excess of acute care beds. The addition of thirty-one (31) beds to Humana would be a duplication of services already offered at Huntsville and Crestwood Hospitals.”

Before determining whether the denial of the certificate of need was arbitrary and capricious, we note that the evidence presented to the circuit court was solely by written exhibits as stipulated by the parties. There was no oral testimony.

In view of the written evidence presented to the circuit court, the hospital alleges that no weight is to be given the decision of the trial judge because the ore tenus rule does not apply to the written exhibits.

The Supreme Court of Alabama provided in Hurt v. Given, 445 So.2d 549, 550 (Ala.1983), that when there is no oral testimony before the trial judge and the only evidence presented is “the pleadings and stipulations of the parties” then “[t]he ore tenus rule of review does not apply to a decision based on such evidence at trial.”

However, there is a presumption of correctness applicable to the decision of an administrative agency under certain circumstances. We determined in Hughes v. Jefferson County Board of Education, 370 So.2d 1034, 1037 (Ala.Civ.App.1979), that when “there appears some reasonable basis for the classification made by the board, such action is conclusive and the court will not substitute its judgment for that of the administrative body” (emphasis added).

In the present case, we note that per Ala.Code § 41-22-27(e) (1975), the standard for determining whether there is a reasonable basis for denying the certificate of need is found in the Code of Federal Regulations rather than the Alabama Administrative Procedure Act, Ala.Code §§ 41-22-2 to -27 (1975). The standard of review is as follows: “The State court shall affirm the decision of the State Agency unless it finds it to be arbitrary or capricious or not made in compliance with applicable law.” 42 C.F.R. § 123.410(14)(i) (1983).

Before applying the standard of “arbitrary and capricious” to the present facts, we note our decision in Sexton v. Tuscaloosa County Civil Service Board, 426 So.2d 432 (Ala.Civ.App.1983). In Sexton we stated the following: “A decision is not arbitrary where there is a reasonable justification for the decision or where the determination is founded upon adequate principles or fixed standards.” Sexton, 426 So.2d at 435 (emphasis added).

In this case there are fixed standards upon which the issuance of a certificate of need must be based. These fixed standards are found in Ala.Code § 22-21-266 (1975) & 1983 Supp. This statute provides five findings prerequisite to the issuance of a certificate of need. The two prerequisite findings pertinent to this case regard community need and cost containment and are stated previously in this opinion.

There is evidence in the record indicating an excess of hospital beds in the health care community. Consequently, in this instance, the prerequisites in Ala.Code § 22-21-266(2), (3) (1975) & 1983 Supp. regarding community need and cost containment are not met. There is a reasonable justification for the denial of the certificate of need in this case, and, accordingly, the denial was not arbitrary and capricious. We, therefore, hold that the decision of SHPDA is conclusive and we will not substitute a judgment for the decision of the administrative board.

We now address the hospital’s additional allegation that the denial of the certificate of need violated the hospital’s Fourteenth Amendment rights of due process and equal protection of the law. First, regarding the due process question, we note that the Supreme Court of Alabama held in Cooper v. Watts, 280 Ala. 236, 240, 191 So.2d 519, 522 (1966): “We have held that the constitutional requirement of due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.”

In the present case, the hospital was given notice of the hearing on the application for a certificate of need by the SHPDA Board. Furthermore, the hospital was given notice of an adverse decision and notice of a provision for a Fair Hearing. There was a Fair Hearing to reconsider the application for a certificate of need. There was also a judgment entered in accordance with that notice and hearing. The circuit court held that “[w]e find no merit in their argument that their due process rights have been violated.” We affirm that decision.

Second, regarding the equal protection question, we note that the hospital asserts that SHPDA applied different standards to its application for a certificate of need than those applied to other hospitals, hence, denying the hospital equal protection of the law. However, the standards to be applied to the issuance of a certificate of need are fixed. As previously stated, Ala.Code § 22-21-266 (1975) & 1983 Supp., requires five findings to issue a certificate of need.

Apparently, the hospital’s equal protection argument is bottomed in the type of information requested by SHPDA for the five findings required by the statute.

The standard for determining whether there is a violation of equal protection in this case is the “rational relationship” test. This is the proper standard because there is no suspect class involved in this case and no fundamental right in question. Denial of a certificate of need does not deprive the hospital of any fundamental right.

The Supreme Court of Alabama stated: “Where neither a fundamental right nor a suspect class is involved, the rational basis test applies. It requires only that a classification of persons similarly situated be rationally related to a legitimate legislative purpose.” Board of Trustees of Policemen’s and Firemen’s Retirement Fund v. Cardwell, 400 So.2d 402, 405 (Ala.1981) (emphasis added).

The Fair Hearing Officer determined that “[i]f the Board did apply a higher standard of proof of community need, the Board’s articulated concerns about the costs inherent in a bed transfer would be a rational basis for requiring a stronger demonstration of community need in this case.” (Emphasis added.) Put another way, the “rational relationship” test is met. Cost containment is a legitimate legislative purpose to promote efficient health services. Requiring certificates of need to be issued before constructing or enlarging health facilities is certainly rationally related to this purpose.

Therefore, the five findings required by statute as a prerequisite to the issuance of a certificate of need are rationally related to cost containment for promoting efficient health services. Whatever information is required by the review board issuing a certificate of need for the purpose of determining whether the five statutory findings are met is within the discretion of that review board. Accordingly, there is no denial of equal protection in this case.

This case is due to be and is affirmed,

AFFIRMED.

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


text:
    PARTICIPATING PARTS ASSOCIATES, INC. v. William L. PYLANT, Jr.
    Civ. 4090.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.
    Rehearing Denied Oct. 10, 1984.

      Richard H. Ramsey, III, Dothan, for appellant.
    D. Taylor Flowers, Dothan, for appellee.
   BRADLEY, Judge.

This is an action by the holder of a check seeking to enforce payment of the check against the drawer.

Holder, Participating Parts Associates, Inc., brought an action in circuit court against the drawer, William L. Pylant, Jr., to enforce payment of a check in the amount of $5,000 after defendant stopped payment on it. There was judgment for the defendant, and plaintiff filed a motion for a new trial. This motion was denied and plaintiff appeals.

Mr. Brannon became the owner of Participating Parts after buying the company from the defendant and several others. Defendant was retained as an employee of Participating Parts. According to defendant’s testimony Brannon directed him to sell Participating Parts and agreed to pay defendant $5,000 for his services. Defendant alleges that he and Brannon later made an agreement that he would be reimbursed in miscellaneous automobile parts equivalent in value to $5,000 after it became clear that Participating Parts was failing. There was also an agreement that defendant and Mr. Peacock, a stockholder of Participating Parts, buy $10,000 worth of automobile parts for $5,000. The value of the merchandise under both agreements was equivalent to the actual cost price less a sixty percent discount.

Defendant and Mr. Peacock began pulling merchandise from Participating Parts, pursuant to the above agreements. Defendant attempted to get enough merchandise to cover his $5,000 commission and the agreement with Mr. Brannon to purchase $10,000 worth of merchandise. However, Mr. Brannon stopped defendant and Mr. Peacock shortly after they began taking parts, indicating that he felt that they had taken enough parts. Defendant disagreed, stating that he did not even have enough parts to cover his commission, but offered to write a check for $5,000 to cover the agreement to purchase $10,000 worth of parts.

On the face of the check issued to plaintiff appear the words “For $10,000.00 Distressed Mdse to be totalled 4/17/83.” Defendant asserts that this notation was made to acknowledge the understanding between Mr. Brannon, owner of Participating Parts, and defendant that the check was not to be negotiated by Mr. Brannon until the merchandise was totaled, and only if the total value of the merchandise taken by defendant exceeded the $5,000 owed defendant by plaintiff. The trial court found for the defendant.

A trial court’s findings will not be overturned unless the judgment is plainly and palpably wrong. Mobile Dodge, Inc. v. Waters, 404 So.2d 26 (Ala.1981); Everett v. Lister, 25 Ala.App. 231, 144 So. 119 (Ala.Ct.App.1932). Furthermore, a trial court’s denial of a motion for a new trial strengthens the presumption of the correctness of the judgment. Osborne v. Cobb, 410 So.2d 396 (Ala.1982).

Plaintiff argues on appeal that he is a holder of a negotiable instrument, which entitles him to recover from defendant under section 7-3-413, Code 1975, upon dishonor and notice of dishonor of the check. See also § 7-3-507(2), Code 1975, which provides that the holder has an immediate right of recourse against the drawer upon notice of dishonor.

In order for a writing to be a negotiable instrument so that the protections under the Uniform Commercial Code, §§ 7-3-101 to -805, Code 1975, will apply, the writing must “[cjontain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the ... drawer ....” § 7-3-104(l)(b), Code 1975. “Negotiability is determined from the face, the four-corners, of the instrument without reference to extrinsic facts.” Holsonback v. First State, Bank, 394 So.2d 381 (Ala.Civ. App.1981); see also § 7-3-105, Code 1975. Relying on the case cited above, plaintiff contends that the instrument in question is unconditional because the check is not expressly conditioned on its face, but requires reference to extrinsic facts to show the alleged conditions to payment. However, plaintiff failed to object to defendant’s testimony concerning the circumstances under which the check was issued. Where no objection has been made to the admission of parol evidence at trial, the evidence is not subject to question on appeal. State ex rel. Elmore v. Leveson, 207 Ala. 638, 93 So. 608 (1922). Therefore, the trial court is authorized to consider evidence other than the check in determining whether the check was an unconditional promise to pay a certain sum of money.

Under section 7-3-306, Code 1975, one who is a holder of a negotiable instrument takes the instrument subject to:

“(a) All valid claims to it on the part of any person; and
“(b) All defenses of any party which would be available in an action on a simple contract; and
“(c) The defenses of want or failure of consideration, nonperformance of any condition precedent, nondelivery, or delivery for a special purpose .... ”

Defendant stopped payment on the check until the merchandise he had taken from Participating Parts could be totaled. He testified that the parts he took from Participating Parts totaled less than $5,000, thus the check never became effective and his duty to pay never arose. § 7-3-306, Code 1975. The trial court’s conclusion that the payment of the check was conditioned on the above agreement is sufficiently supported by the evidence and is not clearly erroneous.

Even if the trial court were to determine that this instrument was a promissory note, evidence may be introduced as to an agreement between the original parties to the note that liability was conditional and that delivery of the note was not effective until the happening of some agreed-upon event. Pointer v. Farmers Fertilizer Co., 230 Ala. 87, 160 So. 252 (1935); Davenport & Harris Undertaking Co. v. Roberson, 219 Ala. 203, 121 So. 733 (1929); Norwood v. Stinnett, 202 Ala. 349, 80 So. 431 (1918).

Parol evidence, however, may not be used to condition payment on a check which has already been effectively delivered and which appears unconditional on its face. However we are not concerned here with this principle because there is evidence in the record that the delivery of the check was conditional.

Whether there was a conditional delivery of the check to plaintiff is a question of fact and the trial court’s conclusion on this issue will not be overturned unless it appears clearly erroneous. See e.g. Engelcke v. Stoehsler, 273 Or. 937, 544 P.2d 582 (1975) (where it was held that parol evidence may be used to show that a check was not to be operative until the satisfaction of a condition precedent in a suit between the original parties). The trial court’s judgment is supported by the evidence.

Plaintiff’s allegations that defendant delivered the check with intent to defraud, entitling Participating Parts to recovery under section 6-5-285, Code 1975, presents a question of fact which the trial court concluded in favor of defendant. Such conclusion is not clearly erroneous.

The judgment of the trial court is affirmed.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P.J., concurs in the result.


text:
    STATE of Alabama v. Travis W. “Tab” CHANDLER.
    Civ. 4264.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.
    Rehearing Denied Oct. 10, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-135.

      Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Hendon B. DeBray, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for appellant.
    No brief for appellee Chandler.
    John S. Casey, Heflin, for appellees Mr. and Mrs. D.T. Day, for appellee.
   BRADLEY, Judge.

This appeal arises out of the denial of a rule 65.1, Alabama Rules of Civil Procedure, motion to enforce the liability of a surety on a supersedeas bond.

On March 11,1981 the State of Alabama, Department of Revenue (State) entered a final assessment of delinquent state and county sales taxes against taxpayer, “Tab” Chandler, in the respective amounts of $44,128.80 and $548.59. On April 22, 1981 a final assessment was entered against taxpayer for delinquent city sales tax in the amount of $2,507.11.

Within thirty days from the dates of the final assessments, taxpayer appealed to the Circuit Court of Cherokee County and duly filed with the circuit clerk supersedeas bonds for twice the amount of the taxes. § 40-2-22, Code 1975. Mr. and Mrs. Day signed the bonds as sureties.

On March 4, 1982 the Circuit Court of Cherokee County affirmed the final assessments of state, county, and city sales tax against taxpayer. Subsequently, the Department of Revenue attempted to collect the taxes from taxpayer, the sureties, and the clerk of the circuit court. After these attempts proved unsuccessful the Department of Revenue filed a motion under A.R. Civ.P. 65.1 to enforce liability of surety on August 31, 1983. The court was asked to dismiss the motion.

After both sides filed briefs the court entered an order on February 21, 1984 denying the motion and holding that the State must bring a separate action against the sureties to hold them liable on the bonds. From this ruling the State appeals.

The dispositive issue on appeal is whether a supersedeas bond posted under § 40-2-22 may be enforced against its sureties on motion in the same case in which the bond was made, or whether a new and independent action must be brought.

It is first necessary to determine whether a rule 65.1 motion is proper in this case. Section 40-2-22 is authority for the procedure to be followed when an appeal is taken from a final tax assessment. A taxpayer can file an appeal and either pay the tax that has been assessed against him or file a supersedeas bond in double the amount of the taxes. The statute does not provide for enforcement of the bond.

Although a proceeding may be controlled by statute, as in this case, the Alabama Rules of Civil Procedure will apply to the extent that the statute does not provide for certain matters. Rule 81(a)(32), A.R.Civ.P. Rule 65.1 provides that, “Whenever these rules require or permit the giving of security by a party,” the liability of a surety “may be enforced on motion without the necessity of an independent action.” See also Churchill v. Board of Trustees, 409 So.2d 1382 (Ala.1982); Alabama Cablevision Co. v. League, 416 So.2d 433 (Ala.Civ. App.1982). Rule 62(d), A.R.Civ.P., specifically allows an appellant to obtain a stay from a judgment by filing a supersedeas bond; thus, it permits “the giving of security by a party,” and is within the purview of rule 65.1.

In the instant case the applicable statute, section 40-2-22, provides for the procedure for an appeal from a final tax assessment. However, there is no statutory procedure in Alabama to provide for the enforcement of a supersedeas bond or the liability of a surety. Since there is no specific statutory procedure, it follows that the Alabama Rules of Civil Procedure apply, and, in particular, rule 65;1.

The Alabama version of rule 65.1 is patterned after the federal version.

“The importance of Rule 65.1 is that it permits the liability of a surety to be enforced through an expeditious, summary procedure without the necessity of an independent action. On the other hand, the rule is permissive and does not prohibit the bringing of an independent action against the surety, ....
“... Moreover, if the litigant’s motion for a summary proceeding is timely, it is an abuse of discretion for the trial court to dismiss the motion, particularly when it results in a loss of the convenience and expediency Rule 65.1 is designed to provide.
“Rule 65.1 provides that if the motion procedure is chosen to enforce a surety’s liability, the motion and such notice ‘as the court prescribes may be served on the clerk of the court [who is appointed the surety’s agent for this purpose by the posting of the security], who shall forthwith mail copies to the sureties if their addresses are known.’ When notice is not given, the court, on its own motion, should vacate a judgment against the surety.”

11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2972 (1973) (brackets theirs, emphasis ours, footnotes omitted).

In the case at bar the State attempted to collect on the final judgments entered by the circuit court but was unsuccessful. Subsequently, the State filed a motion to enforce the liability of the sureties but the motion was denied. There was evidence that notice of the motion was served on the clerk of the court as required under the rules.

Taxpayer argues that the trial court has the right to choose the avenue of relief in this type case rather than the party seeking enforcement of its judgment. We disagree. As noted from the above quoted material from 11 C. Wright & A. Miller, Federal Practice and Procedure, it is the litigant’s choice to file a motion to enforce the surety bond or to file an independent action. Further, once the litigant exercises its choice and files a motion, it is an abuse of discretion for the trial court to dismiss the motion, particularly when such action would result in a loss of expediency and convenience, for which rule 65.1 was designed to provide.

It is clear that a rule 65.1 motion would be more convenient and expedient in this situation than an independent action. Hence we conclude that the trial court abused its discretion in overruling said motion.

A second issue has been raised as to whether the order entered by the trial court on February 21, 1984 denying the State’s motion was a final judgment. It is argued that it was not a final order but was merely interlocutory, and that the appeal should be dismissed. Further contention is made that in the event it was a final order rule 54(b), A.R.Civ.P., was not complied with.

These arguments are not well taken. We adhere to the well-established principle that only final judgments are appealable. Rule 54, A.R.Civ.P.

In the instant case taxpayer was deemed liable for the taxes assessed, and he did not appeal this decision. The State thereupon sought collection of this judgment by filing a motion to enforce the supersedeas bonds that had been filed. The motion was denied.

The denial of the motion to enforce the supersedeas bonds effectively terminated the State’s efforts to collect its judgment from the sureties on the bond. It was a final judgment. Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623 (Ala.1976).

We also consider the contention that rule 54(b) was not complied with is without merit. The judgment entered on February 21, 1984 will support an appeal under the provisions of rule 54(b) because the State’s motion to enforce liability of surety involved both the principal and the sureties, since the principal, Mr. Chandler, remains liable for the taxes.

The motion to dismiss the appeal is overruled. The order overruling the motion to enforce the liability of the parties to the supersedeas bond is reversed and the cause remanded.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Shelli M. HESTER v. Keith HESTER.
    Civ. 4269.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.
    Rehearing Denied Oct. 3, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-66.

      Julian L. McPhillips, Jr. of McPhillips & DeBardelaben, Montgomery, for appellant.
    Griffin Sikes of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellee.
   WRIGHT, Presiding Judge.

On February 10, 1984, Shelli M. Hester filed a petition in the Circuit Court of Cov-ington County, Alabama, asking the court to modify a former divorce decree between the parties due to a change of circumstances, for a temporary restraining order, and for the court to issue an order requiring respondent to show cause why he should not be held in contempt of court for use of force on the petitioner. On March 7, 1984, the trial court heard the petition, and at the conclusion of the hearing entered its order finding the defendant/respondent in contempt of court for failing to pay $1,000 due in alimony to petitioner, but allowing him an opportunity to purge himself of contempt by paying the $1,000 into the court on or before March 20, 1984.

The court refused to issue a restraining order or to modify its former order placing custody of the parties’ children with the defendant. The trial court did, however, modify the visitation rights of the petitioner by making them more specific. From this order petitioner appeals to this court.

Appellant challenges the custody aspect of the trial court’s order. We recently reiterated that the matter of custody of children and right of visitation in a case of divorce, or modification thereof, is for the discretion of the trial court. Robbins v. Robbins, 447 So.2d 789 (Ala.Civ.App. 1984). There is a strong presumption in favor of a trial court’s findings in a child custody case. Cory v. Cory, 429 So.2d 1096 (Ala.Civ.App.1983). The exercise of such discretion by the court, after oral hearing, is presumed to be correct and will be set aside on appeal only upon a finding of palpable abuse and unjustness. Thomas v. Davis, 410 So.2d 889 (Ala.1982).

Our review of the evidence and the judgment of the trial court discloses no basis for reversal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Milton A. UNDERWOOD v. Ruby Jo Norris UNDERWOOD (Landrum).
    Civ. 4318.
    Court of Civil Appeals of Alabama.
    Oct. 10, 1984.
    Rehearing Denied Nov. 14, 1984.

      Judy D. Thomas, Oneonta, for appellant.
    Thomas L. Rountree, Oneonta, for appel-lee.
   BRADLEY, Judge.

In 1977 Ruby Jo Norris Underwood filed a complaint in the Blount County Circuit Court seeking a divorce from Milton A. Underwood. In the complaint plaintiff-wife alleged that there existed a common-law marriage between the two parties and that two children had been born of that union. In 1978 a default divorce decree was rendered against the defendant-husband. In October 1983 the plaintiff asked that the divorce decree be modified to award her child support. In response to the modification petition, the defendant asked that the default divorce decree be set aside. The default decree was set aside, and a hearing was held on the divorce petition in September 1983. Thereafter, the trial court found that a valid common-law marriage existed and that the defendant was the father of the two children born of the marriage. The trial court also awarded child support of $35 a week. The defendant appeals.

Defendant’s first contention is that the trial court’s finding of a common-law marriage is unsupported by the evidence.

A valid common-law marriage exists in Alabama when there is capacity to enter into a marriage, present agreement or consent to be husband and wife, and consummation. Cluxton v. Cluxton, 431 So.2d 1296 (Ala.Civ.App.1983). Defendant does not question the issue of capacity, but says that the evidence is insufficient to support a finding of present agreement and consummation. We do not agree.

The evidence is in sharp dispute as to whether the parties had an agreement to be husband and wife and whether that agreement was consummated. Where the evidence is in conflict, the trial court’s role is to resolve the conflict and decide the case on the evidence submitted to it. Also, in domestic relations cases a judgment resulting from an ore tenus hearing is pre-

sumed correct and will not be overturned except where it is unsupported by the evidence or is plainly and palpably wrong. Harden v. Harden, 418 So.2d 159 (Ala.Civ.App.1982).

The evidence shows that the defendant introduced the plaintiff as his “better half” to various members of his family; that they cohabitated at plaintiff’s home from November 1971 until March 1977; his children by a previous marriage stayed with defendant at plaintiff’s house for a period of time; they vacationed together, registering into motels as husband and wife; a visitor who went to the house to invite them to church thought they were husband and wife; and plaintiff signed a promissory note using defendant’s last name in defendant’s presence and with his knowledge without an objection from defendant. There were various photographs taken of the defendant, plaintiff, and the two children, much the same as any family would take. One of them showed the four of them in bed. The element of consent may be inferred from the facts and circumstances and need not rest on the declarations that the parties make. Cluxton, supra; Piel v. Brown, 361 So.2d 90 (Ala.1978). There was ample evidence at trial from which the trial court could have inferred consent.

Defendant next says that the relationship was not consummated. Plaintiff says that it was and that two children were fruits of the union. Defendant testified that he had never lived with plaintiff, though they had dated, and that he had never had a physical relationship with ap-pellee. Again, the testimony is in sharp dispute, and the burden was on the trial court to resolve the dispute. It resolved the issue, and the evidence supports that resolution.

Next, defendant contends that even if there was a valid common-law marriage the evidence did not support the trial court’s determination that defendant was the father of the two children. Again, we disagree.

We note at the outset that in paternity disputes when the trial court hears the evidence ore tenus its findings will not be disturbed if supported by credible evidence. Coleman v. Sparkman, 370 So.2d 977 (Ala.1979). There was ample evidence from which the trial court could have determined the paternity issue.

The oldest child was born in November 1971. By plaintiffs testimony, she and defendant did not begin living together until about two weeks after the birth of this child, when defendant moved in to help rear his new daughter. When a child is born of an illicit relationship, and the parties subsequently enter into a common-law marriage, this marriage serves to legitimate the child. Evans v. Evans, 434 So.2d 254 (Ala.Civ.App.1982). But even after the common-law marriage of the parties, the father must recognize the child as his to legitimate it. § 26-11-1, Code 1975. Recognition must be unambiguous and clear. Coleman v. Sparkman, supra. The essence of this recognition is treatment of the child as one’s own. Sparkman, supra.

There was evidence from which the trial court could have found that defendant recognized this child as well as her younger sister as his own. His name appeared on their birth certificates and he knowingly allowed it; he attended P.T.A. meetings with plaintiff; defendant told coworkers that the children were “my babies.” Plaintiff also testified that she had a physical relationship with defendant and with no one else during the periods when the children were conceived. Defendant drove plaintiff to the hospital to give birth to the oldest child. The child at issue took the witness stand and stated that defendant was “my daddy” because “he used to live with us when I was a little girl, and tell me he’s my daddy.” Thus, the trial court could have concluded that defendant was the father of the oldest child.

Defendant says that he is also not the father of the youngest child. The trial court found, and we have agreed, that defendant and plaintiff were joined in a common-law marriage at the time the youngest child was born. When a child is born to a married woman, a strong presumption arises that the child is the legitimate offspring of her husband, and this presumption may be rebutted only by clear and convincing evidence which tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father. Leonard v. Leonard, 360 So.2d 710 (Ala.1978). This presumption was not rebutted. ,

As additional evidence of paternity the record reveals that plaintiff and defendant, along with the children, were ordered by the court to have an HLA blood test. Plaintiff was present for the test with her two children, but defendant did not appear for the test and informed the trial court that he would not allow himself to be so tested.

For the foregoing reasons, the judgment of the trial court is affirmed.

Plaintiff is awarded an attorney’s fee in the amount of $375.

AFFIRMED.

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


text:
    Beverly D. BENSON and Alicia R. Benson, a minor, who sues by her father and next friend, Steven R. Benson v. Jeanette Wallace VICK. Helen E. BAKER v. Jeanette Wallace VICK.
    Civ. 4320-A, 4320-B.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.
    Rehearing Denied Nov. 28, 1984.

      Billy L. Church of Church, Trussell & Robinson, Pell City, for appellant.
    John M. Fraley of McMillan & Spratling, Birmingham, for appellee.
   HOLMES, Judge.

The plaintiffs sued the defendant as a result of an automobile accident. After a trial by jury, verdicts were returned in favor of the plaintiffs. The plaintiffs, after the denial of their motions for a new trial by the trial court, appeal, contending that the amount of the verdicts and the resulting judgments were inadequate.

We find no error in the judgment of three of the plaintiffs but must reverse and remand the judgment of one of the plaintiffs.

Five separate plaintiffs, three of whom were occupants in the automobile involved in the accident, brought suit against the driver of the other vehicle. The other two plaintiffs are spouses of the injured occupants. Two separate suits were filed in the Circuit Court of Shelby County but were consolidated before trial. The appeals are also consolidated.

At this juncture we note that Helen Baker’s complaint was for her pain and suffering as a result of her injuries. Ralph Baker, the husband of Helen Baker, brought suit for the medical expenses of his wife. Beverly and Alicia Benson sought damages for their pain and suffering as a result of their injuries from the collision. Beverly Benson’s husband, Steven Benson, brought suit for his wife’s medical expenses and the damage to his car.

The jury returned the following verdicts: $5,000 for Helen Baker, $3,126.18 for Ralph Baker, $4,000 for Steven Benson, $1 for Beverly Benson, and $1 for Alicia Benson.

After a judgment was entered thereon, each plaintiff made a motion for a new trial. As indicated, these motions were subsequently denied.

The record reveals the following:

On May 27, 1982, the plaintiffs, Beverly Benson, her mother, Helen Baker, and Alicia Benson, the infant daughter of Beverly Benson, were traveling in the Benson car on Alabama Highway 145. As they crossed an intersection on that highway, the defendant, Jeanette Vick, driving her automobile, collided with the plaintiffs. As indicated, the jury found that the defendant’s negligence was the cause of the accident.

Much of the testimony concerning the injuries of the three occupants was in conflict or unsubstantiated.

Helen Baker testified that she was rendered unconscious by the impact of the collision. In addition, she testified that her left wrist was broken, that she received a cut near her left eye, and that she suffered injuries in her chest from the blow of the accident. Mrs. Baker stated that since the accident her activities have been limited and that she is unable to do some of her housework.

There was medical testimony that no injury could be found to Mrs. Baker’s chest and that her wrist had healed properly. There was also testimony that Mrs. Baker did not follow the doctor’s instructions, with her stating that, “I released myself” from the care of the doctor.

There was evidence that Ralph Baker’s damages for his wife’s medical expenses were in excess of $3,000.

As stated above, Ralph Baker was awarded $3,126.18 for the medical expenses of his wife, and Helen Baker was awarded $5,000 for her pain and suffering caused by the injuries.

Beverly Benson’s suit, as indicated, was based on her pain and suffering as a result of her injuries from the collision.

She testified that she was thrown against the car door by the force of the impact and rendered unconscious. She also testified that her shoulder was injured and that she suffered several cuts to her head, face, and arm. Mrs. Benson stated that for four months after the accident she suffered from dizziness and was unable to take care of her child.

The only medical testimony of Mrs. Benson’s injuries immediately after the accident was from medical records that were read into evidence by Mrs. Benson. These records indicated a contusion of her foot, a puncture wound in her left arm, a shoulder sprain, and cuts to the head.

There was additional medical testimony from a doctor who treated Mrs. Benson more than a year after the accident. At that time, a small piece of glass was removed from her arm, believed to have been received in the collision.

As indicated, Steven Benson brought suit for his wife’s medical expenses and for damages to his car. There was evidence that Mrs. Benson’s medical expenses were $1,297.49. The evidence regarding the model year and value of the Benson’s car was in dispute or unclear.

As stated earlier, Steven Benson was awarded $4,000, and Beverly Benson was awarded $1.

Alicia Benson, the infant daughter of Steven and Beverly Benson, brought suit through her father for the pain and suffering that was caused by her injuries. Beverly Benson testified that the child was “very bloody” after the accident and required twelve stitches in her nose. The officer who was on the scene after the accident testified that the child did not seem to be injured. There was no medical testimony of the child’s injuries.

As indicated, the jury awarded one dollar to the infant child as damages from the accident.

As best as this court can determine, all the plaintiffs, except Ralph Baker, appeal.

Helen Baker appeals, contending that her damages for pain and suffering were inadequate and that the trial judge erred in denying her motion for a new trial. We disagree.

The amount of damages awarded for physical pain and mental suffering is left to the sound discretion of the jury and is subject to correction only for clear abuse or passionate exercise of that discretion. Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975).

Since there is no yardstick to measure pain and suffering, we cannot say, in this instance, in view of the evidence as indicated above, that the jury abused its discretion in an award of $5,000 for pain and suffering. This is particularly true in view of the denial by the trial court of the motion for a new trial.

Whether to grant or deny a motion for a new trial is within the discretion of the trial judge and is presumed correct unless there is some plain and palpable error. Butler v. King, 437 So.2d 1300 (Ala.Civ.App.1983). Here we find no error.

Steven Benson presumably appeals, contending that the jury did not award an amount to compensate him for the medical expenses of his wife and the damage to his car.

As stated above, the amount of damages, as a general proposition, is largely within the discretion of the jury. Feazell v. Campbell, 358 So.2d 1017 (Ala.1978).

In this instance, the $4,000 that was awarded to Mr. Benson was more than the almost $1,300 of medical expenses for his wife, and the remaining amount may well be the value of the car. Again, the jury’s action, coupled with the trial court’s denial of the motion for a new trial, presents no error.

Beverly Benson and Alicia Benson, through her father, appeal, contending that they were not awarded any damages for their pain and suffering and that the trial court erred in denying their motion for a new trial on that issue. As stated, both were awarded one dollar.

An award of one dollar is, in effect, an award of nominal damages. When a plaintiff fails to prove any pecuniary loss or actual damage, he is entitled to recover, at least, nominal damages if the evidence shows that the defendant breached a duty-owed to the plaintiff. Williams v. Clark, 50 Ala.App. 352, 279 So.2d 523 (Ala.Civ.App.), cert. denied, 291 Ala. 803, 279 So.2d 526 (1973).

Put another way, if a cause of action is proved, the plaintiff is entitled, as a minimum, to nominal damages; and if the evidence shows more, assessment enters the field of compensatory damages. McDonald v. Amason, 39 Ala.App. 492, 104 So.2d 716 (Ala.Ct.App.), cert. stricken, 267 Ala. 654, 104 So.2d 719 (1958).

In the facts surrounding Beverly Benson, there is, to this court, “more.” There was testimony that Mrs. Benson did, in fact, suffer some injury, to wit, a hurt shoulder and some cuts. There was evidence from Mrs. Benson and her doctor that these injuries did cause her some pain and suffering. Additionally, as stated, Mrs. Benson’s husband was awarded $1,297.49 for her medical expenses from the injury. These medical expenses were not in dispute.

The Supreme Court of Alabama, in reversing this court, stated clearly that, if there are special or compensatory damages and proof of some “pain and suffering,” then there must be an award in excess of the special damages. Ex parte Patterson, 459 So.2d 883 (Ala.1984). See also McCain v. Redman Homes, Inc., 387 So.2d 809 (Ala.1980); Bibb v. Nelson, 379 So.2d 1254 (Ala.1980); Stone v. Echols, 351 So.2d 902 (Ala.1977).

Here, there is proof of pain and suffering, no matter how slight, without any award for such damage. As seen from the above, only nominal damages were awarded. Therefore, in light of the above cases, the learned and most distinguished trial judge erred in failing to grant Beverly Benson’s motion for a new trial.

While the above principles of law are applicable to the child, there is a fatal flaw in the surrounding facts. There is no proof of pain and suffering, as it is disputed whether or not there is even any injury. In other words, there was a failure to prove actual damages, i.e., injury and resulting pain and suffering.

As stated above, when the plaintiff fails to prove any actual damages but the defendant is found to have breached a duty to the plaintiff, the plaintiff is entitled to recover only nominal damages. Williams v. Clark, 50 Ala.App. 352, 279 So.2d 523 (Ala.Civ.App.), cert. denied, 291 Ala. 803, 279 So.2d 526 (1973).

The defendant-appellee, through able counsel, urges this court to affirm the action of the trial court, contending that the plaintiffs’ general allegations in the motions for a new trial were insufficient to bring the issue of damages before the trial court or present an issue for review by this court. We disagree.

The grounds set out in a motion for a new trial must sufficiently specify the precise error that is alleged to have occurred. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971).

The plaintiffs’ motions for a new trial made several references to an inadequate award. In fact, there were nine grounds in the motions that referred to damages. One specifically stated that “damages awarded failed to compensate the plaintiff for pain and suffering.” This is more than a mere general allegation.

To summarize, the trial court’s action in denying the motions for a new trial, as to Helen Baker, Steven Benson, and Alicia Benson, as stated above, was not in error and is affirmed. However, the trial court’s denial of the new trial motion as to Beverly Benson must be reversed for lack of an adequate award for pain and suffering.

This case is affirmed in part and reversed and remanded in part.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

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

      . There appears to be some doubt as to whether plaintiff Steven Benson has appealed. In fairness to all, we have assumed that he has appealed.


text:
    Robert L. ROBERTS v. Thomas INGRAM, etc.
    No. Civ. 4425.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.
    Rehearing Denied Nov. 21, 1984.
    Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    Sam M. Phelps and J. Russell Gibson III of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is an appeal from a judgment denying attorney fees pursuant to 42 U.S.C.A. § 1988 (West 1981). The trial court refused to award attorney fees in a case that originated as a teacher tenure case.

The teacher appeals from the denial of attorney fees and we affirm.

The dispositive issue is whether the trial court’s action refusing to award attorney fees is reversible error.

The factual background is not in dispute and is in pertinent part as follows: The tenured teacher’s employment contract was canceled after a hearing by the Tuscaloosa City Board of Education. The teacher appealed this cancellation of contract to the Alabama State Tenure Commission per Ala. Code (1975), § 16-24-10(b).

The Alabama State Tenure Commission dismissed the appeal and reversed the action of the Tuscaloosa City Board of Education. The commission’s order dismissing the appeal and reversing the board’s action was based upon the statute, Ala.Code (1975), § 16-24-10(b), which requires the record on appeal to the commission to be complete with a transcript of all testimony from a hearing before a board of education. In this case, the record was incomplete because the court reporter, hired by the Tuscaloosa City Board of Education, lost her notes regarding the testimony of two witnesses.

The Tuscaloosa City Board of Education reinstated the teacher per the Commission’s order. However, the board immediately suspended the teacher again and set a date for a hearing to again consider cancellation of the tenured teacher’s employment contract.

The teacher then sought a writ of mandamus or, in the alternative, a permanent injunction in the Circuit Court of Tuscaloosa County to prohibit the board’s efforts to terminate the teacher’s employment contract.

The circuit court granted the writ of mandamus, prohibiting further action by the board to penalize the teacher and requiring the board to follow the order of the Tenure Commission.

The Tuscaloosa City Board of Education appealed the grant of the writ of mandamus to the Alabama Court of Civil Appeals, which transferred the case to the Alabama Supreme Court. The supreme court affirmed the circuit court’s decision prohibiting the board from further action in the matter.

The teacher then filed a motion for the award of attorney fees in the Circuit Court of Tuscaloosa County. The teacher’s motion for an award of attorney fees is based upon 42 U.S.C.A. §§ 1983 and 1988 (West 1981). The circuit court denied the motion and the teacher appeals.

The teacher, through able counsel, contends that, as the “prevailing party” in the original tenure case and per the deprivation of his property in his employment, he should be awarded attorney fees pursuant to 42 U.S.C.A. §§ 1983 and 1988 (West 1981). Put another way, the teacher contends that the circuit court’s ruling on state statutory grounds, Ala.Code (1975), § 16-24-10, was pendent to a constitutional claim, namely, the 42 U.S.C.A. § 1983 (West 1981) due process claim for the depri-' vation of the property right in his employment.

As previously stated, we affirm the circuit court’s denial of an award of attorney fees. The following is an explanation by the trial judge of his order granting the writ of mandamus, and we are in agreement with this reasoning:

“At the 28 January 1983 hearing, the Court found the question to be decided before it was the meaning of ‘final and conclusive’ as set forth in Ala.Code § 16-24-8 when applied to the ruling of the Tenure Commission. The Tenure Commission’s decision that Roberts be reinstated was apparently based on Ala. Code § 16-24-10, which requires a full copy of the transcript of hearings be sent to the Commission on appeals. In the instant case, the school system did not comply with that section. ■ This Court found the reasons for noncompliance irrelevant. The ruling by the Tenure Commission was final and was entirely dis-positive of the issues presented to this Court. This Court read the Alabama statute; determined that the language ‘shall be final and conclusive’ was dispos-itive of the ease; and ruled accordingly. The Court granted a writ of mandamus on that basis and that basis alone.” (Emphasis added.)

The trial court emphasized that its decision was based entirely on the language of Ala.Code § 16-24-10 by distinguishing the cases Davis v. Everett, 443 So.2d 1232 (Ala.1983), and Still v. Personnel Board of Jefferson County, 406 So.2d 860 (Ala.1981). This is significant because the teacher contends that Davis effectively overrules Still.

The trial judge distinguished Still and Davis as follows:

“This Court has read and considered carefully the case of Still v. Personnel Board of Jefferson County, 406 So.2d 860 (Ala.1981). The Court has also considered the case of Davis v. Everett, 443 So.2d 1232 (Ala.1983). The plaintiff urges the holding in Davis is dispositive of this case. This Court finds Davis helpful but distinguishable from this case. The Davis court specifically addressed the constitutional issue in the case and made its findings in reliance on the Alabama Constitution. In the present case the findings were based on Ala.Code § 16-24-10 as applied to the ruling of the Tenure Commission and not on the constitutional issue, either Alabama or federal. Therefore we find that Still is still applicable to this matter.”

We agree that the Alabama Supreme Court’s decision in Still v. Personnel Board of Jefferson County, 406 So.2d 860 (Ala.1981), is applicable in this matter. In Still the supreme court held that

“[A] state court is not required to award attorneys’ fees to a party that prevails on state grounds only, regardless of what other federal claim is attached thereto....
“The trial court’s decision is not based on constitutional grounds but merely on the language of § 17-1-7. As such, there is no federal statutory or constitutional grounds to allow the award of attorneys’ fees.”

Still, 406 So.2d at 862 (citations omitted).

In the present case the trial court’s decision is not based on constitutional grounds but merely on the language of § 16-24-10. Therefore, there are no federal statutory or constitutional grounds allowing the award of attorneys’ fees.

This court finds that Still is applicable in this case rather than Davis v. Everett, 443 So.2d 1232 (Ala.1983), which granted attorney fees in an appeal under 42 U.S.C. § 1983 (1976) from the arbitrary denial of a liquor license, because of a municipal ordinance precluding the issuance of a liquor license to an applicant, whose premises were less than 600 feet from a church. Davis is not controlling in the present case because the Alabama Supreme Court in Davis stated that the “holding in Still is distinguishable from the case at bar because in Still the trial court specifically denied the justiciability of the federal claims.” Davis, 443 So.2d at 1236.

Here the trial judge specifically states that his action was not bottomed on a federal claim but on § 16-24-10, a state statute, i.e., the federal claim was denied.

We note that the teacher also contends that Still v. Personnel Board of Jefferson County, 406 So.2d 860 (Ala.1983), is overruled by Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981). We disagree.

The Alabama Supreme Court held in Terrell as follows: “[W]e hold this day that henceforth, courts of this state must accept jurisdiction over claims brought under 42 U.S.C. § 1983, if a § 1983 plaintiff selects a state court as his forum.” Terrell, 406 So.2d at 340.

First, we note that Still was decided after Terrell. Second, Terrell does not overrule Still because Terrell does not involve an appeal from the denial of attorney fees claimed pursuant to 42 U.S.C. §§ 1983 and 1988.

Additionally, the teacher contends that the Circuit Court of Tuscaloosa County, in its order denying attorney fees, amended its judgment in the original tenure action outside the thirty-day time limitation as required by Alabama Rule of Civil Procedure 59(b), (d), or (e). We disagree.

The teacher argues that the following language in the 1984 order denying attorney fees amended the 1983 order prohibiting further action by the Tuscaloosa City Board of Education to penalize the teacher:

“[T]he defendants did not follow the provisions of the chapter or abide by the decisions of the Tenure Commission. The paragraph additionally stated these actions were found to violate the ‘due process rights’ of the plaintiff. By executing the Order of 1 February 1983, this Court did not intend the meaning which plaintiff states that unfortunate choice of words connotes. This Court read that language as supporting what the Court ruled. That is, the termination of a tenured teacher in Alabama is entirely statutory and the language of the Alabama statute on the subject is clear. A ruling of the Tenure Commission is final. There was no other basis for ruling and the Court expressly rejected and has denied the federal and constitutional claims requested by plaintiff. The words ‘due process’ and ‘due process rights’ did not mean and were not meant to denote a constitutional or § 1983 basis problem.” (Emphasis added.)

This language did not alter, amend, or vacate the judgment in the original tenure action. In the original tenure case, the same circuit court judge granted a writ of mandamus prohibiting further action by the board to penalize the teacher.

This prohibitory order has not been changed in any way by the order denying attorney fees. Rather, the. above quoted language is an explanation of the denial of attorney fees.

Therefore, the teacher’s argument pursuant to A.R.C.P. 59(b), (d), or (e) is without merit.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    In the Matter of Christine REDMON and Yvette Redmon. Christine REDMON v. The ALABAMA STATE DEPARTMENT OF PENSIONS AND SECURITY FOR JEFFERSON COUNTY.
    No. Civ. 4313.
    Court of Civil Appeals of Alabama.
    Oct. 31, 1984.
    Rehearing Denied Nov. 28, 1984.

      Andrew LaPlante, Bessemer, for appellant.
    Edward L. Ramsey, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

On November 8, 1983, the Jefferson County Department of Pensions and Security (DPS) filed a petition to terminate the parental rights of Christine Redmon to custody of her daughters, Christine LeShaun Redmon and Yvette Redmon. On April 16, 1984, after an ore tenus hearing, the trial court terminated all legal rights of the mother in her children. Hence, this appeal was taken.

The mother contends DPS did not meet its burden of proof of showing no viable alternatives or less drastic measures. We have stated that this is one of the foremost considerations in terminating parental rights. Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.1979). In that case we also set out these less drastic measures:

“For example, a court would certainly consider returning the child to parental custody on a trial basis subject to certain definite conditions being met and subject to supervision by DPS workers or other trained personnel; or temporary custody in a foster home with specific visitation with the child and conduct requirements to be met by parents; or that the parents are to be deprived of custody temporarily pending a correction of deficiencies in the home environment that were having or would have a harmful effect on the child should the child be placed back in the family relationship.”

We find that such alternatives were considered. The facts leading up to this petition start in 1975. This was the mother’s first contact with DPS and concerned a request for financial aid. DPS’s first involvement with the parent/child relationship came in 1978 when they received a neglect complaint from Children’s Hospital in Birmingham. Christine LeShaun Red-mon had been brought into the hospital and was found to be suffering from malnutrition and severe diaper rash. The mother had allegedly disappeared after admitting the child and appeared to be intoxicated. The child was removed from the mother’s custody, due to neglect, in February 1978, and placed in the legal custody of DPS.

Investigation reports show the mother graduated from high school in 1976, but had been employed only once for two weeks as a dishwasher. She testified that she has not tried to get another job and relies on food stamps for her only means of support.

DPS allowed the mother visitation of the child and required the mother to show she could maintain a home for the children before this child would be returned to her. During this time, and up until the date of trial in this case, reports show the mother had no single place to live but instead stayed either with the maternal grandmother or one of several men. Many times the DPS worker was unable to locate the mother or the children. In spite of the non-compliance with the DPS goals and in spite of the fact that the mother did not appear for the hearing to regain custody of the child, the court returned the child to the mother’s custody in July 1979.

More complaints of neglect and abuse were received by DPS in 1980. Visits by the DPS worker found the children ill clothed and filthy, with sears and sores on one child’s back from apparent beatings. The mother was frequently found intoxicated. Custody of Yvette Redmon was awarded to the maternal grandmother in March 1981.

DPS continued working with the family of these children but the home environment showed little progress. The grandmother’s home was constantly filthy with old liquor bottles and children’s dirty clothes strewn all over the house. More complaints of abuse were received in December of 1981 and the worker arrived to find the grandmother passed out on the floor of the living room in a highly intoxicated state, dirt and clothes throughout the house, weeks of dirty dishes and old food piled on tables and cabinets, and very little edible food in the house. More scars were found on one child’s back.

In June 1982, DPS was awarded custody of both children. DPS then allowed visitation and started working again with the mother. Specific goals were worked out between the mother and DPS. In order for the mother to regain custody, she was required to make bi-monthly visits verified ahead of time by telephone; get a job or apply for social security based on physical disability; and get some type of reliable transportation. Again and again these goals were not achieved. In the last two years, the mother visited the children only five or six times. The record also shows that in May of 1983, the mother was arrested for public drunkenness. After the above “less drastic” measures were tried and failed, DPS filed the petition for termination of parental rights.

The mother next attacks the statute under which the court found the children dependent On the grounds that it is inconsistent. § 12-15-65, Code of Alabama 1975, lists, among other things, the standards of proof for hearings involving (1) delinquency, (2) in need of supervision and (3)dependency. Section 12-15-65(d) sets the burden of proof on delinquency as “beyond a reasonable doubt” while § 12-15-65(e) sets the burden of proof on dependency and in need of supervision as “clear and convincing.” The mother states the burden of proof should be “beyond a reasonable doubt” throughout the statute in order to be consistent.

Alabama courts have long held that the burden of proof for termination of parental rights is “clear and convincing.” Vinson v. Agape of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ.App.1982). The standard of proof for determining guilt or innocence of a child accused of a crime is “beyond a reasonable doubt.” A different standard of proof is permissible if guilt or innocence of a crime is not involved. Ash v. State, 424 So.2d 1381 (Ala.Crim.App. 1982). By the same reasoning, a different standard of proof for dependency is permissible in the case at bar.

The mother further alleges that the trial court erred in failing to track the language of § 12-15-65(e) in its order. The statute says proper disposition of a case is based on a finding that the child is “dependent and in need of care and supervision.” The trial court in this case found both children to be “dependent children in need of the court’s protection.”

We have previously held that failure to track the language of § 12-15-65 is not reversible error. Phillips v. Alabama Department of Pensions and Security, 394 So.2d 51 (Ala.Civ.App.1981). This is especially true when the final order grants the petition of DPS which does track that language. Phillips, supra. No error exists in this regard.

The mother also objects to the failure of the court to state the standard of proof used. Appellant cites no cases to support an argument that there is a requirement that the trial court set out the standard of proof used. There is no reason to believe that the court did not make its finding based on clear and convincing proof as required by law.

Finally, the mother argues that there was not sufficient evidence to support the court’s termination of her parental rights. The court’s judgment in cases of this nature, after hearing the evidence ore tenus, will be given every favorable presumption and will not be disturbed unless palpably wrong. Smith v. State Department of Pensions and Security, 340 So.2d 34 (Ala.Civ.App.1976).

The facts of the case show a permanent incompetence of the parent. DPS has determined the children potentially adoptable and feels the transition would be better now than two or three years from now. We hold that DPS has shown the termination of parental rights will better serve the future welfare of the children.

For the foregoing reasons, we find no error in terminating the mother’s parental rights.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.