author: HOLMES, Judge.

text:
    CIVITANS CARE, INC., and Huntsville Group Homes, Inc. v. BOARD OF ADJUSTMENT OF The CITY OF HUNTSVILLE.
    Civ. 3450.
    Court of Civil Appeals of Alabama.
    May 4, 1983.
    Rehearing Denied June 1, 1983.
    Certiorari Denied Aug. 26, 1983 Alabama Supreme Court 82-878.

      James B. Schrimsher of Morring, Schrimsher & Conchin, Huntsville, for appellant.
    Charles H. Younger, City Atty., and Walter A. Record, III, Asst. City Atty., Huntsville, for appellee.
    Frances Heidt of Stewart, Falkenberry & Whatley, Birmingham, for amicus curiae Ass’n For Retarded Citizens.
   HOLMES, Judge.

This is an appeal from a Madison County Circuit Court decision that two group homes for mentally disabled adults were not permissible under the applicable zoning ordinance.

The case was submitted upon stipulated facts. At issue is the location of two residential programs for developmentally disabled citizens, designed to provide a family-like setting for the residents, in a neighborhood zoned for family-only occupancy.

Residents will participate in some day programs aimed at teaching the residents the skills needed to live successfully in the community. Training will be “informal and formal as required,” with concentration on living and social skills.

Two duplexes have been built specifically for this purpose by Civitans Care, Inc., a non-profit organization. The duplexes are designed to house residential managers on one side and six developmentally disabled adults on the other side. One duplex will provide a home for women, and the other for men.

Civitans Care, Inc., leased the two buildings to Huntsville Group Homes, Inc., a non-profit corporation which provides handicapped and mentally retarded persons with housing and services for their needs. Huntsville Group Homes, Inc., will receive funding from the Alabama Department of Mental Health for these group homes. Residents in the homes will contribute their share of costs to the extent possible, but no one will be denied entrance if he cannot pay.

Meals are to be provided to the residents. In most part these meals will be cooked by a staff with help from the residents.

After a six-week trial period, occupancy by a resident is to be permanent, with the home considered as his only residence. Residents may leave when the program can no longer benefit them, or because they are able to live in a less restrictive environment.

The Board of Adjustment of Huntsville denied the request of Civitans Care, Inc., to interpret the zoning ordinance to find such homes do not violate the family-only restriction, and denied the alternative request for a variance. On appeal from the Board of Adjustment, the circuit court also denied the request of Civitans for both a favorable interpretation or a variance. From this, Civitans Care, Inc., appeals, and we affirm. The denial of the variance was not appealed and is not an issue.

In his final judgment, the learned trial judge stated that, based on City of Guntersville v. Shull, 355 So.2d 361 (Ala.1978), he must hold the group homes were either rooming or boarding houses and not permissible uses within a family-only zone. The trial judge noted that but for Shull he “would be inclined to rule in plaintiff’s [Civ-itans Care, Inc.] favor,” because the broad definition of family in the Huntsville zoning ordinance “arguably encompasses” the group homes situation. We are equally impressed that the decision in Shull appears dispositive of this case.

Appellant and amicus, both of whom have provided this court with excellent briefs for which we are grateful, argue that Shull is distinguishable, and not controlling in that Shull was decided without reference to any definition of “family.” The appellant also points out that Shull was decided without brief from the owners of the halfway house, and that the halfway house in Shull was of a different character.

However, Shull did determine that the halfway house in question was a boarding or rooming house under definitions quite similar to those in the Huntsville ordinance. Whether or not Shull is conclusively binding authority on the facts in the instant case or not, we deem it persuasive guidance from our supreme court.

The dispositive issue in the instant case is a narrow one. Are the proposed group homes a permissible use under the governing Huntsville ordinances? More specifically, does the written definition of “family” in the ordinances encompass the situation of these group homes, or does the definition of rooming or boarding house encompass these group homes? While Shull may not answer the question concerning “family,” it may answer the question as to boarding or rooming houses.

As stated, the dispositive issue in this case concerns an interpretation of the Huntsville ordinances. The area in which the group homes have been built and hope to operate are zoned for a detached residence occupied by one family, or residence occupied by two families with separate housekeeping and cooking facilities for each. The ordinance defines families as: “Any number of individuals living together as a single housekeeping unit and doing their own cooking on the premises.” Huntsville City Ordinance § 7.1.21.

The ordinances define a boarding house as “a building other than hotel, cafe, or restaurant where, for compensation, meals are provided for three or more persons.” § 7.1.8.

A rooming house is defined as “any building or portion thereof which contains not less than three, or more than nine guest rooms which are used, or let, for occupancy by individuals for compensation paid directly or indirectly.” § 7.1.37.

At the onset, we note that construction of a zoning ordinance is a question of law. Burnham v. City of Mobile, 277 Ala. 659, 174 So.2d 301 (1965). Statutes or ordinances which impose restrictions on the use of private property are strictly construed and their scope cannot be extended to include limitations not therein included or prescribed. Smith v. City of Mobile, 374 So.2d 305 (Ala.1979); Robertson v. Western Baptist Hospital, 267 S.W.2d 395 (Ky.App. 1954).

We acknowledge there is a split of authority among the states as to the proper classification of group homes under zoning ordinances. See Annot., 71 A.L.R.3d 697 (1976); 100 A.L.R.3d 876 (1980).

In Shull, the Alabama Supreme Court held that a halfway house for former mental patients was a rooming or boarding house, and not permissible use in a single family and multi-family dwelling zone.

In deciding Shull, the court interpreted the applicable Guntersville zoning ordinances. The case dealt with a halfway house designed to ease released mental patients back into the community. One of the factors discussed by our supreme court in Shull concerned compensation to the operators of the home. The operators of Shull house were paid for their services to the residents. In the instant case, the owners and operators of the group homes, although non-profit corporations, will receive compensation to support the program. Some monies will be state funds, some will come directly from the residents. The applicable Huntsville ordinance speaks of “compensation paid directly or indirectly.” § 7.1.37.

Another factor considered in Shull is the preparation and serving of meals to the residents, which the court in Shull said was evidence the home was a boarding house. In the instant case, the contract requires that the operators provide the residents with meals. The applicable Huntsville ordinance speaks of a boarding home as a place where “for compensation meals are provided for three or more persons.” § 7.1.8.

We therefore find that the proposed group homes are either “boarding” or “rooming” houses, and as such the residents are logically precluded from constituting a single family.

Although there is authority to the contrary, there are also cases which support the result reached in this case. See Penobscot Area Housing Development Corp. v. Brewer, 434 A.2d 14 (Me.1981), holding that lack of permanency of residents, lack of control over who residents would be and lack of permanent authority figure made a group home more like a boarding house, and not like a family home; Carroll v. Washington Township Zoning Commission, 63 Ohio St.2d 249, 408 N.E.2d 191 (Ohio 1980), holding that where residents stayed only six months to one year they did not fall within the definition of a family; Wengert v. Zoning Board of Upper Merion Township, 51 Pa.Cmwlth. 79, 414 A.2d 148 (Pa.1980), holding that where the court committed children to a group home in lieu of commitment to an institution, residents of group were not a family; St. Luke Evangelical Lutheran Church v. Zoning Hearing Board, 43 Pa.Cmwlth. 159, 403 A.2d 128 (Pa. Cmwlth.1979), in dicta, in footnote 1, the court said compensation received for residents was a factor in deciding group home residents were not a family; and Browndale International, Ltd. v. Board of Adjustment for County of Dane, 60 Wis.2d 182, 208 N.W.2d 121, cert. denied, 416 U.S. 936, 94 S.Ct. 1933, 40 L.Ed.2d 286 (1973), holding that where a group home for mentally disturbed children was run for commercial reasons, residents were not a family.

In addition, Civitans Care, Inc., contends state policy promoting deinstitution-alization should pre-empt local ordinances which exclude group homes. This contention appears to assume group homes are prohibited throughout Huntsville, and this is not the case. Furthermore, a state policy favoring establishment of group homes, assuming Alabama has such a policy without so finding, does not necessarily preempt reasonable local zoning regulations. Courts have upheld local ordinances which do not totally prohibit the establishment of group homes but require only that a facility conform to reasonable criteria. See, e.g., People v. Renaissance Project, 36 N.Y.2d 65, 68, 364 N.Y.S.2d 885, 324 N.E.2d 355 (1975). In light of the apparent facts that these group homes may presumably locate in other areas in Huntsville and that the zoning restrictions at issue are reasonable, we fail to see why the zoning regulations should be pre-empted.

In view of the above, we affirm the lower court’s holding that the proposed group homes were either boarding or rooming houses.

AFFIRMED.

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

      . Several recent law review articles are concerned with this issue. Interested parties might wish to read Boyd, “Strategies in Zoning and Community Living Arrangements for Retarded Persons: Parens Patriae Meets Police Power,” 25 Vill.L.Rev. 273 (1980); Note, “ Group House of Pott Washington v. Board of Zoning and Appeals: Encroachment of Community Residences Into Single Family Districts,” 43 Alb.L.Rev. 539 (1979); Lippincott, “A Sanctuary For People: Strategies for Overcoming Zoning Restrictions on Community Homes for Retarded Persons,” 32 Stan.L.Rev. 767 (1979); “Zoning for the Mentally Ill: A Legislative Mandate,” 16 Harv.J. on Legislation 853 (1979). We might also refer interested parties to R. Anderson, American Law of Zoning, 2d ed. (1977) § 16.05, § 9.29, § 9.32; and to B. Gailey, Group Homes and Single Family Zoning, 1982 Zoning and Planning Law Handbook 159.

      . See Oliver v. Zoning Commission of Town of Chester, 31 Conn.Supp. 197, 326 A.2d 841 (1974), holding a group home for mentally retarded adults was not a boarding or rooming house because the residents operated as a single housekeeping unit; City of West Monroe v. Ouachita Association for Retarded Children, 402 So.2d 259 (La.App.1981), holding a group home for mentally retarded adults was definitely not a boarding or rooming house; Linn County v. City of Hiawatha, 311 N.W.2d 95 (Iowa 1981), holding the preparation of food predominantly by the operators of a group home did not alter the essential character of the group as a family, and did not make the home a boarding house. See also cases cited in 100 A.L.R.3d 876 and 71 A.L.R.3d 693.


source: Caselaw Access Project

author: BRADLEY, Judge. PER CURIAM.

license: Public Domain

text:
    Ex parte The DEPARTMENT OF PENSIONS AND SECURITY OF the STATE OF ALABAMA. (Re In the matter of the ADOPTION OF Baby Girl BARBER).
    Civ. 3549.
    Court of Civil Appeals of Alabama.
    May 11, 1983.
    As Modified on Denial of Rehearing June 24, 1983.
    Certiorari Denied Sept. 2, 1983 Alabama Supreme Court 82-929.

      Charles A. Graddick, Atty. Gen., Mary Lee Stapp and Clyde P. McLendon, Asst. Attys. Gen., and Robert E. Gibney of Kil-born & Gibney, Mobile, and William H. Traeger, III, of Manley & Traeger, Demop-olis, for appellant.
    G. Daniel Evans of Evans & Lyerly, Birmingham, for appellee.
   BRADLEY, Judge.

This is an adoption case.

On May 20, 1981 the Department of Pensions and Security (hereinafter referred to as DPS or the department) was awarded custody of Baby Girl Barber by an order which terminated parental rights and instructed the department to find an adoptive home for the infant. Prior to this time Mr. and Mrs. Donald Stuart of Livingston, Alabama, had applied through DPS to become adoptive parents and had undergone the required procedures to gain the department’s approval. After the court order of May 20, 1981, DPS conducted some further evaluations and chose the Stuarts for a trial placement of Baby Girl Barber. The terms of this trial placement, which were outlined in a meeting between DPS and the Stuarts and specified in a contract signed by both parties, left custody of the child in the department. By their agreement DPS was given the right to terminate the trial placement at any time, and the Stuarts promised not to institute adoption proceedings without the approval of DPS. The child was thereafter placed in the Stuart home in August of 1981.

Shortly after the trial placement began, a county social worker with DPS in Livingston received an anonymous telephone call in which she was told that Donald Stuart was engaged in an extramarital affair and that the Stuarts’ marriage was in jeopardy. This information was denied by both Donald and Darlene Stuart. Thereafter, a second anonymous telephone call was made to the county worker with more specific allegations concerning Stuart’s extramarital affair; and, again, the information was denied by both the husband and wife. On December 30, 1981 Mrs. Stuart contacted the county social worker and told her that Mr. Stuart had admitted that he was involved in an extramarital relationship. She also informed the DPS social worker that she intended to seek a divorce from her husband and requested that she be allowed to proceed with the adoption. The county worker, after making contact with state DPS officials, informed Mrs. Stuart that the department would investigate further. Subsequently, Mrs. Stuart moved into her family’s home in Aliceville with the child. On January 26, 1982 the department called a meeting at which various DPS social workers were present together with both Mr. and Mrs. Stuart and at which the department took the child from Mrs. Stuart, citing as its reason the Stuarts’ breach of the temporary placement agreement. Specifically, the department stressed as its reason for taking the child the fact that the Stuarts were getting a divorce and that the placement agreement had emphasized that the child would be placed with a two-parent family.

On February 3, 1982 Mrs. Stuart filed a petition in the Sumter County Probate Court seeking to adopt Baby Girl Barber. In her petition Mrs. Stuart claimed that DPS had arbitrarily and capriciously withheld its consent for the adoption. The department filed a motion to dismiss. Without a hearing the probate court granted the department’s motion to dismiss. Mrs. Stuart requested and was granted a rehearing. Before a rehearing could be held, Mrs. Stuart’s motion to transfer the matter to the district court was granted. An ore tenus hearing was held in the district court which found that DPS had arbitrarily and capriciously withheld its consent for the adoption. From the proceedings in the district court, DPS has filed both a petition for extraordinary relief and an appeal to this court. Mandamus is the proper vehicle for review in this case. See Ex parte Adamson, 408 So.2d 151 (Ala.Civ.App.1981).

We note at the outset that counsel for Mrs. Stuart has filed a motion to strike the reply brief of the department on grounds that it was filed late and that it contains matters which were not presented to the trial court. While we deny the motion, we assure counsel for both parties that we have limited our examination of the present proceeding to matters which are contained in the record.

In its petition for mandamus, prohibition, or other extraordinary relief, DPS has urged us to set aside the district court’s order of November 16, 1982 in which it found that the department had acted arbitrarily and unreasonably in withholding its consent for the adoption. The department’s argument is based on our decision of Sanders v. Department of Pensions & Security, 406 So.2d 948 (Ala.Civ.App.1981), in which we held that consent by DPS is a jurisdictional prerequisite to an adoption proceeding and that a court may not proceed in the absence of such consent unless it is found that the department acted arbitrarily and unreasonably in withholding it.

Mandamus is an extraordinary remedy which should be granted only when there is a clear showing that the trial court abused its discretion. Ex parte Hartford Insurance Co., 394 So.2d 933 (Ala.1981). Absent any abuse of discretion, mandamus will not lie.

When the district court took cognizance of the instant adoption proceeding after it had been transferred from the probate court, it set down as the sole issue for determination whether DPS had arbitrarily and unreasonably withheld its consent for Mrs. Stuart to proceed with her adoption of Baby Girl Barber. Moreover, the hearing was conducted on this sole issue and was concluded by an order of the district court in which it found that DPS had, in fact, acted arbitrarily and capriciously in the matter. We have stated in our decision of In re Roberts, 349 So.2d 1170 (Ala.Civ.App.1977), that what constitutes arbitrary and capricious action on the part of DPS is a question of fact. Thus, in its hearing and in its order, the trial court was involved in making a factual determination of whether the department had unreasonably withheld its consent to the adoption. The question before this court then is whether the trial court abused its discretion in holding that DPS arbitrarily and capriciously withheld its consent.

In its brief and argument DPS states that it has a legal duty to consent or refuse to consent to adoptions on the basis of the best interests of the child. The department urges us to reverse the district court’s finding on the basis of the fact that Mrs. Stuart did not meet her burden of proof in demonstrating that it had acted arbitrarily and unreasonably. See Sanders v. State Department of Pensions & Security, supra; In re Roberts, supra. The department emphasizes the terms of the temporary placement agreement with the Stuarts which gave it the right to terminate the temporary placement at any time. More specifically, DPS argues that its policies require that all infants be placed in two-parent homes. The department claims that such a standard is based on sound reasons and that it had been explained to Mrs. Stuart at the time of the temporary placement. Since the standards for termination were based on sound reasons and previous departmental practice and since Mrs. Stuart had been informed of these standards, DPS claims that the trial court erred in finding that it had acted arbitrarily and capriciously in withholding consent.

Mrs. Stuart, in urging us to uphold the trial court’s decision, states that she informed a county social worker on December 30, 1981 that she intended to seek a divorce from her husband. She also says that she told the county worker that she wished to proceed with the adoption and was informed that the department would investigate further. Mrs. Stuart indicates that Baby Girl Barber was cared for and loved during the time that she remained with her and for this reason further claims that the department’s decision to remove the child on January 26, 1982 was made without justification and in contravention of its promise to aid her in completing the adoption process as a single parent.

Again, we point out that anyone seeking to adopt a child whose permanent custody has been placed with DPS must have the department’s consent and, if such consent is refused, the burden of establishing that such consent was arbitrarily refused is on the party seeking adoption. See In re Roberts, supra.

In State Department of Pensions & Security v. Whitney, 359 So.2d 810 (Ala.Civ. App.1978), we provided a definition of what constitutes an arbitrary and unreasonable withholding of consent for an adoption, saying:

“In the present case the probate court found that DPS had arbitrarily and unreasonably withheld its consent to the adoption. However, a determination by an administrative agency is not ‘arbitrary’ or ‘unreasonable’ where there is a reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards.” (Citations omitted.)

The supreme court, in its decision of Pritchett v. Nathan Rodgers Construction & Realty Corp., 379 So.2d 545 (Ala.1979), stated that arbitrariness is present when a governmental entity lacks standards on which to make its determination and proceeds on a “case-by-case basis.” Although there is no fixed definition of arbitrary and unreasonable action through which to review the instant appeal, the cited decisions do hold that if it be shown that DPS was acting in the absence of fixed standards on a case-by-case basis, the trial court’s finding that the department arbitrarily withheld its consent for adoption must be upheld.

DPS urges us to find that its actions were not arbitrary and unreasonable because it was acting on the basis of a standard which required that infants be placed with two-parent families rather than with a single adoptive parent. The department says that this standard is approved in national adoption guidelines and that Mrs. Stuart had been made aware of it through the preplacement conference and tentative placement agreement. The record indicates that DPS has long followed the practice of placing infants with two-parent families and further shows that this procedure has wide acceptance and is thoroughly grounded in logic.

The evidence adduced at trial indicates that DPS acted under its guidelines during the time that it investigated the home of Donald and Darlene Stuart as an adoptive resource for Baby Girl Barber. During this period the department was making an effort to see that the infant was placed in a home where she would be raised by two parents. The initial trial placement of Baby Girl Barber in the Stuart home and the investigation which preceded it were conducted under standard DPS procedures and governed by department policy. However, when Mrs. Stuart approached a DPS official on December 30, 1981 to inform her that she was getting a divorce and to solicit the department’s aid in proceeding with the adoption as a single parent, she was told that DPS would investigate further. After this conference DPS conducted an investigation which the trial court could have concluded was aimed at a determination of whether Mrs. Stuart, as a single parent, would be permitted to adopt the child. Concerning this phase of the investigative procedure a DPS officiál stated at trial: “We were considering her as an adoptive resource to determine if the child’s best needs would be served [by allowing it] to remain in that home because the child was [already] in her home.”

From the evidence before it, the trial court could reasonably have concluded that DPS had in this instance, in effect, abandoned its policy of seeking a two-parent home for Baby Girl Barber and that it had proceeded with Mrs. Stuart’s case on an ad hoc basis. Despite the fact that guidelines existed under which the department should have sought a two-parent home for Baby Girl Barber, DPS proceeded with an investigation of Mrs. Stuart as a single-parent adoptive resource. After so doing, the department is unable to argue later that it was following its standard of family placement when it took Baby Girl Barber from Mrs. Stuart on January 26,1982. When the department failed to notify Mrs. Stuart within a reasonable time after December 30,1981 that it would have to terminate the trial placement according to the agency’s established guidelines and chose, rather, to proceed with an investigation which, by its own admission at trial, was outside its guidelines, it was then proceeding with Mrs. Stuart’s case on an ad hoc basis. During the period between December 30, 1981 and January 26, 1982, DPS conducted a further investigation which was favorable to Mrs. Stuart; and, throughout the entire placement period, the department never questioned that the child was loved and cared for. These facts, coupled with the department’s decision to proceed with the adoption investigation in contravention of its own standards, are supportive of the trial court’s conclusion that DPS acted arbitrarily and capriciously in withholding its consent for the adoption.

The department lays great stress on the fact that the tentative placement agreement gave it the right to take the child at any time and also required that the Stuarts maintain a suitable family environment for Baby Girl Barber. The existence of this agreement and Mrs. Stuart’s awareness of it, DPS claims, gave it the right to terminate the tentative placement and reasonably withhold its consent for the adoption. Again, however, the record indicates that DPS failed to follow its own agreement on December 30, 1981 when it left the child with Mrs. Stuart after being informed that she was seeking a divorce. It can avail DPS nothing in this court to rely on the breach of the agreement on Mrs. Stuart’s part when it failed to follow its own standards under the contract. Finally, the department contends that during the period in which Baby Girl Barber remained with Mrs. Stuart after December 30, 1981, it was waiting for some sign of reconciliation between the Stuarts and that when none was forthcoming the decision to terminate the placement became necessary. However, there is absolutely no evidence on the record to indicate that the department ever communicated such an intention to Mrs. Stuart, and there is evidence to show that Mrs. Stuart could have reasonably believed that the department was investigating her for a single-parent adoption.

We conclude, therefore, that the trial court’s finding that DPS acted arbitrarily and capriciously in withholding its consent for the adoption of Baby Girl Barber is supported by the evidence and that it did not abuse its discretion in making such order. For this court to find otherwise would be to substitute our judgment for that of the trial court. This, under these circumstances, the law does not allow.

WRIT DENIED.

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

ON REHEARING

PER CURIAM.

OPINION MODIFIED; APPLICATION FOR REHEARING OVERRULED.

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

BRADLEY, J., not sitting.


author: WRIGHT, Presiding Judge.

text:
    Patricia Lynn McPHERSON v. Kenneth Jimmy KING.
    Civ. 3650.
    Court of Civil Appeals of Alabama.
    May 11, 1983.
    Rehearing Denied June 15, 1983.
    Certiorari Denied Sept. 2, 1983 Alabama Supreme Court 82-922.

      M.E. Murchison of Murchison & Sutley, Foley, for appellant.
    John Earle Chason of Chason & Chason, Bay Minette, for appllee.
   WRIGHT, Presiding Judge.

This is an appeal from summary judgment granted the defendant (appellee) Kenneth Jimmy King from a petition to modify and set aside the parties’ original divorce decree.

Patricia Lynn McPherson, appellant, and Kenneth Jimmy King were divorced, after twenty years of marriage, by final decree entered December 4, 1979. The decree incorporated an agreement between the parties providing for division of property, including the following pertinent provision:

“2. DIVISION OF PROPERTY.
(a) Husband will retain possession of the home jointly owned consisting of approximately 28 acres and the home place, and the Husband shall continue to make the payments on the mortgage, held by the First Southern Federal Savings & Loan Association, and shall keep the property fully insured, pay taxes, and maintain the property. Should the Husband elect to sell the home jointly owned, then and in that event, the Wife shall receive one-half (½) of the sale price, less expenses included in the sale.”

The divorce decree does not provide for the disposition of the parties’ personal property, with the exception of certain life insurance policies and a jointly owned savings certificate. The parties had no minor children at the time of the divorce.

On April 5,1982, Ms. McPherson filed her petition to modify and set aside the divorce decree on the grounds of misrepresentation and changed circumstances. Ms. McPherson sought to have the court liquidate the assets owned jointly by herself and Mr. King and make an equitable division of the same. On December 20, 1982, the court granted Mr. King’s motion for summary judgment, and Ms. McPherson appeals that final order.

Rule 60(b), A.R.Civ.P., provides for relief from a final judgment or order by reason of fraud, misrepresentation, or other misconduct of an adverse party. Rule 60(b) further provides that a motion for relief on those grounds must be made within four months after the judgment is entered. Ms. McPherson’s motion to set aside her divorce decree was made more than two years after that decree was entered. She is therefore precluded from bringing such a motion. Id.; Wilkerson v. City Sales Company of Mobile, Inc., 374 So.2d 1333 (Ala.1979).

Ms. McPherson correctly states, however, that under Rule 60(b), she is permitted to bring an independent action on the judgment to set it aside for fraud upon the court. Rule 60(b) provides, in pertinent part:

“This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three years after entry of the judgment (or such additional time as is given by §§ 6-2-3 and 6-2-8, Code of Ala.) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Less than three years had passed from the date of entry of the prior divorce decree at the time Ms. McPherson filed her petition to modify and set aside the decree. Ms. McPherson contends the trial court erred in granting the adverse motion for summary judgment because her petition constituted an independent action on the judgment. Ms. McPherson alleges that Mr. King committed a fraud upon the court when he: (1) misrepresented to her that he and she would divide the marital property at a later date without judicial intervention; and (2) failed to inform her of the finality of the property settlement.

In Brown v. Kingsberry Mortgage Co., 349 So.2d 564 (Ala.1977), the Supreme Court of Alabama relied on the definition of “fraud upon the court” found in 7 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 60.33 (2nd ed. 1982):

“ ‘Fraud upon the court’ should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.”

349 So.2d at 568. The next sentence from that same passage of Moore’s Federal Practice is also instructive: “Fraud inter parties, without more, should not be a fraud upon the court....” Moore’s Federal Practice, supra.

It is clear from these sources that the alleged fraud in the present case did not constitute a “fraud upon the court.” Given the preference in our courts for finality of judgments, Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App.1980), cert. denied, 392 So.2d 1196 (Ala.1981), Ms. McPherson was not due a hearing on her allegations of fraud.

Ms. McPherson also appeals the trial court’s grant of summary judgment against her petition to modify the prior decree upon a showing of material change in circumstances. Ms. McPherson contends that the mortgage payments, which by the prior decree were made the responsibility of Mr. King, are in the nature of periodic alimony, and may be so modified. The rule allowing modification of alimony is stated in Aiken v. Aiken, 221 Ala. 67, 68, 127 So. 819-820 (1930):

“Where a decree for permanent alimony is not for a lump sum, nor otherwise indicative of a division of property merely, but a monthly allowance for the wife’s maintenance, running into the indefinite future, and payable, if need be, from the future earnings of the husband, the court has power to modify the same because of changed conditions of the parties, whether such power be expressly reserved or not.”

Ms. McPherson argues that because the mortgage payments are contingent upon the time when the house is sold, they are indefinite, and therefore may be modified upon a showing of changed circumstances.

According to Aiken v. Aiken, supra, permanent alimony is a monthly allowance for the wife’s maintenance. In DuBoise v. DuBoise, 275 Ala. 220, 227, 153 So.2d 778, 785 (1963), the Supreme Court of Alabama said that alimony “is payable in installments for the support of the wife and children.” (Emphasis added.) The husband’s common law obligation to support his wife is the basis of the alimony statute. Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966).

Obviously, the mortgage payments in the instant case were not for the support or maintenance of the wife. Although the wife owns a half-interest in the mortgaged property, the husband is in possession thereof. Any benefit to the wife from the mortgage payments is incidental to her interest in the property and does not in any way contribute to her support and maintenance. Thus, the mortgage payments made by the husband do not constitute periodic alimony.

The agreement involved in this appeal and made a part of the parties’ divorce decree was prefaced by the statement: “Whereas, the parties desire to enter into an agreement with respect to their property rights....” The provision most directly involved in this appeal was under the heading, “DIVISION OF PROPERTY.” Thus, as in McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977), it appears that the trial court intended that the husband’s payment of the mortgage liability be part of the property settlement.

“In contrast to an award of child support and periodic alimony, a provision for a property settlement in a decree of final divorce is not a continuous provision. After a lapse of thirty days from the date of rendition of the decree, a court of equity cannot modify a property settlement provision except to correct clerical errors.”

345 So.2d, at 319. Thus the mortgage payments made by the husband in the present case were not modifiable.

In an appeal from a summary judgment, this court looks to the same factors considered by the trial court in its ruling. Chiniche v. Smith, 374 So.2d 872 (Ala.1979). Summary judgment (Rule 56, A.R.Civ.P.) is only appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Bryant v. Morley, 406 So.2d 394 (Ala.1981). Viewing the facts of this case and all reasonable inferences therefrom most favorably to Ms. McPherson, the non-moving party, it is clear that she could not have recovered under any discernible set of circumstances. Id. Mr. King was entitled to summary judgment as a matter of law. We therefore affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Patricia Hunter PARKER v. DEPARTMENT OF PENSIONS AND SECURITY of the STATE OF ALABAMA.
    Civ. 3530.
    Court of Civil Appeals of Alabama.
    May 18, 1983.
    Rehearing Denied June 15, 1983.
    Certiorari Denied Aug. 26, 1983 Alabama Supreme Court 82-919.

      H. Keith Pitts of Hawkins & Pitts, Gadsden, for appellant.
    Clyde P. McLendon, Asst. Atty. Gen. and James E. Turnbach of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellee.
   HOLMES, Judge.

This is a parental rights termination case.

The Circuit Court of Etowah County, after an ore tenus hearing, terminated the parental rights of the mother regarding her four children.

The legal guardianship and the permanent care, custody and control of the four children were granted to the Alabama Department of Pensions and Security (DPS) with power granted to proceed with permanent plans and placement for the children.

The mother, through able counsel, appeals from that action, and we affirm.

Viewing the record with the attendant presumptions accorded the circuit court’s action, the following is revealed.

The mother has a chronic history of criminality. She has been incarcerated in a federal facility and in the state prison.

Testimony given at the trial indicates she has been diagnosed as having an anti-social personality. Such a diagnosis is reserved for individuals who are basically unsocial-ized and whose behavior patterns bring them repeatedly into conflict with society. They are defined as being incapable of significant loyalty to persons, groups or social values. Such a diagnosis is unlikely to change because an anti-social personality is more fixed than many other personality types.

The oldest of the four children, a sixteen year-old boy, has significant emotional problems, including depression, and withdrawal. He has been both enuretic and encopretic in the recent past. The next oldest boy, thirteen, shows evidence of cultural deprivation which has apparently affected his I.Q. He is very dependent on his older brother, and is also depressed. There is evidence of an early negative environment in which his needs were not met.

The youngest of the three boys, nine, is insecure, withdrawn and depressed, and has bizarre impressions of females.

The youngest child, a six year-old daughter, has not been in the care of the mother since March of 1980. No emotional evaluation of her has been done primarily because she has pot shown any particular significant behavior problems in her foster home.

Testimony indicates the mother’s anti-social personality makes her incapable of meeting the particular needs of the children. A counselor said it would be too risky as far as the welfare of the children was concerned to return them to the mother, and that it was not in the best interest of the children to gamble on the mother despite some evidence of an apparent reformation of her past.

DPS had its first contact with the mother in 1967. DPS social workers testified as to reports that the children were often found alone, the home was found filthy, and that the two oldest boys had excessive absences from school. There were also reports of police being called to the home.

The mother’s second husband, the father of the daughter, was abusive toward the children, according to reports. Although divorced from the mother now, the second husband apparently still has some contact with the mother.

The first husband relinquished all parental rights to the three boys.

The four children have been in the care of DPS for a little over two years. A social worker who specializes in permanent placement of children testified she had no reservations about the ability of DPS to place the children in a proper and permanent home.

The testimony by counsellors and DPS workers indicated the emotional and developmental problems of the three boys was due to their earlier “noxious environment,” described as a very negative environment. In short, the witnesses testified the three boys had significant emotional problems which were due to their childhood environment and that it would not be in their best interest to return them to the mother.

The order terminating the mother’s parental rights stated, “there is clear and convincing evidence of the failure of [the mother] to provide a stable environment conducive to meeting the physical and emotional needs of [the children], and in view of the children’s emotional damage sustained from such instability, all documented by evidence presented in open court,” the mother’s parental rights are terminated. From this order the mother appeals, and, as indicated, we affirm.

The dispositive issue on appeal is whether there is sufficient evidence to support that order. Put another way, is the evidence “clear and convincing” that the best interest of the children would be served by terminating the mother’s rights.

The governing legal principles, set forth in Ely v. Casteel, 341 So.2d 730, 734 (Ala.Civ.App.1977), and often repeated in our eases, are that: “[T]he natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interest and welfare of the child are controlling.... ”

To-terminate one’s parental rights there must be clear and convincing evidence that terminating such rights would be in the best interest of the children. Miller v. Alabama Dept. of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.), writ quashed, 374 So.2d 1378 (Ala.1979). See also Massey v. Massey, 410 So.2d 422 (Ala.Civ.App.1981), cert. denied, 410 So.2d 426 (Ala.1982). The trial court’s judgment in termination of parental rights cases is reviewed under the ore tenus rule. On appeal that judgment will be given every favorable presumption and will not be disturbed unless palpably wrong. Phillips v. Alabama Dept. of Pensions and Security, 394 So.2d 51 (Ala.Civ. App.1981); Smith v. State Dept. of Pensions and, Security, 340 So.2d 34 (Ala.Civ. App.1976).

After carefully considering the record in this case, this court finds the evidence to be “clear and convincing” that the best interest of the four children was met by the circuit court’s action. We particularly note the mother’s history, the special needs of these children for stability and the mother’s irresponsibility in her past dealings with DPS concerning her children’s care.

The past neglect and emotional abuse of the children are important considerations in cases of this nature. See Miller v. Alabama Dept, of Pensions and Security, supra.

Furthermore, in seeking permanent termination of a parent’s right, the existence of a viable alternative to better serve the future welfare of the children should be established. Glover v. Dept. of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981). A DPS employee with eight years of experience testified these children could be placed in permanent homes. But such permanent placement cannot take place until the parent’s rights are terminated.

We therefore find the evidence “clear and convincing” that termination of the mother’s parental rights is in the best interest of the children. We affirm.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Mary RICHEY v. James H. CREEL, Patricia F. Creel, Robert Buchannon, Carrie Kirksey Buchannon, and Raymond A.L. Buchannon.
    Civ. 3542.
    Court of Civil Appeals of Alabama.
    May 18, 1983.
    Rehearing Denied June 24, 1983.
    Certiorari Denied Aug. 26, 1983 Alabama Supreme Court 82-930.

      Roosevelt Simmons, Mobile, for appellant.
    Michael D. Langan, Mobile, for appellee.
   BRADLEY, Judge.

This is an action to cancel a vendor’s lien deed.

The instant appeal stems from a vendor’s lien deed, dated June 23,1976 and signed by Mary Richey as grantor in favor of James H. Creel and his wife as grantees. The case was instituted with a complaint filed by Creel in which he claimed that Mrs. Richey had failed to cancel the vendor’s lien after payment of the purchase price and proper notice. Creel sought the imposition of a penalty under § 35-10-30, Code 1975. After Mrs. Richey failed to appear on the date set for trial, a $350 default judgment was entered against her. Subsequently, Mrs. Richey appeared in court without counsel and claimed that she did not understand the nature of the instrument that she had signed. The default judgment was set aside, and a second hearing was ordered. Thereafter, Mrs. Richey retained counsel and filed a general denial and counterclaim in which she sought, pursuant to section 35-4-153, Code 1975, to have the deed set aside or reformed on grounds that it was procured through fraud. She demanded and was denied a jury trial on the issue of fraud. After an ore tenus hearing, the trial court ordered that the lien be cancelled and awarded $700 to Creel. Mrs. Richey appealed to this court.

The first issue raised by Mrs. Richey in her brief concerns the trial court’s denial of her jury trial demand. She asserts that her demand was timely made under rule 38(b), Alabama Rules of Civil Procedure, and takes the position that the merger of law and equity under rule 2, A.R.Civ.P., gives her the right to a trial by jury on the issue of fraud. In response to these arguments, Creel contends that Mrs. Richey’s demand for a jury trial was properly denied since her claim for'relief involved equitable, rather than legal, issues.

We must reject Mrs. Richey’s claim that the merger of law and equity under rule 2, A.R.Civ.P., enlarged the right to jury trial. The supreme court in Ex parte Collins, 394 So.2d 952 (Ala.1981), stated: “Rule 38(a), ARCP, preserves the right to a trial by jury in cases which would have been tried to a jury, if demanded, under prior procedure. This is the one procedural difference which remains under the Rule.” Thus, in determining whether the right to a jury trial exists in any action, we are faced with a two-pronged analysis. First, we must determine the nature of the action involved; and, second, we must ascertain whether the matter was historically triable to a jury as a legal action or whether it was an action triable to the court as an equitable issue. The touchstone for such decisions again comes from Ex parte Collins, supra, where the court said:

“The Constitution and the Rules of Civil Procedure preserve to all litigants the right of trial by jury as it existed under prior procedure, and the Rules cannot be construed to restrict such right. However, they should not be construed to permit a jury trial on issues which were never triable, by jury before the adoption of the Rules, unless such issues are merged with issues which were.”

The first part of our analysis begins with Mrs. Richey’s pleadings to determine the true nature of the relief sought. See Moseley v. Monteabaro, 245 Ala. 475, 17 So.2d 657 (1944). In her counterclaim Mrs. Richey alleged that she could not read or write and that the deed recorded in the Mobile County Probate Office was obtained by fraud because she never intended to give grantees a deed. She then suggested that because of the fraud involved the court revise the deed to express the true intentions of the parties as authorized by section 35-4-153, Code 1975.

The trial court, we believe, properly concluded, based on the allegations in the counterclaim, that Mrs. Richey was seeking a reformation of the deed she gave to appel-lees as authorized by section 35-4-153, Code 1975. Reformation of instruments has long been an equitable issue and this code section just enacts into statutory law that which has been the practice in Alabama for a long time. Fidelity Service Insurance Co. v. A.B. Legg & Sons Burial Insurance Co., 274 Ala. 94, 145 So.2d 811 (1962). The trial court, therefore, did not err in refusing to give Mrs. Richey a jury trial on her counterclaim.

Mrs. Richey next argues that the notarization of the vendor’s lien deed was improper. She claims that the notary public was under a duty to explain to her that she was signing a deed and that his failure to do so was negligent. Creel controverts these arguments by pointing out that the burden of proof is on the party attacking the notarization to show some irregularity in the process. He asserts that Mrs. Richey has failed to meet her burden of proof and that the record contains ample evidence to indicate that she had been informed of the nature of the instrument she had signed.

The notary’s acknowledgment in the instant action shows that Mrs. Richey was informed of the contents of the vendor’s lien deed. Mrs. Richey argues that she was never informed that she was signing a deed and that she thought that she was signing a note. We agree with Creel that the burden of overcoming the presumption of correctness in connection with a notarization falls on the party challenging it. Carroll v. Carroll, 236 Ala. 556, 183 So. 857 (1938). We further agree with Creel that Mrs. Richey has not met her burden of proof. In his testimony the acknowledging notary stated that he informed Mrs. Richey that she was signing a deed. He further testified that she stated that she wanted to sell some of her property to pay a debt. Moreover, the instrument was given to Mrs. Richey’s daughter, who looked it over before Mrs. Richey signed it. The only evidence tending to indicate that Mrs. Richey was not informed of the contents of the instrument came from her own uncorroborated statements. The evidence taken as a whole indicates that Mrs. Richey failed to meet her burden of attacking the notarization. See Carroll v. Carroll, supra.

Mrs. Richey finally argues that the transaction between Creel and herself was infected with fraud and undue influence and that it should be set aside on these grounds. This argument, she states, is strengthened by her inability to read and write and Creel’s superior knowledge of business. Mrs. Richey urges us to find that the burden of proof that the transaction was fair rested on Creel and that he has failed to meet this burden.

The basic rule concerning the setting aside of a transaction on grounds of fraud and undue influence was stated in Verner v. Mosely, 221 Ala. 36, 127 So. 527 (1929), where the court said:

“The rules of administrative procedure in cases involving transactions inter vi-vos, where one party stands in relation of trust and confidence to the other, such as is here involved, attorney and client, trustee and cestui que trust, where the dominant party — and in this relation the attorney or trustee is regarded as the dominant party — receives or derives a benefit or advantage from a transaction during the existence of such relation, the party reposing the confidence, on seasonable application to a court of equity, may obtain relief from the burden of such transaction, by showing the transaction and. the confidential relations .... ”

Thus, under this decision two factors must be present before the burden of proving the fairness of a transaction shifts to the beneficiary. First, the complainant must show the existence of the transaction; and, second, he must show that a confidential relationship existed. See Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960).

We must reject Mrs. Richey’s argument that the transaction should be set aside on grounds of fraud and undue influence because she has failed to show the existence of a confidential relationship. There is evidence in the record indicating that the property sale was prompted by a comment from Mrs. Richey to Creel that she needed money to pay some debts. Creel told her that he could not lend her the money but that he was interested in buying property from her and they arrived at a mutually satisfactory price for the sale of the property to Creel. Such comments as these indicate that Mrs. Richey and Creel were bargaining with one another at arm’s length and do not show a confidential relationship in terms of Verner v. Mosely, supra and Jones v. Boothe, supra.

For the foregoing reasons the trial court’s judgment is affirmed.

AFFIRMED.

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


text:
    Faye S. BAGGIANO, in her official capacity as Acting Commissioner of Medicaid, Alabama Medicaid Agency v. Emma Latola MILLER, By and Through her next friend, Mary Ethel McKINNEY; and Mary Ethel McKinney, individually.
    Civ. 3758.
    Court of Civil Appeals of Alabama.
    May 18, 1983.
    Rehearing Denied June 15, 1983.
    Certiorari Denied Sept. 23, 1983 Alabama Supreme Court 82-911.

      Charles A. Graddick, Atty. Gen., and Herman H. Hamilton, Jr., Spec. Asst. Atty. Gen., Shapard D. Ashley, Montgomery, for appellant.
    Myron B. Waits, Talladega, for appellee.
   HOLMES, Judge.

This is a case involving a determination of eligibility for Medicaid benefits.

The Circuit Court of Montgomery County, on a writ of certiorari, found that the appellee was eligible for Medicaid benefits. From that ruling the commissioner of the Alabama Medicaid agency, through able and distinguished counsel, appeals. We find no error requiring reversal and affirm.

The following is relevant:

In October, 1981, an application for Medicaid benefits was filed on behalf of the appellee, Mrs. Miller. Medicaid denied this application in November on the grounds that Mrs. Miller had access to property exceeding the Medicaid limit of $1,500. The property Mrs. Miller had access to consisted of some interest in real property and a joint checking and savings account with her daughter, Mrs. McKinney.

After a court approved sale of the real estate, Mrs. Miller filed for benefits on March 8, 1982. Medicaid denied the application.

In April, 1982, counsel for Mrs. Miller requested an administrative hearing to review the Medicaid agency’s ruling on Mrs. Miller’s eligibility for benefits. The hearing officer found that Mrs. Miller had access to property in the form of a joint checking and savings account exceeding the $1,500 limit. This ruling, however, was based on Ala.Code § 35-1-2 (1975) which makes all inter vivos gifts void if the donor is left without adequate means of support. This was necessary because Mrs. McKinney had withdrawn the money in the joint accounts the September before the March 8, 1982 application and there was not any money in the account in excess of the $1,500 limit.

In June, 1982, the hearing officer submitted his findings to the commissioner, the final administrative authority for reviewing administrative rulings. The commissioner concurred in the hearing officer’s findings and notified Mrs. Miller.

In July, 1982, Mrs. Miller through her next friend, Mrs. McKinney, filed a petition for writ of certiorari in the Circuit Court of Montgomery County. The trial court entered its order in November, 1982, finding that Mrs. Miller had been eligible since March 8, 1982 and ordering appellant-defendant to “take all steps necessary to ensure receipt by [Mrs.] Miller of all Medicaid benefits due her.” Thereafter, the commissioner took this appeal. We find no error and affirm.

Appellant first contends that the trial court erred in holding that Mrs. Miller was eligible for Medicaid benefits in light of § 35-1-2 and the standard of review applicable to petitions for writ of certiorari.

The standard for judicial review in cases such as the one at bar is limited to a consideration of the proper application of the law involved and whether the ruling below was supported by any legal evidence. Minton v. Personnel Bd. of Jefferson Co., 406 So.2d 435 (Ala.Civ.App.1981). Another proper consideration is whether the findings and conclusions are contrary to the uncon-tradicted evidence, or whether there was an improper application of the findings viewed in a legal sense. Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So.2d 148 (1944).

Appellant maintains that in view of the above standard and Ala.Code § 35-1-2 (1975), the commissioner’s ruling denying Mrs. Miller benefits was correct and the trial court should have affirmed. We do not agree.

Alabama Code § 35-1-2 (1975), is the foundation of appellant’s case. However, Medicaid applied this statute incorrectly to the uncontradicted evidence. In that respect, the trial court was correct in determining that Mrs. Miller was eligible for Medicaid benefits.

The facts are not in dispute. Therefore, it is a matter of applying the law properly to the facts.

Mrs. Miller was, at the time of the hearing, eighty-six years old. For approximately twenty-seven years Mrs. Miller lived with and was cared for by her daughter, Mrs. McKinney. Mrs. Miller had been mentally and physically incapacitated for at least ten years prior to the hearing.

Some eighteen years previously, Mrs. Miller and Mrs. McKinney established a joint checking and savings account into which Mrs. Miller’s social security checks were deposited. In the beginning, the checks totaled $78 a month and increased over the years until the amount was approximately $220 at the time of the hearing. Mrs. McKinney paid for all of Mrs. Miller’s expenses, not always from the joint checking account, but the record indicates that in any event Mrs. Miller’s expenses were at least partly paid from her social security checks.

In September, 1981, there was approximately $13,000 in the joint checking account. Mrs. McKinney testified that she considered this money to be hers in that she had total control over the funds and was the only one to use the checking account. She additionally testified that her mother’s expenses and cost of living exceeded her social security checks each month. Consequently, in September, 1981, Mrs. McKinney withdrew most of the money in the joint checking account and all of the money from the savings account.

Then, in March, 1982, Mrs. Miller again applied for Medicaid benefits after having been turned down in November. On this occasion she was denied benefits because of the administrative ruling that she had access to the money in the joint checking account.

Because the money was not actually in the account in March, 1982, Medicaid relied on § 35-1-2 in determining that Mrs. Miller had access to that money.

Section 35-1 — 2 reads as follows:

“(a) All inter vivos gifts of assets, including but not limited to money, lands or buildings, are void if the donor is left without means' of support and does not reserve for himself for life an adequate amount separate from that gift to provide for his subsistence; provided, that this section shall not apply to any gift not expressly and specifically declared void hereunder by an administrative or judicial tribunal of competent jurisdiction within the two-year period immediately following the date of the gift.
“(b) As used in this section, unless the context clearly requires a different meaning, ‘subsistence’ means that amount of money or its equivalent necessary to provide one with the minimum necessities of life, such as food, clothing, shelter and medical care.”

Medicaid maintains that in view of the above statute, the transfer of the funds from the joint checking account was void for purposes of Medicaid benefits eligibility. It is Medicaid’s position that the transfer was made only to bring Mrs. Miller within the Medicaid limits.

Medicaid’s position is based on an incorrect application of § 35-1-2 to the facts of this case. The statute requires that a “donor” make an “inter vivos gift” that leaves the donor without adequate means of support.

The evidence indicates that Mrs. Miller did not make a “gift” of the money to Mrs. McKinney. In other words, Mrs. Miller did not transfer the money to Mrs. McKinney. The money was in a joint checking account. Mrs. McKinney withdrew the funds as she had a legal right to do.

And although it is not determinative, it is interesting to note that while Mrs. McKinney paid all of Mrs. Miller’s expenses, she managed to accumulate quite a large sum in the account in relation to the fairly small amount of Mrs. Miller’s checks.

Appellant’s final contention is that the trial court erred in ordering that the necessary steps be taken to ensure that Mrs. Miller receive all benefits due her.

Appellant bases this argument on the idea that the trial court’s order provided for retroactive relief against the state and that the court was without jurisdiction to do so. Appellant also cites authority for the position that the courts cannot direct the manner in which an administrative body exercises its discretion or compel the performance of a duty in a certain manner where the performance of that duty rests upon an ascertainment of facts to be determined by an officer in his judgment or discretion.

This argument is not well taken.

It is established that suits seeking to compel administrative officers to perform ministerial acts do not violate the section of the constitution that prohibits suits against the state. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479 (1942). Once the determination has been made that Mrs. Miller is eligible for benefits, the discretion of the administrative body of Medicaid has ended. If Mrs. Miller is eligible, the Medicaid agency has no other choice than to pay such benefits as may be due her from the time of eligibility.

In view of the foregoing, this case is due to be and is affirmed.

AFFIRMED.

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


text:
    REGENCY DEVELOPMENT COMPANY, INC. v. JEFFERSON COUNTY BOARD OF EQUALIZATION AND ADJUSTMENT.
    Civ. 3762.
    Court of Civil Appeals of Alabama.
    May 18, 1983.
    Rehearing Denied June 15, 1983.
    Certiorari Denied Aug. 26, 1983 Alabama Supreme Court 82-920.
    Charles A.J. Beavers, Jr., Birmingham, for appellant.
    Tommy Nail, Birmingham, for appellee.
   HOLMES, Judge.

This is a tax case.

Plaintiff, Regency Development Company, Inc. (Regency), appeals an assessment by the Jefferson County Board of Equalization and Adjustment (Board) in which the Board assessed a lot with partially complete ed improvements.

Regency challenges the inclusion in the assessment of the unfinished improvements, a high rise multi-family residential building.

Viewing the record with the attendant presumptions, the following facts are revealed: During 1980, Regency was constructing a seven-story building containing condominiums along with a swimming pool and other facilities. As of October 1, 1980, the construction was approximately 75% complete, but no units were ready for occupancy.

The Board, after a visit by one of their members to the site and an appraisal, included the value of the unfinished building in this appraisal and resulting tax bill. The Board’s policy is to assess and tax improvements which are more than 70% completed by October 1 of any given tax year.

Regency appealed the decision by the Board to the Jefferson County Circuit Court, Equity Division. After a hearing, the trial court held the Board had authority under the Alabama statutes to tax the improvements involved, and the trial court denied Regency’s prayer for relief. From this order Regency appeals, and we affirm.

Alabama Code § 40-7-1 (1975) provides in pertinent part that:

“The tax assessor in each of the several counties shall have the right and authority, beginning October 1, 1951, and annually thereafter, to assess all real estate, together with improvements thereon ... to the party last assessing the same, or to the owner of record, except such real estate and personal property which is now or may hereafter be assessed by the department of revenue.... Should the owner of any real estate make improvements on such property, or should any improvements be removed or destroyed or partially removed or destroyed during any taxable year, it shall be the duty of such owner to make a tax return between October 1 and prior to January 1 covering all such changes made subsequent to October 1 of the preceding tax year. Improvements partially completed on October 1 shall be reported to the tax assessor by the owner thereof and shall be assessed as incomplete for that tax year .... ” (Emphasis added.)

The dispositive issue in this case involved the interpretation of the phrase, “and shall be assessed as incomplete for that tax year.”

Regency, through able counsel, contends the inclusion of that phrase in § 40-7 — 1 means the taxing authorities may not tax partially complete improvements to land. The Board contends the phrase means partially completed improvements may be assessed and taxed at the fair market value of the incomplete improvements.

In construing a statute, every word and each section must be given effect, if possible, and construed with other sections in pari materia. Carroll v. Alabama Public Service Commission, 281 Ala. 559, 206 So.2d 364 (1968). We must therefore interpret the phrase in question in light of the other related sections. .

Section 40-1-1 of the Alabama Code (1975), defines real property as including “not only land, city, town and village lots, but also all things thereunto pertaining, and all structures, and all other things so annexed or attached thereto as to pass to a vendee by the conveyance of the land or lot.” § 40-1-1(2).

Improvements are defined as: “All buildings, structures, walls, fences, and any other things erected upon or affixed to the land.” § 40-1-1(5).

Clearly, these definitions are broad enough to encompass the partially completed building in the instant case. See Esto Real Estate Corp. v. Louisiana Tax Commission, 170 La. 649, 129 So. 117 (1930), in which the Louisiana Supreme Court held that a partly constructed building had value, and was taxable because it fit within the Louisiana statutory definition of real estate, a definition very similar to Alabama’s definition of real property.

Section 40-ill-l, Ala.Code (1975), specifically states that “[e]very piece, parcel, tract or lot of land in this state, including therein all things pertaining to such land, and all structures and other things so annexed or attached thereto as to pass to a vendee by conveyance of such land” shall be subjected to ad valorem taxes unless “exempted by law.” Partly constructed improvements are not listed among the subjects of taxation which are exempted by law under § 40-9-1, Ala.Code (1975).

In the instant case, the partly constructed building at issue is to this court taxable under § 40-11-1 since it is “attached thereto as to pass to a vendee by conveyance of such land.” See Esto Real Estate Corp. v. Louisiana Tax Commission, supra. The unfinished building is not removed from inclusion under that section by any exemptions listed in § 40-9-1. Reading the questioned phrase, “and shall be assessed as incomplete for that year”, in pari materia with the above quoted sections would indicate the legislature meant unfinished improvements may be assessed and taxed at the fair market value of their unfinished state.

Such a reading of the phrase in question is further supported by the definition of “assess” from our case law. “Assessment is quasi-judicial, and consists in making out a list of the taxpayer’s taxable property, and fixing its valuation or appraisement.” Beltona Coal & Mining Co. v. Hawkins, 210 Ala. 359, 360, 98 So. 26 (1923). Assessment for the purpose of taxation consists “of a listing and an appraisal of the value of the items of property listed.” State v. Bradley, 207 Ala. 677, 679, 93 So. 595, 597 (1922).

Section 40-7-1 grants the tax assessor the authority to “assess all real estate, together with improvements.” It grants the tax assessor the authority to assess “as incomplete” unfinished improvements. It is logical to assume the legislature meant the same meaning to apply to the use of assess in both uses. Applying the meaning of assess as quoted above means § 40-7-1 grants the tax assessor the right to list and fix the value or appraise the value of all real estate, improvements, and partially completed improvements. The only thing which is different in the mode of assessing real property, improvements and partially complete improvements is that partially complete improvements are assessed “as incomplete,” that is, at a fair market value on the improvement in its unfinished state.

Section 40-11-1 clearly provides that partially complete buildings may be taxed. Just as nothing in § 40-9-1 exempts partially constructed buildings, nothing in the language of § 40-7-1 operates to exempt such unfinished improvement. Section 40-7-1 grants the authority to assess partially unfinished buildings and § 40-11-1 grants the authority for such improvements to be taxed.

Furthermore, we note what Regency seeks is, in effect, an exemption from taxation on its partially completed condominium building based on the phrase, “and shall be assessed as incomplete .... ” It is well settled by numerous cases that taxation is the rule and exemption the exception. State v. Bankhead Mining Co., 279 Ala. 566, 188 So.2d 527 (1966). When it is claimed that property is exempt from taxation, the intent of the legislature to relieve such property of its public burden must be expressed in clear and unambiguous terms, and such release should not be deduced from language of doubtful import, nor where there is room for reasonable controversy as to legislative intent. State v. Bankhead Mining Co., supra; 18 Ala.Digest, <¾=>203, 204(a).

With that principle in mind we cannot find the phrase in question creates an exemption. Nor do we find anything in § 40-7-1 or other relevant sections which prohibits the Board from the actions taken pursuant to this case.

This case is due to be affirmed.

AFFIRMED.

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


text:
    The ETOWAH COUNTY PERSONNEL BOARD, et al. v. Roy McDOWELL, as Sheriff of Etowah County, Alabama.
    Civ. 3774.
    Court of Civil Appeals of Alabama.
    May 18, 1983.
    Rehearing Denied June 15, 1983.
    Certiorari Denied Aug. 26, 1983 Alabama Supreme Court 82-921.
    George C. Hawkins of Hawkins & Pitts, Gadsden, for appellants.
    William D. Hudson of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellee.
   HOLMES, Judge.

The circuit court reversed a decision of the Etowah County Personnel Board. The Personnel Board appeals, and we affirm.

The issue as framed by the Personnel Board, through its able and experienced counsel, is a narrow one, to wit, did the circuit court err in assuming jurisdiction to review the Board’s decision.

The record before this court reveals the following:

Officers in the sheriff’s office attempted to discharge a deputy sheriff for alleged insubordination. The Personnel Board, upon appeal by the deputy, said the dismissal was improper because the governing act provided that only the sheriff could discharge the deputy. Thereafter, the sheriff attempted by letter to discharge the deputy. The Board, upon appeal by the deputy, said the action of the sheriff was improper in view of the Board’s previous determination on the same matter. The Board held that Act 203 precluded the Board from “reopening the matter once determined to be improper since it was without dispute that the subsequent discharge by letter dealt with matters previously heard and determined by the Board.” The Board ordered the deputy reinstated.

The sheriff filed a petition for writ of certiorari or mandamus to the' circuit court, which in turn, struck the writ for manda-hius and granted certiorari. The circuit court reversed the Board’s decision. The final order stated the Board erred as a matter of law in that “nothing in Act 203 [1971 Alabama Acts] estops the elected official from subsequently curing any procedural defects.... ”

The act governing dismissal of Etowah County employees, Act No. 203, 1971 Alabama Acts, does not specifically provide for review of the Board’s decision, nor does it contain any language which precludes review of the Board’s actions by the circuit court. The Board construes this silence as to judicial review as meaning the circuit court had no jurisdiction to review the decision. Specifically, the Board contends neither a writ of certiorari nor mandamus will lie. Since the circuit court struck the writ of mandamus we will not address the Board’s argument on mandamus.

We find no merit in the Board’s argument that Act 203 precludes judicial review.

The United States Supreme Court, in a case which originated in the U.S. District Court of Alabama, wrote that “preclusion of judicial review of administrative action adjudicating private rights is not lightly to be inferred.” Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970). Judicial review of administrative action is the rule, and nonre-viewability an exception which must be demonstrated. Only upon a showing of “clear and convincing evidence” of a legislative intent of nonreviewability or a clear statutory command to that effect will preclude judicial review of administrative action. Barlow v. Collins, supra. A virtual presumption exists in favor of judicial review of administrative action unless a contrary purpose is fairly discernible in the statutory scheme. Hayes International Corp. v. McLucas, 509 F.2d 247 (5th Cir. 1975), cert. denied, 423 U.S. 864, 96 S.Ct. 123, 46 L.Ed.2d 92 (1975); 2A Ala. Digest, Administrative Law, Key No. 651.

There is clearly no statutory command in Act 203 which precludes judicial review. Equally clear to this court, there is no “clear and convincing evidence” of a legislative intent to preclude judicial review which is discernible from Act 203.

Furthermore, the absence of statutory language expressly authorizing judicial review is insufficient to offset the presumption that administrative action is reviewable by the courts. Hayes International Corp. v. McLucas, supra. The writ of certiorari is a proper method to seek judicial review of an administrative action. See Stewart v. Hilyer, 376 So.2d 727 (Ala.Civ.App.1979).

The Board next contends there was an insufficient record before the circuit court for a proper review. We disagree. The record before the circuit court consisted of two written decisions of the Board which recited both the Board’s findings of fact and its legal conclusions. The circuit court had before it the necessary information to make its decision concerning the question of law at issue in light of the narrow scope of review by certiorari.

We do not wish to be read as necessarily agreeing or disagreeing with the learned trial judge’s decision as to the “merits,” as that issue is apparently not before this court. However, we note that this court has not been cited any Alabama authority which would convince us the trial judge’s action was incorrect. Interested parties might wish to refer to the general discussion at 73 C.J.S., Public Administrative Bodies and Procedure § 156 (1951).

This case is due to be affirmed.

AFFIRMED.

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


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    Donald E. KING v. Deborah KING.
    Civ. 3644.
    Court of Civil Appeals of Alabama.
    June 24, 1983.
    Rehearing Denied Aug. 3, 1983.
    Michael W. Landers, Sylacauga, for appellant.
    James M. Sizemore, Jr., Sylacauga, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a child support case.

Donald and Deborah’s first marriage to each other occurred on October 8, 1971, after a courtship of approximately two months. They were divorced on February 14, 1972, and the judgment approved their agreement which stated that Deborah’s then pregnancy happened “shortly prior” to their marriage and that due to the conception date of the unborn child, Deborah made no present child support claim against Donald and that she would make no future child support demands. The child, Christy, was born on May 18, 1972. Donald and Deborah remarried in July 1972 and were divorced for the last time in November 1972, with that divorce judgment approving a similar agreement. In 1981, Deborah filed the present proceedings seeking support from Donald for Christy. After the evidence was heard ore tenus by the trial court, a final judgment was entered which ordered Donald to pay to Deborah $20 per week for the support of Christy. Donald filed a motion for a new trial, but appealed to this court before that motion was ruled upon by the trial court or by operation of law.

While the pleadings did not raise the issue, one of the problems which was tried by implied consent of the parties was whether Christy was legitimized by the provisions of § 26-11-1, Code of Alabama 1975, which provides, “The marriage of the mother and reputed father of a bastard child renders it legitimate if the child is recognized by the father as his child.”

We assume that the trial court ascertained that Christy had been so legitimated for such would be a condition precedent to the rendition of the support judgment because of the manner in which this controversy was tried and presented by the parties. Average v. Gibson, 372 So.2d 829 (Ala.1979); Lipscomb v. Tucker, 294 Ala. 246, 254, 314 So.2d 840, 846 (1975).

As to the question of Christy’s legitimation, we look to the evidence with the attendant presumptions which are accorded to the trial court’s action and find the following facts which support the final judgment. We do not include any contra facts in this resume.

Deborah swore that she conceived Christy nine months before her birth, that Donald was Christy’s father, that she was pregnant with Christy when they married and that Donald was then aware of such pregnancy and of the fact that Christy was his child. After their first divorce, Donald paid the hospital bill and all medical expenses which concerned Christy’s birth. He visited the mother and child each day while they were in the hospital. Donald was named the father in Christy’s birth certificate and, therein, Christy was given Donald’s last name. Both Donald and Christy have buck teeth. As previously noted, the parties remarried each other in July 1972, which was after Christy’s birth, and the three evidently lived together as a family until Donald and Deborah were divorced about four months later. Thereafter, Donald has occasionally given a Christmas present to Christy. Three years ago, Donald visited Christy twice at the home of Deborah’s mother. Deborah has taken Christy to the home of Donald’s mother on several occasions, and Donald has seen Christy there. Approximately two and one-half years ago and extending over a period of several months, he came to Deborah’s house on several occasions for visits when he saw the child. Christy calls Donald “daddy.” Before Deborah married her present husband, Donald often called Christy by telephone and talked to the child.

Donald admitted that he had the opportunity to father Christy and that he had assumed that his name appeared on Christy’s birth certificate as her father. He has been told that he and Christy favor each other. Donald claimed Christy as a dependent upon his income tax return for the year 1972. Thus, he presumably supported Christy during the brief second marriage of the parties to each other.

In Coleman v. Sparkman, 370 So.2d 977 (Ala.1979), the following was stated in construing said Code section 26-11-1:

“Recognition is essential and must be unambiguous and clear in its character. Howard v. Pike, 290 Ala. 213, 275 So.2d 645 (1973); Martin v. Martin, 233 Ala. 310, 171 So. 734 (1937). Recognition is shown by the manner of treatment, how the child is regarded and held in thought, and does not depend upon a showing of actual parentage. Moore v. Terry, 220 Ala. 47, 124 So. 80 (1929). Moreover, publication of the parentage of the child before the marriage is unnecessary. McBride v. Sullivan, 155 Ala. 166, 45 So. 902 (1908).... The essence of recognition is the treatment of the child as one’s own, including an acknowledgement of parenthood, which we deem to mean acquiescence in the relationship of parent and child.”

The evidence sufficiently supports the implied finding of fact by the trial court that Christy was legitimated. Accordingly, the trial court was authorized to order Donald to support Christy. The obligation of Donald as Christy’s father to support her could not be permanently removed by the 1972 parental agreements, for changed circumstances required the reinvocation of his duty to support his daughter in 1982. Tucker v. Tucker, 403 So.2d 262 (Ala.Civ. App.1981). No controversy has been raised on appeal as to the amount of periodic child support which Donald was ordered to pay.

Donald argues that the trial court erred in failing to grant his motion for a new trial. However, the trial court never expressly ruled upon the motion, and his motion was not overruled by operation of Rule 59.1, Alabama Rules of Civil Procedure, because he perfected his appeal before the required ninety days had expired. There was no ruling by the trial court as to the new trial motion. Appellate courts will not review legal questions which were not ruled upon' by the trial court. Bevill v. Owen, 364 So.2d 1201 (Ala.1979); Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980).

We affirm.

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

AFFIRMED.

All the Judges concur.


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    Early Lee EVANS v. Cynthia Gray EVANS.
    Civ. 3657.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.

      Joyce E. May of Winston, Winston & May, Birmingham, for appellant.
    William K. Higgins, Jr., Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

After an ore tenus hearing the trial court divorced the parties and awarded the wife periodic alimony in the amount of $300 per month.

The husband through able counsel appeals. The dispositive issue on appeal is whether the trial court so abused its discretion in the award of periodic alimony as to require reversal. The husband also contends the trial court erred regarding certain evidentiary matters. We find no error requiring reversal and affirm.

Viewing the record with the attendant presumptions the following is pertinently revealed:

The parties were married in 1979. Their marriage has been somewhat stormy.

The wife had, prior to the divorce, worked as a waitress and as a retail sales person. The wife is twenty-seven years old.

The husband is fifty-five years old and from various sources at this time has an income of over $1,000 per month.

On May 23, 1981, the husband shot the wife. There is evidence that as a result of the gunshot wound in the back the wife cannot now perform meaningful employment.

The cases are legion which hold that the award of periodic alimony is a subject which falls within the sound judicial discretion of the trial court and the trial court’s decision thereon will not be disturbed on appeal except where such discretion was plainly and palpably abused. See generally Marr v. Marr, 383 So.2d 194 (Ala.Civ.App. 1980); Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974).

In view of the facts as indicated above, particularly the husband’s shooting of the wife, resulting in her inability to work, we find the award of $300 per month periodic alimony not to be such an abuse of discretion as to require reversal. We say this even though the marriage is of short duration and the husband’s income is limited.

Additionally, the husband contends the trial court erred to reversal in overruling the husband’s objection to evidence of the husband’s “character and reputation.”

Conceding without so finding that the trial court erred in allowing such testimony, such does not require reversal.

As indicated above, there is ample competent evidence to support the trial court’s action in the award of alimony and in the granting of the divorce. Hence, any error is error without injury. See Rule 45, A.R. A.P.

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

In view of the above, the case is due to be affirmed.

AFFIRMED.

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


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    Michael Wayne GOODWIN and Thelma A. Cox Childress Goodwin v. STATE DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 3668.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.

      F. Rebecca Wolf of Legal Services Corp. of Ala., Bay Minette, for appellant.
    Mary Lee Stapp, Asst. Atty. Gen. and E.E. Ball for Owen & Ball, Bay Minette, for appellee.
   WRIGHT, Presiding Judge.

The District Court of Baldwin County, Alabama, after extensive oral hearing of testimony, entered judgment terminating the parental rights of the parents of three minor children. Thelma Goodwin is the mother of them all. William Childress is the father of the oldest child and Mike Goodwin is the father of the two younger children. The termination of parental rights of William Childress was not contested. This appeal is taken by Thelma and Mike Goodwin.

The record discloses a not unusual but nevertheless tragic saga of parents totally unprepared and unequipped, mentally, physically, emotionally or financially to rear their children. Our reference to the evidence before the trial court will be brief as we find the judgment of that court should be affirmed.

Thelma Amanda Cox became pregnant with the child of Larry Johnson in 1973 at the age of seventeen. She applied to the Alabama Department of Pensions and Security (DPS) for aid to dependent children (ADC) upon the birth of the child, and received it. In 1974 she married Johnson. In 1975 she divorced Johnson and began living with William Childress. In December 1975 the first of ten reports was made to DPS about the neglect by Thelma of her children and about her personal conduct. Thelma married Childress in 1976.

In April 1976 a DPS social worker made the first home visit to check the reports of Thelma’s excessive drinking, use of drugs and blowing marijuana smoke in the face of the Johnson child. The visit revealed “very poor conditions.” The child was wearing a towel for a diaper and was lying with Thelma upon a urine-soaked mattress asleep late in the morning.

In 1977 Thelma bore a child of William Childress. In 1978 Childress was working off the coast of Africa sending money home to Thelma. Thelma began a relationship with Mike Goodwin. Reports of her misconduct and neglect of her then two children came to DPS. In 1979 Thelma married Goodwin. In March of 1979, the youngest was hospitalized, suffering from impetigo, thrush, herpes in his throat, nose and mouth, and dehydration. Thelma told a social worker the child had measles with high fever. In August 1979, police found the two children wet and asleep in the back of a pickup truck parked outside a pool hall at 10:00 P.M. They were reported to be filthy and hungry, with one soiled with feces. The parents were escorted home because Goodwin had no drivers license. As a result of the police report, a pickup of the children was made by a social worker from DPS. They were picked up at 11:30 A.M., and the mother was asleep. The children were up, unsupervised and unclean. They were kept by DPS until November 16,1979, when ordered returned by the circuit court.

The first Goodwin child was born in December 1979. The second in January 1981. Neither child received proper medical care, which would have been provided by DPS. Thelma received no prenatal care until a month before birth. The child born in January 1981 was found in April to have heart and other genetic defects. His face is partially paralyzed and he has an inverted breast.

In April 1981, the Goodwins requested foster care for the children by DPS. The request was granted. After home visits in June and August of 1981, the children were returned dirty and hungry. Thelma visited the DPS office on the morning of September 4, 1981, drunk and abusive. The Good-wins subsequently disappeared from Baldwin County without notice to DPS. Except for a call by Thelma from Louisiana in October, she was not heard from until March 29, 1982. Goodwin returned to Alabama and contacted DPS in February 1982, telling them he had left Thelma because of her drinking and relations with other men. When Thelma checked in with DPS on March 29, she reported that she had been living in four or five cities in Texas.

Subsequent contacts were made with the Goodwins by DPS in 1982. Conditions had not changed. Neither was employed and Thelma was again pregnant. They were living with and off of relatives.

The Johnson child was placed in the custody of his father in June 1982. The petition for termination of parental rights was filed in November 1982. At the hearing on January 26, 1983, the third Goodwin child was then four months old. Like each of the other Goodwin children born to Thelma, he had congenital heart defects and would require extensive heart surgery to survive. That child is not involved here and remains with the Goodwins. They now live with the paternal grandmother in a rented house. She is in ill health. Neither parent is employed, and they have no prospects of regular employment. The father has heart problems of his own. Because of its illness, the baby receives social security benefits.

It was the judgment of the trial court that the children were dependent and needed the protection of the State; that their best interest would be served by terminating the parental rights of the Goodwins and Childress and granting to DPS their permanent care and control, with the right to place them for adoption.

It is the opinion of this court that the evidence is clear and convincing that the best interest of these children will be served by severing their relationship of parent and child with their respective parents and placing them permanently in the custody of the State and its agent, the Department of Pensions and Security. The history of the family during the last ten years and the reasonable prospects of the parents to provide and care for these children in the years ahead, when considered with the presumption of correctness of the judgment of the trial court, totally support affirmance. We consider our decision to be in line with and supported by the principles stated in our recent decisions in the cases of Gaddy v. Alabama Department of Pensions & Security, 428 So.2d 91 (Ala.Civ.App.1983); Fitzgerald v. Jeter, 428 So.2d 84 (Ala.Civ.App. 1983); In re Palmer, 387 So.2d 215 (Ala.Civ. App.1980).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Bert P. EPPERSON v. Dolores H. EPPERSON.
    Civ. 3670.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Rehearing Denied Sept. 7, 1983.

      J. Gusty Yearout and Joanne E. Boyd of Lorant, Harris & Yearout, Birmingham, for appellant.
    L. Drew Redden of Redden, Mills & Clark, Birmingham, for appellee.
   BRADLEY, Judge.

The appeal is from an order denying a request to vacate or to modify a divorce decree. There is also a petition for writ of certiorari to review the judgment of contempt entered against the former husband.

The parties here were divorced on June 4, 1980. That aspect of the decree relating to alimony, child support and custody, and all property rights was grounded on an agreement of the parties. The pertinent provisions of that agreement authorized the custody of the minor child to be placed with the mother and provided that child support shall be fifteen percent of the father’s gross income. The child support was to be paid until the child reached age nineteen, died, married, or became self-supporting. Should the child remain in school, college included, after age nineteen, support payments were to continue. If the child actually lives with the father, child support payments would cease.

That aspect of the divorce decree agreed to by the parties hereto relating to alimony provided that the former wife was to receive twenty-five percent of the former husband’s gross income until such time as she dies, remarries, or cohabits with a member of the opposite sex. It is also provided that in the event the minor child lives with his father the alimony increases from twenty-five percent to thirty-five percent of the former husband’s gross income.

Appellant Epperson first argues that the trial court’s decision to hold him in contempt was improper. The trial court based its contempt citation on the facts that Ep-person had not paid his former wife the required percentage of certain bonuses he had received from his employer in 1981 and 1982 and that he had failed to provide life insurance coverage for her as ordered in the divorce decree. His attack on the judgment of contempt centers on an argument that the phrase “gross income from Sirco Systems, Inc. or any division of Sirco or Jemi-son Investments or any successor employer of the defendant” is ill-defined and not susceptible of clear interpretation. For these reasons he argues that a contempt citation based on an ambiguous judgment is improper and cites the general rule that a judgment must be complete and certain. Jasper Land Co. v. Riddlesperger, 25 Ala. App. 45, 140 So. 624 (1932).

We readily agree with Epperson’s assertion that a judgment must be clear and unambiguous. However, in Horsley v. Horsley, 390 So.2d 1058 (Ala.Civ.App.), cert denied, 390 So.2d 1060 (Ala.1980), we stated the rule for construction of judgments when we said:

“Judgments and decrees are to be construed like other written instruments, and, if there is any uncertainty, the court must construe them so as to express the intent of the parties. Price v. Price, Ala. Civ.App., 360 So.2d 340 (1978); Reeder v. Reeder, Ala.Civ.App., 356 So.2d 202 (1978). Such intent can be derived from the provisions of the agreement. Reeder v. Reeder, supra.

Thus, where a judgment can be construed in such a manner as to express the intention of the parties, it must stand.

The phrase in the instant action which Epperson says is ambiguous requires that alimony be based on a percentage of his “gross income from Sirco Systems, Inc. or any division of Sirco or Jemison Investments or any successor employer of the defendant.” He claims that the uncertainty of this phrase makes it impossible to determine whether two bonuses paid in 1981 or 1982 should be available for the alimony calculation. The trial court concluded correctly, we believe, that the term “gross income” contemplates bonuses paid by an employer to an employee. The commonly accepted definition of the term “gross income” from Webster’s Third New International Dictionary (1966) is that it is an overall total amount exclusive of deductions. Thus, the term is comprehensive to the degree that it would contain bonuses paid by an employer. The trial court did not commit error in so holding.

As to the former husband’s failure to make the former wife a beneficiary of certain life insurance policies, the record is clear that Epperson failed to abide by this aspect of the divorce decree; thus the trial court did not err in this aspect of its contempt order.

Former husband’s next contention is that the contempt order is void because the petition for the rule nisi is grounded on a defective affidavit and thus the court was without jurisdiction to hold him in contempt.

The affidavit attached to the rule nisi petition is based on information and belief and, according to the former husband, such a petition fails to give the court jurisdiction to render a contempt order.

The former wife replies that where contempt proceedings are commenced by the issuance of a citation or rule nisi as opposed to the issuance of a warrant of arrest, no verification is required.

Where a constructive contempt proceeding is commenced by the issuance of a rule nisi, no affidavit in support of the petition for the rule is required. Carroll v. State, 350 So.2d 723 (Ala.Cr.App.1977).

In the case at bar the former husband was served with a copy of the petition for rule nisi. He appeared in response thereto with counsel and was accorded a hearing thereon where witnesses testified and evidence was received. These proceedings assured Epperson of all those constitutional rights to which he was entitled. Since no affidavit was required in support of the petition for the rule nisi, whether the affidavit that was attached thereto was based on information and belief is irrelevant. No error here.

Epperson’s next issue concerns the size of the amount of the alimony award. He contends that the award exceeds fifty percent of his net income and that in so doing it is prohibited. See Long v. Long, 56 Ala.App. 648, 324 So.2d 789 (1975). These arguments, however, ignore the fact that the divorce decree was based on an agreement between the parties. This agreement provided that Epperson’s gross income would be used in making the calculation. In fact, the record indicates that Epperson contacted the attorney who drew up the agreement and that he supplied information on which to base the terms of the agreement. Because of these facts, he cannot now complain that the alimony payments cost an unfair percentage of his net income.

In an interrelated issue Epperson argues that the trial court’s decision should be overturned because the original divorce decree was procured through fraud or mistake. He claims that the trial court improperly refused to allow him to prove fraud or mistake in connection with the original decree and argues that the parol evidence rule should not stand as a bar to admission of such testimony. He claims that the proffered testimony would have shown that he was unaware of the contents of the instrument at the time he signed it.

We note from a close examination of the record that numerous objections to the testimony concerning mistake or fraud were interposed. These objections ranged from objections made on the basis of form to objections based on the parol evidence rule. However, because of other testimony on the record, we feel that the trial court’s failure to hear the evidence was, at most, harmless error. Our examination of the record shows that Epperson contacted the attorney who drew up the agreement, consulted with him on several occasions when the proposed agreement was discussed, provided the attorney with the information in the agreement, was a college graduate, was the chief executive officer of a sizable business operation, and consulted his accountant about how much he would have to pay his former wife monthly based on the thirty-five, percent of gross income. Since such evidence is present, any error which could have resulted from the exclusion of other evidence is harmless error and cannot serve as grounds for a reversal. See Rule 61, Alabama Rules of Civil Procedure; Rule 45, Alabama Rules of Appellate Procedure.

Epperson’s final contention is that the trial court erred by awarding former wife an attorney’s fee.

The trial court found the former husband in contempt for failure to comply with the agreed divorce decree and refused to vacate the agreed divorce decree or to modify it as requested by the former husband.

It is within the trial court’s discretion to award an attorney’s fee to the wife in a divorce decree modification proceeding, Peterson v. Peterson, 403 So.2d 236 (Ala.Civ. App.), cert. denied, 403 So.2d 239 (Ala.1981), and to award an attorney’s fee to the wife where the husband has been held in contempt for failure to pay support. Foster v. Foster, 409 So.2d 833 (Ala.Civ.App.1981). The exercise of discretion in either instance will not be reversed except for an abuse of that discretion. We find no abuse of discretion by the trial court in this case.

The judgment of the trial court refusing to vacate or modify the divorce decree is affirmed. The judgment of the trial court holding the former husband in contempt is also affirmed.

The former wife has requested an attorney’s fee for defending this appeal. We hereby award her $500 for such representation.

AFFIRMED.

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