author: ADAMS, Justice. ALMON, Justice

text:
    Carol PRINE v. Clifford M. WOOD, Executor of the Estate of Julian C. Prine; Kay Prine; and Ray Prine.
    82-836.
    Supreme Court of Alabama.
    March 9, 1984.
    Ralph Loveless of Loveless & Banks, Mobile, for appellant.
    John Earle Chason of Chason & Chason, Bay Minette, for appellee Katherine Wren Prine.

      Charles Partin of Stone, Partin, Granade & Crosby, Bay Minette, Guardian ad Litem for Ray Prine.
   ADAMS, Justice.

This is an appeal taken pursuant to Code 1975, § 12-22-22, from a judgment of the Circuit Court of Baldwin County reversing an order of the Baldwin County Probate Court. In its judgment the circuit court held that Carol Prine should not be allowed to dissent from the will of her deceased husband, Julian C. Prine, and that she was not entitled to dower in his lands. We affirm on the authority of Land v. Bowyer, 437 So.2d 524 (Ala.1983).

Julian C. Prine executed his last will and testament on December 7, 1979. Included in the will was the following item:

I give, devise and bequeath unto CAROL REED, a close personal friend, the following described real and personal property:
(a) Mobile Mannor [sic] II, a trailer park owned by me in Bay Minette, Alabama, located on Clay Street, to include the land, all trailers, and any storage buildings or other out buildings.
(b) All furniture owned by me at the time of my death.
(c) My poodle dog, Sir Knight XIV.
(d) Any automobile which I may own and drive for my personal use at the time of my death.

The remainder of Prine’s estate was left to his two children, Kay and Ray Prine, under other items of the will.

On February 25, 1980, Julian C. Prine died, leaving his widow, Carol R. Prine (the former Carol Reed), and two children of a prior marriage, Kay and Ray Prine. Ray was a minor, while Kay was an adult living in another state.

At the time of the probate of Prine’s will, March 18, 1980, the trailer park known as Mobile Manor II was involved in litigation concerning a boundary line dispute. Another piece of property in the estate was also involved in litigation. Because of this, and also because the executor told her that she had twelve months in which to file a dissent, Carol Prine did not file a dissent and request for dower within six months. However, on September 23, six months and five days after the probate of the will, she was notified of the approximate value of the estate, and she then informed the executor of her intention to dissent. On June 17, 1981, one day less than fifteen months after probate of the will, she filed in probate court her dissent from the will and her petition to have dower set aside. Following a hearing, at which all parties were represented by counsel, the probate judge on August 18, 1981, issued an order which concluded:

It is, therefore, ORDERED, ADJUDGED, AND DECREED by this Honorable Court as follows:
1. Carol Prine is the lawful widow of Julian C. Prine, deceased.
2. Carol Prine has no separate estate in her own right.
3. During the six months immediately following the Probate of the will in this estate, property of the estate and real property bequeathed to Carol Prine was involved in litigation.
4. Carol Prine did file a dissent from the will of Julian C. Prine in this estate after six months from the Probate of the will, but within fifteen months from the Probate of the will.
5. The Widow’s Dissent filed by Carol Prine is hereby allowed and the Court further finds that she is entitled to dower in the lands of the deceased, Julian C. Prine.

Both of Prine’s children filed notice of appeal to the circuit court pursuant to Code 1975, § 12-22-21, which provides that an appeal may be taken either to the circuit court or to the supreme court. It then developed that the transcript of the probate court proceedings could not be found. On December 1, 1982, after several efforts to produce or reproduce the evidence, a settled and approved statement of the evidence was prepared and filed according to the procedure outlined under Rule 10(d), A.R.A.P.

This court’s opinion in Hall v. McBride, invalidating the statute providing for a widow’s dissent from her husband’s will, was rendered on June 30, 1982. The appeal of the case before us was then pending in the circuit court, and Hall was briefed and argued in that court by counsel for the parties. On May 18, 1983, the judge of the circuit court reversed the order of the probate judge, stating:

[U]pon consideration of the testimony as perfected and approved on the 1st day of December, 1982, by Harry D’Olive as trial judge pursuant to Rule 10(d) of the Alabama Rules of Civil [Appellate] Procedure and the exhibits introduced in the cause, and in further consideration of the arguments and briefs of counsel, it is the opinion of the Court that the dissent of Carol Prine from the Will of Julian C. Prine filed in his Estate after six (6) months from the probate of his Will should not be allowed and that the widow is not entitled to dower in the lands of the deceased, Julian C. Prine.

The initial issue to be considered in this case is whether the circuit court erred in refusing to dismiss this case for lack of proper or diligent prosecution after the timely taking of the appeal. The appellant argues that her opponents failed to conform to the Alabama Rules of Appellate Procedure in their appeal to the circuit court. She states in her brief:

The case of Grisset v. Hughes [218 Ala. 621, 119 So. 657 (1929)] succinctly summarized the jurisdiction and the procedure to be followed, when it stated:
The appeal from the probate to the circuit court in the instant case is provided for by section 6115 of the Code of 1923. It could have been prosecuted either to the Supreme Court or the circuit court under the provisions of this section, but in either event the jurisdiction is revisory only. Truett v. Woodham, 98 Ala. 604, 13 So. 519; Ex parte Sumlin, 204 Ala. 376, 85 So. 810. When the appeal is to the circuit court it is then considered as appeals to the Supreme Court. “On such appeals the jurisdiction of the circuit, as well as of the Supreme Court, is revi-sory only, and the judgment is reviewed solely upon the record, including a bill of exceptions when required.” Ex parte Sumlin, supra.

It is the appellant’s contention that this language mandates procedure as set out in the A.R.A.P.

When Grisset v. Hughes was decided, Code 1923, § 6115 (a predecessor of Code 1975, § 12-22-21), provided:

Appeal from the decree of the court of probate, or from the order, judgment, or decree of the judge of probate, may be taken by the party aggrieved to the circuit or supreme court, in the cases and within the time hereinafter specified, under the same rules and regulations which govern other appeals.

That language was subsequently modified, so that Code 1975, § 12-22-21 reads:

Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or supreme court in the cases hereinafter specified. Appeals to the supreme court shall be governed by the Alabama Rules of Appellate Procedure, including the time for taking an appeal. Appeal to the circuit court in such cases shall be within the time hereinafter specified. ...

Rule 1, A.R.A.P., provides:

These rules govern appeals to the Supreme Court of Alabama, the Court of Civil Appeals, the Court of Criminal Appeals, and proceedings on petitions for writs or other relief which these courts or judges thereof are empowered to grant.

We find nothing in this rule or the statute to indicate that an appeal from the probate court to the circuit court is governed by the A.R.A.P. In the absence of rule or statute setting out the procedure to be followed in such a case, we conclude that the circuit court acted within its discretion in determining procedural matters in the appeal. Finding no abuse of that discretion, we hold that there was no error with regard to the prosecution of the appeal.

We now come to the substantive issue of whether Mrs. Prine is entitled to dissent from her husband’s will and claim dower.

As noted above, this court’s opinion in Hall v. McBride was rendered while the appeal of this case was pending in circuit court. In August 1983, this court issued its opinion in Land v. Bowyer, in which we set out the cases to which Hall v. McBride would be applied retroactively. There, we said:

As pointed out in Gillian v. Gillian, 340 So.2d 785 (Ala.1976), “Dower does not vest automatically in the widow but is allocated only on petition of widow, heirs or other interested parties.” Continuing, the court noted, “Dower right is a chose in action or an equity and does not become a property interest until there has been an assignment thereof.” Gillian v. Gillian, 340 So.2d at 787, 788. . . .
To clarify our policy in this regard, we hold that Hall v. McBride is not to be applied retroactively where dower has already been assigned and become a vested right, but is to be applied retroactively where dower has not yet been assigned by any court. In addition, there should be retroactive application where dower has been assigned or denied and there was, at the time of the rendering of the Hall v. McBride opinion, a pending appeal of the matter containing a constitutional challenge to § 43-1-15.

Land v. Bowyer, supra.

In the case before us, although the probate judge held that the appellant was entitled to dower, dower has not yet been assigned. The appellant herself, in her reply brief, pointed out:

The only thing that was decided by the Probate Court was that [the appellant] was entitled to dissent. This means she would be entitled to dower in her deceased husband’s land and such portion of the personal estate that she would have been entitled to in case of intestacy. The next step, had Katherine Wren Prine and Ray Prine not appealed, would have been the appointment of commissioners to set aside dower.

Where dower has not been assigned, so that there is no vested right to be divested, we must apply Hall v. McBride retroactively. For that reason, we opine that the holding of Hall must apply in this case, and the appellant is not entitled to dissent from her husband’s will. The judgment of the circuit court is due to be, and hereby is, affirmed.

AFFIRMED.

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

ALMON, J., concurs specially.

ALMON, Justice

(concurring specially).

The basis of my special concurrence begins with Peddy v. Montgomery, 345 So.2d 631 (Ala.1977), which ultimately led to the view I expressed in Hall v. McBride, 416 So.2d 986 (Ala.1982). In the Hall case I predicted that certain widows would be unduly denied their right to dower. This is such a case.

      . Hall v. McBride, 416 So.2d 986 (Ala.1982).

      . Code 1975, § 43-1-15.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Kathy DEAN v. Marvin DEAN.
    Civ. 3290.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1982.
    Rehearing Denied Dec. 22, 1982.

      T.J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    Mary Ann Ross Stackhouse of Legal Services Corporation of Alabama, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case requiring application of the Parental Kidnapping Prevention Act of 1980 (28 U.S.C.A. § 1738A (West Supp.1982)) and the Uniform Child Custody Jurisdiction Act as enacted in Florida and Alabama (Fla.Stat.Ann. §§ 61.-1302-.1348 (West Supp.1982); §§ 30-3-20 to -44, Code of Alabama 1975 (Supp.1982)).

The wife, Kathy Dean, had resided in Alabama all of her life when she met her husband, Marvin Dean, on a visit in Florida. Marvin Dean had resided in Florida all of his life. The two were married in Grove-land, Florida, on or about January 13, 1979. During the brief marriage, the parties were apparently separated more than they were together.

About March of 1979, Kathy left her husband Marvin and returned to her mother’s residence in Alabama. She remained in Alabama about four or five weeks and returned to her husband in Florida. In May of 1979 she again went to Alabama for about six weeks, and then returned to Florida. Sometime in June or July of 1979 she returned to Alabama. On December 24, 1979, Michael Len Dean, the only child of the marriage, was born in Alabama.

Kathy returned to Florida to live with her husband on February 2, 1980. Kathy and Michael Len remained with Marvin for some five and one-half months. On July 15, 1980, Kathy returned to Alabama with Michael Len and remained.

In August 1980 Marvin petitioned the Circuit Court of Lake County, Florida, for divorce and temporary and permanent custody of the child. Filed with his petition were the required declaration under the Uniform Child Custody Jurisdiction Act and a financial affidavit. Copies of the filing were personally served on Kathy on August 14, 1980, by the sheriff of Marshall County, Alabama. Notice of the hearing on the petition for temporary custody of the child, to be held September 19, 1980, was also personally served on Kathy on August 25, 1980, by the Marshall County Sheriff’s Department.

On September 2, 1980, Kathy’s attorney filed a motion to dismiss the petition or to decline jurisdiction of the custody determination. On September 9, 1980, the attorney withdrew the motion. Temporary custody of Michael Len Dean was awarded to Marvin on November 24, 1980, by the Lake County Circuit Court. Kathy did not appear at that hearing.

On April 28, 1981, Marvin’s attorney sent Kathy notification of the final hearing to be held May 13, 1981, by certified mail. The letter was returned as undeliverable. Kathy did not appear at the hearing. On May 27, 1981, the Lake County Circuit Court entered judgment granting the divorce and awarding permanent custody of the child to Marvin.

On October 9, 1981, Marvin petitioned the Circuit Court of Marshall County, Alabama, for custody of Michael Len by enforcement of the Florida decree. Kathy answered, alleging that the Florida court’s judgment was void for failure of notice and void with respect to the granting of permanent custody under the Uniform Child Custody Jurisdiction Act (hereinafter UCCJA) because Florida was not the home state of the child. Kathy cross-petitioned for modification of the decree to grant permanent custody of the child to her. After hearing the court held Florida to be the child’s home state and directed that the Florida judgment be given full faith and credit under the Parental Kidnapping Prevention Act of 1980 (hereinafter PKPA).

Thereafter Kathy moved for a new trial, contending that Florida was not the child’s home state. The motion was overruled. Kathy filed a second motion for a new trial and submitted her affidavit stating that when she had returned to Alabama in May or June of 1979, she had done so intending to permanently reside in Alabama. The court denied the motion, but found that it had erroneously determined that Florida was the child’s home state. However, it held that even without the element of home state, the Florida court had jurisdiction to enter its judgment of custody under the PKPA. Kathy appealed and retained custody of Michael Len.

Kathy first questions the Florida court’s jurisdiction contending that under May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) and Calhoun v. Calhoun, 46 Ala.App. 381, 243 So.2d 37 (1970), in personam jurisdiction is necessary for a valid determination of child custody. She relies on Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), contending the Florida judgment invalid because she was neither served with process within Florida’s state limits nor appeared voluntarily. Full faith and credit is not due a judgment of child custody if the court did not have in personam jurisdiction of the mother. May v. Anderson, supra.

The jurisdiction of the courts of Alabama, and of Florida, in child custody matters is governed by the UCCJA and the PKPA. Prior decisions of the courts of this state imposing jurisdictional requirements inconsistent with the provisions of those acts are overruled.

One of the stated purposes of the UCCJA is to:

“(3) Assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state”;

§ 30-3-21, Code 1975. Certainly the maximum-contacts approach of the UCCJA is consistent with modern due process requirements. It is not necessary under the UCCJA that a parent be served with process or notice of a pending action while within the state’s boundaries. Service of proper notice outside the acting state’s boundaries does not offend current due process standards. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Before a valid custody decree can be issued under the UCCJA, reasonable notice and opportunity to be heard must be given each contestant. § 30-3^24, Code 1975; Fla.Stat.Ann. § 61.131. The PKPA contains a similar requirement. 28 U.S. C.A. § 1738A(e). It is undisputed that Kathy received personal service of the divorce' complaint and of the notice of the hearing on temporary custody. Kathy did not answer the complaint nor appear at the hearing. Under Florida law, a default judgment could have been entered against her, though it appears not to have been done. See 31 Fla.Stat.Ann. § 1.500. After the original service, where there has been no answer or appearance, no further service is necessary unless new or additional claims are asserted. Id. See also 30 Fla.Stat. Ann. § 1.080. The original complaint notified Kathy that Marvin was seeking temporary and permanent custody of the child; no new claims were asserted thereafter by Marvin. Kathy received adequate notice under Florida law to subject her to the Florida court’s jurisdiction.

The court below revised its final judgment and ruled that Florida was not the home state of Michael Len Dean. “Home state” is defined as:

“the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as parent for at least six consecutive months or, in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned.”

Fla.Stat.Ann. § 61.1306. The definition in the PKPA is essentially the same. 28 U.S. C.A. § 1738A(b)(4). The evidence in this case substantiates the trial court’s finding that Florida was not the child’s home state. In fact, it appears from the evidence that no state was the child’s home state at the time of the commencement of the original proceeding.

Though finding that Florida was not the child’s home state, the court nevertheless held Florida had jurisdiction to award custody under 28 U.S.C.A. §§ 1738A(c)(l), (c)(2)(B). Kathy contends that holding was error.

According to the PKPA:

“(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(B)(i) it appears that no other State would have jurisdiction under subpara-graph (A), and (if) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationship....”

Id. Alabama must give full faith and credit to a divorce decree rendered in Florida if the court had jurisdiction under Florida’s UCCJA and if the requirements of the PKPA are met. Because the PKPA preempts the UCCJA in areas of conflict, jurisdictional questions in interstate custody matters are decided by reference to the PKPA. U.S. Const. art. 6, cl. 2; Flannery v. Stephenson, 416 So.2d 1034 (Ala.Civ.App.1982).

A finding by the court below that no other state had home-state jurisdiction, the first requirement of (c)(2)(B), is substantiated by the evidence. The PKPA next requires that the state’s assumption of jurisdiction be in the child’s best interest because: (1) there is a “significant connection” between, the state and the child, and at least one contestant; and (2) there is “substantial evidence” available in the state concerning the child’s present or future care, protection, training and personal relationships. At the time of the commencement of the original proceeding, Marvin and Kathy’s child, Michael Len, had spent five and one-half of his seven months of life in the state of Florida. Kathy had cared for him there, and there, was more evidence there than anywhere else concerning the child’s care, protection, training, and personal relationships. Marvin had resided there most of his life, and it was the marriage domicile. It was in the best interest of the child that Florida decide the custody issue. Therefore the Florida court had jurisdiction under the PKPA, and its judgment is due full faith and credit by the state of Alabama.

Appellant also claims as error the lower court’s denial of her cross-petition for modification of the Florida judgment. Under the PKPA, no valid child custody determination may be made by a state while another state has continuing jurisdiction over the matter. 28 U.S.C.A. § 1738A(f)(2). According to the PKPA:

“The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or any contestant.”

28 U.S.C.A. § 1738A(d). Florida continues to be the residence of Marvin Dean; therefore Florida has continuing jurisdiction of this matter and Alabama is without jurisdiction to modify the Florida court’s decree. Kathy may seek modification in the Florida court.

Appellant also contends that it was reversible error for the trial court to overrule her objections to Marvin’s failure to submit the affidavit required by § 30-3-29, Code 1975, with his petition to the Alabama court. The proper affidavit had been filed with the petition in the Florida court. The trial court properly ruled that the case was governed by the PKPA, and that the affidavit was not required thereby. To impose that requirement upon an otherwise valid custody determination would preempt the federal statute.

Finally, appellant contends the trial court was in error in overruling her objection to the admission of the Florida court’s file into evidence. Appellant contends that the file was not properly certified under § 12-21-70 of the Code. Section 12-21-70 has been superseded in civil trials by Rule 44, A.R.Civ.P. § 12-21-70, Code 1975, code commissioner’s note. Rule 44 requires only that an official record be evidenced “by a copy attested by a person purporting to be the officer having the legal custody of the record, or his deputy.” Rule 44, A.R.Civ.P. The eighteen exhibits in this case constituting the Florida court’s file were accompanied by a certificate which substantially follows the Alabama form. See 2 C. Lyons, Alabama Practice § 44.5 (1973). It is attested by the deputy of the clerk of the court. Furthermore, each document is stamped as being filed in the Lake County Circuit Court. Accordingly, the requirements of Rule 44 were met and the exhibits were properly admitted.

The judgment of the trial court is due to be affirmed. The case is remanded to the circuit court of Marshall County for enforcement of the Florida decree.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    Ex parte Kathy DEAN. (Re Kathy DEAN v. Marvin DEAN).
    82-310.
    Supreme Court of Alabama.
    Feb. 3, 1984.

      T.J. Carnes of Carnes & Carnes, Albert-ville, for petitioner.
    Mary Ann Ross Stackhouse of Legal Services Corporation of Ala., Gadsden, for respondent.
   ON APPLICATION FOR REHEARING

EMBRY, Justice.

This court granted the writ of certiorari. However, on 16 September 1983, the writ was quashed as improvidently granted. The case is now before us on application for rehearing. That application is granted.

Kathy Dean petitions this court to review the Court of Civil Appeals’, 447 So.2d 728, holding which directs the Marshall County Circuit Court to enforce a child custody decree entered in the State of Florida incident to a marriage dissolution proceeding. This court granted rehearing in order to reconsider the Court of Civil Appeals’ application of the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A (West 1983) and the Uniform Child Custody Jurisdiction Act (UCCJA), Code of 1975, § 30-3-20, et seq.

The facts of this case are adequately set out by the Court of Civil Appeals. We reiterate, however, one fact central to this case: Although Kathy Dean was married in Florida, she gave birth to the subject child in Alabama, where she has lived almost continuously since that time.

Kathy Dean’s petition is based on two grounds. First, she contends the Florida court lacked the in personam jurisdiction necessary to entitle its decree, which determines the personal rights of an individual neither present nor domiciled in the State of Florida, to extraterritorial effect. Second, she argues the Court of Civil Appeals erroneously applied the PKPA and the UCCJA in determining that an Alabama court could not modify the Florida decree because Florida retained “continuing jurisdiction” under the PKPA.

We first consider the question of in personam jurisdiction. No state need give more full faith and credit to a judgment than that judgment would receive in the state that rendered it. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). Before a state may adjudicate personal rights arising out of a marital relationship, it must be able to exercise in personam jurisdiction over the parties. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948). A child custody determination is an in personam proceeding requiring in personam jurisdiction over the affected parties. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); accord Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

In order to determine whether the Florida court was vested with in personam jurisdiction over Kathy Dean, this court must look to Florida law. Restatement (Second) of Conflict of Laws § 105 (1971); see also Chapter III, introductory note (c).

Both the PKPA and Florida’s version of the UCCJA contain provisions ensuring that parties in a custody determination action are provided with reasonable notice and an opportunity to be heard. See 28 U.S.C.A. § 1738A(e) (West 1983); Fla.Stat. Ann. § 61.131 (West Supp.1983). However, neither act authorizes the assertion of in personam jurisdiction over nonresidents not present in the state. In short, neither act contains a “long-arm” provision necessary to assume in personam jurisdiction over absent contestants.

The general “long-arm” provision in Florida is similarly devoid of any assertion of in personam jurisdiction over nonresidents in child custody cases. Fla.Stat.Ann. § 48.-193 (West Supp.1983) provides in pertinent part:

“Acts subjecting persons to jurisdiction of courts of state
“(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.” (Emphasis added.)

It is clear to this court that neither Florida’s general “long-arm” statute, nor the PKPA, nor Florida’s UCCJA authorizes the assertion of personal jurisdiction over nonresident defendants in child custody proceedings. Consequently, the Florida court lacked the statutory authority necessary for the assertion of in personam jurisdiction over Kathy Dean. Similarly, any attempts at personal service upon Kathy Dean in this state, without the appropriate legislative authority, were ineffectual.

Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), stressed the importance of a state’s articulating legislatively its interest in securing personal jurisdiction over nonresidents in various circumstances:

“If Delaware perceived its interest in securing jurisdiction over corporate fiduciaries to be as great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to protect that interest.”

Id., at 214-215, 97 S.Ct. at 2585.

The posture of this case is precisely the same as that in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) (plurality opinion), where a father sought to enforce a Wisconsin custody decree in an Ohio Court. Justice Burton noted that although the defendant-mother had been personally served, Wisconsin lacked any statute authorizing such service in proceedings for the custody of children. Id., at 530-31, 73 S.Ct. at 841-842. The Supreme Court went on to consider:

“whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam_” (Emphasis added.)

Id., at 533, 73 S.Ct. at 843.

The full faith and credit clause interpretation woven within the holding of May remains crystal clear and binding upon this court.

Justice Burton noted:

“[I]t is now too well settled to be open to further dispute that the full faith and credit clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extraterritorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.” (Footnotes omitted.)

May, 345 U.S. at 533, 73 S.Ct. at 843 (quoting Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, 37 S.Ct. 152, 154, 61 L.Ed. 386 (1917)). Accord Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed. 132 (1978).

The Court in May also found that a proceeding for the custody of children, as in the case at bar, is in fact an in personam proceeding. Id., 345 U.S. at 534, 73 S.Ct. at 843.

The Court of Civil Appeals noted the lack of a “long-arm” provision authorizing service of process over nonresident defendants. However, that court held that the notice provisions contained within the UCCJA and PKPA were sufficient to satisfy the due process requirements of International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In a similar argument, respondent Marvin Dean contends that so long as Kathy Dean retains minimum contacts with the State of Florida, despite the absence of an applicable “long-arm” provision, Florida has jurisdiction over her in personam. In support of this argument, Marvin Dean relies principally upon Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

These arguments evidence a fundamental misconception of the narrow question before this court. International Shoe and its progeny prescribe the constitutional parameters, or bases, upon which a state may authorize its courts to assert jurisdiction over nonresident defendants. The question here is not whether a “long-arm” statute asserting personal jurisdiction over a nonresident defendant based solely upon her marital domicile violates due process, but rather, what is the extraterritorial effect of a judgment entered by a court lacking the authority to assert jurisdiction over the nonresident, nondomiciled defendant? In essence, the fact that a state may authorize its courts to assert in personam jurisdiction to the constitutional limits articulated in International Shoe, does not mean that it has necessarily done so. See Restatement (Second) of Conflict of Laws pp 101— 102 (1971); see also R. Leflar, American Conflicts Law Chapter 3 (2d ed. 1977).

In Kulko v. Superior Court of California, 436 U.S. at 86, 98 S.Ct. at 1693, the Supreme Court considered whether a California state court, in an action for child support, could constitutionally exercise in personam jurisdiction over a nonresident, nondomiciliary parent of minor children domiciled in California. The California court based personal jurisdiction and service of process upon its “long-arm” statute which reads as follows:

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” See 410.10 Cal.Civ.Pro.Code Ann. (West 1973).

Thus, the focus in Kulko was whether the defendant had “certain minimum contacts with [California] such that the maintenance of the suit [did] not offend ‘traditional motions of fair play and substantial justice.’ ” Id., at 92, 98 S.Ct. at 1696 (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. at 158 (1945)).

In contrast, as we have observed, Florida has no statute awarding such broad jurisdictional powers to its courts over nonresident defendants. To the contrary, Florida specifically restricts personal jurisdiction over nonresidents to the instances enumerated above, none of which authorizes the assertion of jurisdiction over Kathy Dean.

We hold that neither the Full Faith and Credit Clause of the United States Constitution, nor any legislation under its authority, entitles a child custody decree entered by a court lacking in per-sonam jurisdiction over affected parties, to extraterritorial effect. May v. Anderson, 345 U.S. 543, 73 S.Ct. 848. Accord Kulko v. Superior Court of California, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978). Accordingly, the Florida custody decree, which was entered without personal jurisdiction over Kathy Dean, is not entitled to full force and effect in Alabama. Having reached this conclusion, it is not necessary to address petitioner’s second argument. The decision of the Court of Civil Appeals is due to be, and hereby is, reversed.

APPLICATION FOR REHEARING GRANTED; WRIT GRANTED; REVERSED AND REMANDED.

FAULKNER, JONES, ALMON and BEATTY, JJ., concur.

TORBERT, C.J., and MADDOX, SHORES and ADAMS, JJ., dissent.


text:
    Kathy DEAN v. Marvin DEAN.
    Civ. 3290.
    Court of Civil Appeals of Alabama.
    Feb. 29, 1984.
   WRIGHT, Presiding Judge.

Upon remand to this court by the Supreme Court of Alabama, 447 So.2d 733, it is considered that this cause must be and hereby is reversed, in accordance with the opinion rendered by the Supreme Court on February 3, 1984, 447 So.2d 728, and the case is remanded to the Circuit Court of Marshall County, Alabama.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    ALABAMA REAL ESTATE COMMISSION v. Joseph F. BISCHOFF.
    Civ. 3417.
    Court of Civil Appeals of Alabama.
    Feb. 16, 1983.
    Rehearing Denied March 23, 1983.

      Charles A. Graddick, Atty. Gen., and Philip C. Davis, Asst. Atty. Gen., for appellant.
    Samuel N. Crosby of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellee.
   BRADLEY, Judge.

This is an appeal from an order directing payment from the Real Estate Recovery Fund.

On November 24, 1981 Joseph F. Bis-choff filed in the Baldwin County Circuit Court a complaint naming Robert P. Smith, Patricia H. Smith, and P & T Investments, Inc., as defendants. The complaint sets out that on August 20, 1979 plaintiff, a licensed real estate broker, entered into an employment contract with the defendants. Bischoff was hired as a sales associate of the firm. P & T Investment, as broker, promised to hold the sales commissions due plaintiff in trust for division between broker and plaintiff as provided in the agreement. According to the contract, any money Bischoff owed the firm would be deducted from his net commissions and the balance disbursed to him at closing. Plaintiff alleged in his complaint that Robert B. Smith and Patricia H. Smith, both licensed brokers, breached their contractual fiduciary duty by wilfully or negligently failing to hold the sales commissions in trust and pay him. A cause of action for work and labor done was also pleaded. Furthermore, allegations were made that defendants converted plaintiffs money to their own use. Bischoff alleged that he was owed $10,-083.53 for work and labor done.

The Smiths and P & T Investments did not respond to the complaint. A default judgment was entered in the amount of $10,083.53 plus costs. Plaintiff then, pursuant to section 34-27-31(e)(2), Code 1975, filed a verified claim against the Real Estate Recovery Fund. An application for an order directing payment was also filed.

The Real Estate Commission filed a pleading opposing the application directing payment out of the fund. In its pleading, the Commission argued that the Real Estate Recovery Fund, sections 34-27-31(c) to -31(e), Code 1975, is designed to protect the purchasers and sellers of real estate. The statute is not a vehicle for recovery of a breached employment contract. The Commission also pointed out that the allegations plaintiff made involved the time period from August 20, 1979 to September 28, 1981. The recovery fund became effective on October 1, 1979. The Commission argued that it is impossible to determine which alleged wrongs occurred within the period covered by the fund.

A hearing was held and Bischoff testified. The parties stipulated that the claim against the fund be reduced to $9,348.78. The parties also stipulated that the notice provisions of the Real Estate Recovery Fund Act were met. The Commission filed a motion to dismiss, which was denied. The trial court entered an order for payment out of the fund. The Commission brings this appeal.

The Real Estate Recovery Fund provides in part, the following:

“(2) When any aggrieved person recovers a valid judgment in any court of competent jurisdiction against any broker, salesman, corporation, partnership or branch office, for any act, representation, transaction or conduct which is in violation of the provisions of this chapter or the regulations promulgated pursuant thereto, which occurred on or after October 1, 1979, the aggrieved person may, upon the termination of all proceedings, including reviews and appeals in connection with the judgment, file a verified claim in the court in which the judgment was entered and, upon 10 days written notice to the commission, may apply to the court for an order directing payment out of the real estate recovery fund of the amount unpaid upon the judgment, subject to the limitations stated in this section.
“(3) The court shall proceed upon such application in a summary manner and, upon the hearing thereof, the aggrieved person shall be required to show:
“a. He is not a spouse of debtor, or the personal representative of such spouse;
“b. He has obtained a judgment, as set out in subdivision (2) of subsection (e) of this section, stating the amount thereof and the amount owing thereon at the date of the application, and, that in such action, he had joined any and all bonding companies which issued corporate surety bonds to the judgment debtors as principals and all other necessary parties.”

§ 34-27-31(e)(2) to -31(e)(3), Code 1975.

The Real Estate Commission contends that the judgment in question is not a “judgment” for purposes of the Real Estate Recovery Fund. The Commission argues that to be such a “judgment” the wrong committed must be a violation of the real estate license law. The acts committed by the defendants, although wrong, were not violations of the real estate license law.

To support its position, the Commission relies on cases from other jurisdictions. The cases cited generally hold that the right of recovery is a statutorily created right and there must be strict compliance with the statutory provisions. Robinson v. Murphy, 96 Cal.App.3d 763, 158 Cal.Rptr. 246 (1979); Torres v. Texas Real Estate Commission, 605 S.W.2d 394 (Tex.Civ.App.1980). The statute only authorizes recovery from the fund when a broker performs acts for which a real estate license is required. McGaughey v. Fox, 94 Cal.App.3d 645, 156 Cal.Rptr. 593 (1979). Further argument is made that the Alabama statute requires some brokerage or representative real estate transaction to be the basis of a recovery. The injury suffered by plaintiff is not the type of injury contemplated by the legislature in setting up the Real Estate Recovery Fund.

It is possible as suggested by the Commission that our legislature wanted to limit recovery from the fund to an aggrieved person other than a licensee who obtains a judgment against a licensee for wrongful acts committed in a transaction for which a license is required. However, the legislature failed to express such an intent in the language of the statute. It is this court’s duty to ascertain and give effect to legislative intent as expressed from the words of the statute. Winstead v. State, 375 So.2d 1207 (Ala.Civ.App.), cert. denied, 375 So.2d 1209 (Ala.1979). The broad language of the statute does not limit recovery under the statute to wrongful acts committed in a transaction requiring a license. Therefore, our statute differs greatly from the real estate recovery fund schemes of the jurisdictions the Commission relied on in brief. All these states’ statutes specifically provide that the act must be one for which a license is required. See Cal. [Bus. & Prof.] Code § 10471 (West 1964); Colo.Rev.Stat. § 12-61-302 (1973); Tex.Rev.Civ.Stat.Ann. art. 6573a(8) (Vernon 1968).

Our statute provides for a fund “from which any person ... aggrieved by an act, representation, transaction or conduct of a duly licensed broker, salesman, corporation, partnership or branch office, which is in violation of the provisions of this chapter or the regulations promulgated pursuant thereto, may recover.” § 34-27-31(c), Code 1975. The violations of the provisions of this chapter include failing to account or remit money belonging to others. § 34-27-36(a)(6), Code 1975. The trial court correctly concluded, as the statute reads, that plaintiff could recover under the fund. If the legislature intended otherwise, it is a matter to be taken up by amendment rather than construction. This case is due to be affirmed.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P.J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I respectfully dissent. The majority has correctly stated that “It is the court’s duty to ascertain and give effect to legislative intent as expressed from the words of the statute.” However, it may also be stated that such intent is to be derived from a consideration of the purpose of the statute as expressly stated or as may be indicated by looking at the statute as a whole. Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970). There can be no dispute that the purpose of Chapter 27, Title 34, entitled Real Estate Brokers, was to license real estate brokers and salesmen, provide for their qualifications and regulate their conduct and transactions with the public. The chapter in no way relates to their relations or contracts with each other, except to provide for the responsibility of the broker for the acts and transactions of his salesmen with the public.

It is evident that the Real Estate Recovery Fund was established to protect the public aggrieved by the acts of the broker and/or the salesman and not to protect them from one another. The failure of the legislature to specifically exclude the broker-salesman from the provision of “any person ... aggrieved by an act, representation, transaction or conduct of a duly licensed broker, salesman ... which is in violation of the provisions of the chap-ter_” does not serve to include them. The relationship between broker and salesman is personal and private and is governed by ordinary rules of contract as any other employer-employee or principal and agent relationship. I would reverse the judgment of the circuit court.


author: TORBERT, Chief Justice.

text:
    Ex Parte ALABAMA REAL ESTATE COMMISSION. (In re ALABAMA REAL ESTATE COMMISSION v. Joseph F. BISCHOFF).
    82-630.
    Supreme Court of Alabama.
    Feb. 3, 1984.

      Charles A. Graddick, Atty. Gen., and Philip C. Davis, Asst. Atty. Gen., for petitioner.
    Samuel N. Crosby of Stone, Partin, Gra-nade & Crosby, Bay Minette, for respondent.
   TORBERT, Chief Justice.

Joseph F. Bischoff, a licensed real estate broker, brought suit against Robert B. Smith, Patricia H. Smith, and P & T Investments, Inc., a real estate brokerage firm, alleging breach of contract by Robert and Patricia Smith (owners of the brokerage firm), debt for work and labor done for P & T, and conversion of trust funds by all defendants. Notice of this action was given to the Alabama Real Estate Commission (Commission). Bischoff obtained a default judgment and then proceeded to file a claim against the Real Estate Recovery Fund (Fund), pursuant to Code 1975, § 34-27-31(e)(2) (1982 Supp.), seeking payment on the original judgment from the Fund. The Commission filed a pleading in opposition to the application for payment.

The trial court found that Bischoff was an aggrieved party under the Fund Act, § 34-27-31(c), et seq., and ordered the Commission to pay Bischoff $9,384.78 from the Fund.

The Court of Civil Appeals affirmed; we granted certiorari and now reverse.

The issue presented is whether the acts of the Smiths and P & T constitute violations of the Alabama Real Estate License Law, § 34-27-30, et seq., and therefore give rise to an action against the Fund. Code 1975, § 34-27-31(e)(2) (1982 Supp.), sets out the scope of the Fund:

“When any aggrieved person recovers a valid judgment in any court of competent jurisdiction against any broker, salesman, corporation, partnership or branch office, for any act, representation, transaction or conduct which is in violation of the provisions of this chapter or the regulations promulgated pursuant thereto, which occurred on or after October 1, 1979, the aggrieved person may, upon the termination of all proceedings, including reviews and appeals in connection with the judgment, file a verified claim in the court in which the judgment was entered and, upon 10 days written notice to the commission, may apply to the court for an order directing payment out of the real estate recovery fund of the amount unpaid upon the judgment, subject to the limitations stated in this section.”

(Emphasis added.) The operative language of § 34-27-31(e)(2) is “any act ... in violation of the provisions of this chapter.”

In order to determine if the Smiths’ actions violate Chapter 27, we must look to § 34-27-36(a), which lists the violations constituting grounds for refusal, suspension, or revocation of licenses:

“The commission may upon its own motion and shall, upon the verified complaint in writing of any person, hold a hearing for the refusal to license or the suspension or revocation of a license previously issued. The commission shall have full power to refuse a license for cause or to revoke or suspend a license or otherwise punish the licensee, as provided herein, where such license has been obtained by false or fraudulent representation, or where the licensee, in performing or attempting to perform any of the acts mentioned herein, is deemed to be guilty of:
“(1) Making any substantial misrepresentation;
“(6) Failing, within a reasonable time, to account or to remit any moneys coming into his possession which belong to others; a complete record must be kept of funds showing to whom the money belongs, date deposited, date of withdrawal and other pertinent information concerning the transaction, and all escrow funds shall be deposited in a separate account in a financial institution approved by the commission and accounted for at all times;
“...; or
“(28) Any act of conduct, whether of the same or of a different character than hereinabove specified, which constitutes or demonstrates bad faith, incompetency or untrustworthiness or dishonest, fraudulent or improper dealing.”

(Emphasis added.) The statute refers to wrongful conduct committed in the performance of “any of the acts mentioned herein.” This reference is to those acts for which a real estate license is required under the Chapter. Chapter 27 does not purport to generally regulate matters for which a license is not required.

Section 34-27-30 describes the acts for the performance of which a real estate license is required and which are therefore subject to the Commission's regulation:

“It shall be unlawful for any person, partnership or corporation for a fee, commission or other valuable consideration or with the intention or expectation of receiving or collecting a fee, commission or other valuable consideration to list, sell, purchase, exchange, rent, provide rent list for a fee, lease, option or auction real estate or the improvements thereon, or to negotiate or attempt to negotiate any real estate transaction, advertise or hold himself out as engaged in the real estate business unless such person, partnership or corporation is licensed as a broker or salesman under the provisions of this chapter or is excluded from the operation of this chapter by other provisions hereof.”

(Emphasis added.) Section 34-27-30 outlines the kinds of activities which are subject to Chapter 27’s regulatory ambit. Hence, for example, the § 34-27-36(a)(l) prohibition against substantial misrepresentations only applies to situations where a real estate license was necessary in order for one to be involved in the underlying transaction. Because § 34-27-31 only applies to acts in violation of Chapter 27, which is limited to specific real estate acts, the Fund only applies to real estate transactions. Despite the holding of the Court of Civil Appeals that the Legislature failed to limit recovery from the Fund to situations involving wrongful acts committed in a transaction for which a license is required, we find that the Fund is limited to real estate transactions.

Admittedly, the Legislature could have granted to the Commission the power to regulate licenáees in broad terms similar to the high standards of conduct which apply to lawyers even when not engaged in the practice of law. See ABA Comm, on Ethics and Professional Responsibility, Formal Op. 336 (1974). By limiting license revocation to wrongful conduct occurring when the licensee performs acts subject to the real estate license law, the Legislature has similarly limited the Fund by tying it to the violations of the Chapter.

In addition to the express language of Chapter 27, we also find other indications that the Legislature did not intend the Fund to cover the situation described in this case. In interpreting a statute, we necessarily pay attention to the language and purpose of an act, its history and structure, and the knowledge of the Legislature at the time of passage. Posner, “Statutory Interpretation — in the Classroom and the Courtroom,” 50 U.Chi.L.Rev. 800, 817 (1983). In considering the Legislature’s intention, we must search for signs which tell us to interpret the statute broadly or narrowly.

It is evident that the Legislature did not intend the Fund to provide redress for the wrongdoing of licensees while not involved in a real estate transaction. For example, § 34-27-36(a)(25) provides that it is a ground for suspension or punishment for a licensee to be “convicted of a felony or [to enter] a plea of guilty or nolo contendere to a felony charge.” Unless the Fund is limited to wrongdoing in connection with a real estate transaction, the Fund would create a state-funded victim compensation program for damages which arise from the criminal conduct of real estate licensees. The Legislature surely did not intend such a result. This example can be multiplied over and over by allowing recovery for the other 27 types of wrongdoing listed in § 34-27-36(a) without regard to whether the action is in connection with a real estate transaction. We are confident that the Legislature did not intend in creating the Fund to provide insurance to cover the public’s interaction with licensees regardless of whether the occurrence involved real estate.

Our holding as to what the Legislature intended finds support in cases from other jurisdictions. For example, in McGaughey v. Fox, 94 Cal.App.3d 645, 651, 156 Cal.Rptr. 593, 597 (1979), the California court held:

“Plaintiff correctly argues that because Business and Professions Code section 10471 is intended to protect the public against loss resulting from fraud of real estate brokers, the statute is remedial and therefore must be liberally construed. (Nordahl v. Department of Real Estate (1975) 48 Cal.App.3d 657, 663, 121 Cal.Rptr. 794.) However we cannot, under the guise of liberal construction, disregard the express provisions of section 10471 which authorize recovery from the Real'Estate Fund only if a broker performed acts for which a real estate license is required.”

See Powers v. Fox, 96 Cal.App.3d 440, 158 Cal.Rptr. 92 (1979). See generally Torres v. Texas Real Estate Comm’n, 605 S.W.2d 394 (Tex.Civ.App.1980) (strict compliance). The California statute is admittedly much clearer in limiting recovery to real estate transactions. Cal.Bus. & Prof.Code § 10471(a) (West Supp.1983). Nevertheless, because we construe the language in our . Fund Act as referring to the earlier section of Chapter 27 which describes the acts for which a license is required, we find that Alabama law, like California’s, limits recovery to situations involving wrongdoing arising out of real estate transactions.

Since we hold that recovery is limited to acts committed in real estate transactions, we must now decide if the dispute between Bischoff and the Smiths concerned a real estate transaction. In this case, Bischoff was an independent contractor doing work and labor who was cheated out of his compensation by his employer. He did not purchase or sell property through the Smiths and their company. He merely worked for them. Apparently, the business failed owing him money and the Smiths fled. Although the debt may well have originated in a real estate transaction, the subsequent failure of the Smiths to pay was not directly connected to a real estate transaction and, therefore, the Fund does not apply. As Judge Wright noted in his dissent in the Court of Civil Appeals decision, “The relationship between broker and salesman is personal and private and is governed by ordinary rules of contract as any other employer-employee or principal and agent relationship.” Because the failure to pay is not directly related to the underlying real estate transaction, there can be no recovery from the Fund.

Since the Fund is limited to wrongdoing by licensees in connection with a real estate transaction, the trial court and the Court of Civil Appeals erred in allowing recovery in this case.

REVERSED AND RENDERED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY, BEATTY, and ADAMS, JJ., concur.

      . The definition of an aggrieved person under § 34-27-31 has recently been amended to exclude "real estate licensees or bonding companies when they are not principals in a real estate transaction_” 1983 Ala.Acts, No. 83-516, § 1. Previously, the term "aggrieved person” was unrestricted. The new provision, if in force at the time of commencement of this lawsuit, would have precluded recovery by Bischoff. Because of the result reached in this case, we need not decide whether the Legislature’s amendment constitutes an interpretation of the original act. See State v. Advertiser Co., 257 Ala. 423, 431, 59 So.2d 576, 582 (1952) (amendment enacted soon after controversy commences is logically regarded as legislative interpretation of original act).

      . Obviously, some of the types of wrongdoing are specifically limited by the particular subsections of § 34-27-36(a) which describe the conduct. See § 34-27-36(a)(14) ("[presenting to the Alabama Real Estate Commission ... a check that is returned unpaid”). Whenever the conduct is not limited or described in § 34-27-36(a), the general limitation applies which requires that the wrongdoing occur in connection with a real estate transaction.


text:
    Timothy Dane MOORE v. STATE of Alabama, DEPARTMENT OF REVENUE; J.C. Coats, Hearing Officer; Charles E. Crumbley, Attorney; George Mingledorff, Auditor.
    Civ. 3735.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Rehearing Denied Nov. 30, 1983.

      Timothy Dane Moore, pro se.
    Charles A. Graddick, Atty. Gen., B. Frank Loeb, Chief Counsel and John J. Breckenridge, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is a tax case arising from circuit court in Montgomery County, Alabama.

Timothy Dane Moore (herein Moore) and Jane K. Moore, his wife, were served with a proposed assessment for income tax by the Alabama Department of Revenue (herein the department) on December 9, 1982. The notice of assessment stated that a hearing was scheduled for January 6, 1983, at which time the taxpayer could appear and show cause why the assessment should not be made final. Moore appeared at the hearing and demanded that the department produce the sources upon which the calculation and assessment of the taxes had been made. The department declined to comply with his demands. Another meeting was scheduled and Moore appeared with a court reporter and evidence on his behalf. The department refused to allow the court reporter and ordered that no hearing be held.

On January 24, 1983, the department entered three Final Assessments of Income Tax against Moore and his wife for the calendar years 1979, 1980 and 1981. On January 26, 1983, Moore filed a Verified Complaint and Petition for Writ of Mandamus seeking relief by way of mandamus and declaratory judgment. Moore claimed the department had a duty to specify the factual basis for the proposed assessments and that he was entitled to examine that evidence in order to prepare his case.

Moore did not pay the tax due on the final assessments at the time of filing his complaint and petition for mandamus, nor did he post a supersedeas bond in double the amount of taxes due on the final assessments.

Thirty days elapsed from the date of the issuance of the final assessments without Moore serving a Notice of Appeal with the Secretary of the Department of Revenue or paying the tax or in the alternative posting a supersedeas bond as required by § 40-2-22, Code of Alabama 1975. The trial court dismissed the lawsuit on the grounds that Moore had failed to follow the proper procedure under § 40-2-22 to get into circuit court. Moore subsequently appealed that dismissal to this court.

Appellant Moore raises four issues on appeal, each of which involves the question of whether § 40-2-22 of the Code is the proper and exclusive method for challenging a final assessment for income tax issued by the Alabama Department of Revenue. We hold that § 40-2-22 is the proper and exclusive method of attack on a final assessment for taxes.

First, Moore contends that § 40-2-22, which provides a procedure for appeal from a final assessment for tax, is not a bar in the present case because he claims that the assessment had not become final at the time he filed his claims in circuit court. He argues that the assessment was not final because finality only occurs at the end of the thirty-day period allowed for judicial appeal.

Moore’s interpretation however is erroneous, for § 40-18-40 of the Code, dealing with the assessment of income taxes, provides that a hearing is to be set to hear the protests of a taxpayer and “upon hearing such protest or if the taxpayer fails to appear on the day set, the department of revenue shall finally fix, determine and assess the amount of tax due and notify the taxpayer thereof_” (Emphasis added.) In the present case, a hearing was held on January 6, 1983, and a final assessment of income tax was entered on January 24, 1983. Once the final assessment is entered a party has thirty days to appeal to the circuit court from the final assessment. Thus the thirty-day period is an appeal period and not a waiting period for the finality of a tax assessment to accrue.

Appellant Moore also contends that § 40-2-22 cannot operate to set aside the administrative procedural protections established in § 41-22-25, Code of Alabama 1975, otherwise known as the Alabama Administrative Procedure Act (AAPA). Section 41-22-25 specifies that the AAPA does not affect those proceedings commenced prior to October 1, 1983. Therefore, since the instant case began prior to October 1, 1983, the department was not required to follow AAPA procedures. The applicable procedures for determining a final tax assessment and for appealing such assessment were those delineated in § 40-18-40 and § 40-2-22 of the Alabama Revenue and Taxation Act.

Moreover, this court recently stated that “where a special statutory provision is provided as an exclusive method of review for a particular type case, no other statutory review is available.” Parsons v. State Board of Registration, 416 So.2d 1031, 1033 (Ala.Civ.App.), cert. denied (Ala.1982). This court has held that § 40-2-22 is the exclusive method by which a taxpayer may contest a tax assessment. See, State v. Ladner & Co., 346 So.2d 1160 (Ala.Civ.App.1977). Section 40-18-40 specifies that an appeal from an assessment may be had in the manner provided in § 40-2-22. See Outlaw v. State, 244 Ala. 153, 12 So.2d 388 (1943). Thus, the means of appeal are exclusive and Moore may not circumvent § 40-2-22 by attempting to use the Alabama Administrative Procedure Act.

On appeal Moore challenges the constitutionality of § 40-2-22 under the fifth and fourteenth amendments of the United States Constitution. The statute is not unconstitutional. “The right of appeal, as well as the procedure used to perfect such appeal in tax proceedings, is purely statutory, a matter of legislative discretion, and involves no inherent right of the Taxpayer.” Valentine v. State, 403 So.2d 270 (Ala.Civ.App.1981); McLendon v. State Department of Revenue, 395 So.2d 71 (Ala.Civ.App.1980), cert. denied, 395 So.2d 73 (Ala. 1981).

The Alabama Supreme Court has held that the forerunner of § 40-2-22 did not violate constitutional provisions. The court stated that,

“[T]he extent of as well as the procedure used to perfect an appeal under 40-2-22 is a matter of legislative discretion, and it is within legislative competency to require the payment of taxes or the execution of a bond as a condition precedent to an action questioning the amount of taxes due.”

McLendon v. State Department of Revenue, supra, citing Howell v. State, 282 Ala. 464, 213 So.2d 199 (1968). Requiring payment of taxes before delinquency occurs or posting of a supersedeas bond as a condition precedent to an appeal from a final assessment to a circuit court “does not violate Sections 10 and 13 of the Constitution of 1901 or the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.” Howell v. State, supra, quoting Ex parte State ex rel Attorney General, 252 Ala. 149, 39 So.2d 669 (1949). Even if a party directly attacks the constitutionality of the taxing system, the procedures of § 40-2-22 must be followed. Radue v. Bradshaw, 289 Ala. 481, 268 So.2d 760 (1972).

Lastly, Moore raises the question of whether § 40-2-22 can deprive the circuit court of jurisdiction to issue a writ of mandamus ordering the department to grant him an administrative hearing. Moore did not comply with § 40-2-22, but rather sought relief through filing a “mandamus and declaratory judgment action” to contest the procedures after the final assessments had been entered. Alabama courts have held that a declaratory judgment cannot be used as a substitute for an appeal. Lambert v. State Department of Revenue, 414 So.2d 983 (Ala.Civ.App.1982); Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844 (1962); and State v. Woodroof, 253 Ala. 620, 46 So.2d 553 (1950). Moreover, a mandamus action cannot be used to collaterally attack a final assessment issued by the Department of Revenue and is not a substitute for an appeal under the provisions of § 40-2-22, Hamm v. Harrigan, 278 Ala. 372, 178 So.2d 529 (1965).

In summary, however sincere and meritorious a complaint a party may have, the “Circuit Court is expressly granted the right to decide questions as to the legality of an assessment.” Lambert v. State Department of Revenue, supra. In order for jurisdiction to exist enabling a circuit court to entertain a challenge to the assessment a party must comply with the procedures of § 40-2-22. Appellant Moore did not comply with § 40-2-22, therefore we must affirm the trial court’s ruling that because Moore failed to comply with § 40-2-22 he was not properly before the court and his complaint could not be entertained.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice.

text:
    Ex parte Timothy Dane MOORE. (Re: Timothy Dane MOORE v. STATE of Alabama, DEPARTMENT OF REVENUE; J.C. Coats, Hearing Officer; Charles E. Crumbley, Attorney; George Mingledorff, Auditor).
    83-327.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    Timothy Dane Moore, pro se.
    Charles A. Graddick, Atty. Gen., B. Frank Loeb, Chief Counsel, and John J. Breckenridge, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for respondents.
   BEATTY, Justice.

In denying the writ, this Court observes that had petitioner properly preserved the alleged error by the Alabama Department of Revenue through the appellate process it would have been a reviewable issue.

WRIT DENIED.

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


text:
    James R. JOHNSON v. STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS and S. & R. Lumber Company.
    Civ. 3792.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Rehearing Denied Jan. 4, 1984.
    Certiorari Denied March 23, 1984 Alabama Supreme Court 83-413.

      Bennett H. Webb of Legal Services Corp. of Ala., Talladega, for appellant.
    George Cocoris, Gen. Counsel and Frank D. Marsh, Asst. Gen. Counsel, State Dept, of Indus. Relations, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

Appellant James R. Johnson (claimant) was a debarker for appellee S. and R. Lumber Company (employer) for approximately a year and one-half before being terminated. Claimant was arrested on DUI charges the night of August 31, 1981, and incarcerated as a result of his inability to post bond. He remained in jail from August 31, 1981, until September 6, 1981.

The parties disagree as to whether and when employer received notification of claimant’s incarceration. Though the parties also disagree as to the exact time claimant reported to work, the hearing officer concluded it to be approximately two weeks from the time of incarceration. Claimant was told upon returning to work that he had been replaced and would not be allowed to return to work.

Claimant filed a claim for unemployment compensation benefits. Appellee, Department of Industrial Relations (department) denied the claim both initially and subsequent to a hearing by an appeals referee. The department appeal board affirmed the disqualification. Claimant filed notice of appeal in the Circuit Court of Talladega County. Department filed a motion for summary judgment which the court granted, finding that claimant had voluntarily left his employment without good cause related to his work and that he was not entitled to compensation benefits. Claimant appeals.

Claimant argues two issues on appeal: (1) that his arrest, incarceration and financial inability to post bond does not constitute a voluntary act disqualifying him from compensation, and (2) that summary judgment was not proper in this case because factual evidence was in dispute.

Section 25-4-78, Code of Alabama 1975, provides in pertinent part as follows: “An individual shall be disqualified for total or partial unemployment ... (2) If he has left his most recent bona fide work voluntarily without good cause connected with such work.” In brief, claimant contends that because he was financially unable to post bond his absence from work was involuntary. Appellees, on the other hand, argue that financial ability is irrelevant and that claimant’s driving under the influence was a voluntary act not related to his work.

In Landrum v. James, 425 So.2d 1363, 1364 (Ala.Civ.App.1982), cert. denied, 425 So.2d 1364, 1365 (Ala.1983), an unemployment compensation claimant’s failure to report for work due to his incarceration for failure to pay an accumulation of parking tickets was determined to be a voluntary act disqualifying him from receiving compensation benefits. In Landrum we stated that, “Such absence from work was brought about solely through his voluntary act. The absence from work was the ‘fault’ of Landrum. He could have avoided jail and also the loss of his job by not violating the law. His loss of work was directly attributable to his ‘voluntary’ act.” Claimant in the present case attempts to distinguish Landrum on the facts. We “see no valid distinction in whether the incarceration is lengthy or for a relatively short time. The true principle is whether the claimant’s loss of employment was attributable to an act of his own volition and thus tantamount to a voluntary leaving.” Sherman/Bertram, Inc. v. California Department of Employment, 202 Cal.App.2d 733, 21 Cal.Rptr. 130, 133-34 (1962).

Regarding claimant’s second contention, a motion for summary judgment may be granted only when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. The moving party is required to establish the absence of genuine issue as to any material fact, and all reasonable inferences from the facts are to be viewed most favorably to the non-moving party. Allen By and Through Allen v. Whitehead, 423 So.2d 835 (Ala.1982). While there are some factual disputes regarding the notification of the employer of claimant’s incarceration and the time of claimant’s return to work, such facts are not material to the resolution of the present case in light of Landrum, which indicates the primary issue is the claimant’s voluntary action resulting in his incarceration.

Thus, under Landrum we find no material fact in dispute and that as a matter of law claimant’s own voluntary action of driving under the influence resulted in a voluntary absence from work, disqualifying him from benefits under § 25-4-78(2), Code of Alabama 1975.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    GADSDEN CIVIL SERVICE BOARD v. Rodger D. PHILLIPS.
    Civ. 3869.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Rehearing Denied Jan. 4, 1984.
    Certiorari Denied March 23, 1984 Alabama Supreme Court 83-411.

      Roger W. Kirby, Gadsden, for appellant.
    Roy 0. McCord of McCord & McCord, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal of a summary judgment.

The Gadsden Civil Service Board was established by 1931 Ala.Acts 596, as codified at Tit. 62, §§ 391-415 Code of Alabama (1940) (Recomp.1958). Subsequent amendment, 1951 Ala.Acts 671, codified at Appendix § 1203, Code of Alabama (1940) (Re-comp.1958), created a six-month probationary period for all covered employees, stating in pertinent part: “All appointments [of policemen] shall be on probation for a period of six months from the date of appointment.” 1951 Ala.Acts 671, § 9. At a meeting of the Gadsden Civil Service Board on June 7, 1976, a rule was adopted extending the probationary period of six months to a period of one year.

On December 20, 1982, Rodger D. Phillips, a Gadsden police officer since May 28, 1982, was notified in a letter from the chief of police that he was being discharged for poor police procedure, and that the Civil Service Board (Board) would meet that day to decide whether to consent thereto. Phillips, with his attorney, appeared at the meeting of the Board that evening. After presentations from the chief, counsel for Phillips and others, the Board, on December 28, 1982, gave its consent to the discharge.

Phillips appealed to the Circuit Court of Etowah County for trial de novo under Act 671, § 13. The court granted his motion for summary judgment, finding that he was no longer a probationary employee, that his dismissal did not meet the procedural requirements of Act 671, § 12, for removal of a non-probationary employee, and that the dismissal was, therefore, invalid. The court ordered Phillips reinstated with back pay and benefits. The Board appeals.

The Board contends that the six-month probationary period set by Act 671, § 9 was implicitly amended by enactment of § 36-21-46(a)(3), Code of 1975. Section 36-21-46(a)(3) is a part of the Peace Officers Standards and Training Commission Act passed by the legislature in 1973. Among other things, that act established minimum standards for appointment of any new peace officer in the state. Section 36-21-46(a)(3) provides in summary that prior to appointment, an applicant shall have completed at least 240 hours of formal police training in a recognized police training school. However, an applicant may be provisionally appointed without having completed such training, subject to the condition that he shall complete it within nine months after the appointment; should he fail to complete the training, his appointment shall be null and void.

It appears clear to this court that there is no conflict between § 9 or § 12 of the Gadsden Civil Service Act — Act 671— and § 36-21-46(a)(3). Section 9 provides for a probationary appointment of six months during which time the officer or fireman may be discharged by his chief with consent of the Board merely by assigning his reason in writing to the Board. If he is not so discharged within six months, his appointment is deemed complete. Under § 12 he thereafter may be discharged only with cause upon written charges duly served upon him at least five days before a public hearing before the Board, where he shall be given opportunity to face his accusers and be heard in his own defense.

Section 36-21-46 relates to qualification for an appointment as a law enforcement officer. No appointment (probationary or otherwise) may be made to any police department except subject to § 36-21-46(a)(3). On the other hand, an appointee as a Gadsden police officer qualified under § 36-21-46(a)(3) is still probationary for six months after appointment. It follows that an appointee, because subject to § 36-21-46(a)(3), though completing his probationary period under the civil service act, remains provisional for nine months or until he completes the required training. Though he is not probational, he is provisional. If he does not qualify within nine months of his appointment, his appointment becomes null and void by operation of law. § 36-21-46(a)(3). Thus the statutes complement but do not conflict. Each has its own field of operation and should be so construed. B.F. Goodrich Co. v. Butler, 56 Ala.App. 635, 324 So.2d 776, cert. quashed, 295 Ala. 401, 324 So.2d 788 (1975).

The submission by the Board that it extended the period of probation from six months to one year to ensure that an appointee could get his required training under § 36-21-46(a)(3) before his appointment became complete is of no import. Frankly, we fail to see the efficacy of such effort. If he failed to get his training within nine months, he was out in any event.

The Board further contends that the six-month period for probation in Act 671 is a minimum which it may extend in the reasonable exercise of its rule-making authority. The contention is untenable. The rule-making authority of the Board extends only to the carrying out of the purpose of the act as it is written. Act 671, § 6. Ex parte City of Florence, 417 So.2d 191 (Ala.1982). The provision as to the probation period is specific in the act. It may not be changed by administrative rule. Jefferson County Board of Education v. Alabama Board of Cosmetology, 380 So.2d 913 (Ala.Civ.App.1980).

We say there was no waiver of right to the statutory notice provided by Act 671, § 12, even though Phillips was given a letter of dismissal by the chief of police and appeared with counsel before the Board. We say it because the letter and appearance before the Board were under authority of § 9, not § 12. The discharge was by the chief under § 9. The Board did not discharge as required in the case of nonprobational policeman by § 12. It merely consented to the action of the chief of police. There has been no discharge of Phillips by the Board as required by the statute.

Therefore the circuit court correctly held that the dismissal of Phillips was contrary to law. It was invalid for lack of statutory due process and must be set aside.

However, we find error in the judgment of the court restoring Phillips to active duty as a policeman of the City of Gadsden with all back pay and benefits, from the date of his dismissal. It remains to be determined if his dismissal would have been justified if proper procedure had been granted. It must follow that if discharge is determined justified by the Board after extending proper procedural due process, Phillips has suffered no injury from such discharge. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Wilson v. Taylor, 658 F.2d 1021 (5th Cir. 1981). On the other hand, if after proper predetermination procedure, his discharge is found not justified, Phillips, in the absence of some intervening circumstances, would be due to be reinstated with all pay and benefits. It perhaps might be of interest to call attention again to the limitations of appointment imposed by § 36-21-46(a)(3). We find nothing in the record to indicate whether Phillips had, prior to his dismissal, completed the required training school. However, the proposition is not before us.

It is the judgment of this court that the determination of the trial court that Phillips was denied statutory due process, and his dismissal was thereby invalid is affirmed. The judgment of the trial court ordering reinstatement with all back pay and benefits is reversed and set aside. The circuit court is directed to order the Gadsden Civil Service Board to require the Chief of Police of the City of Gadsden, or any other accuser of Rodger D. Phillips, to immediately file with the Board written charges or complaint against him, if deemed warranted, serving upon him a copy thereof; and the Board will thereafter proceed to investigate such charges, hold hearing thereon and render a decision, all as required by Acts of Alabama 671, § 12 (1951). If such charges are not filed, heard and decision rendered, all within a reasonable time, Phillips shall be thereafter restored to duty as may be required by the court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.

      . See generally, § 1-1-10, Code of Alabama 1975.


text:
    Edward A. JOHNSTON v. STATE PERSONNEL BOARD OF ALABAMA, Department of Corrections for the State of Alabama, Governor George C. Wallace, Governor of Alabama.
    Civ. 3916.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1983.
    Rehearing Denied Jan. 11, 1984.
    Certiorari Denied March 23, 1984 Alabama Supreme Court 83-465.

      Richard A. Lawrence, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard N. Meadows, Asst. Atty. Gen. for Appellee State Personnel Bd., Jacquelyn Lufkin Stuart, Special Atty. Gen., for Ap-pellee Dept, of Corrections, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal of an administrative decision terminating employment.

At approximately 10:15 A.M. on June 23, 1982, Edward A. Johnston, a correctional officer at Kilby Corrections Facility, was assigned to tower four and charged with the duty of watching the prison’s fence. At that time, Johnston’s supervisor, Lt. Amos Lewis, noticed him sitting in the tower with his head down as if asleep. Lewis left momentarily and returned with the Assistant Director of the Investigative Division, Rodney L. Manning. Both men then observed Johnston sitting head down for approximately three and one-half minutes. Lewis and Manning’ entered the tower and asked Johnston if he had been sleeping. Johnston denied sleeping but admitted that, because of a sore neck, his head had been down and that he had seen no one, including Lewis, near his tower in one and one-half hours. He also admitted that he had failed to follow procedures by not reporting his neck pain to his shift commander. This incident was reported to Captain Murdock and Deputy Warden J.E. Murphy. Mur-dock relieved Johnston from his post for the day and told him to leave the institution. Upon Johnston stating that he had no transportation home, Murdock told him to remain in the main lobby until the two o’clock shift change. At 12:02 P.M. Johnston was observed in central control, an area restricted to those authorized by the shift commander or a higher level officer. When questioned about being there without permission, Johnston stated that he had been attempting to use the telephone. Telephones were available in the lobby.

On July 8,1982, Johnston was notified by written memorandum from Murphy that his termination was being recommended. He was informed that the allegations against him, being inattentive at his post and entering central control after being told to remain in the lobby, constituted violations of paragraphs 7B, 7C and 8 of Board of Corrections Administrative Regulation 207. These paragraphs provide in pertinent part that Board of Corrections employees are expected to:

“7B — Render full, efficient, and industrious service.
“7C — Respond promptly to directions and instructions.
“8 — Each officer’s and employee’s conduct shall, at all times, be consistent with the maintenance of the proper security and welfare of the institution and of the prisoners under his or her supervision.”

He was also advised of his right to written rebuttal of the charges and of his right to a hearing at which he would have the right to counsel and the opportunity to cross examine.

On August 4, 1982, Board of Corrections Administrative Board Number One met and found Johnston guilty of violating Administrative Regulation 207, paragraphs 7B, 7C and 8. On August 17, 1982, Johnston was informed by Joe S. Hopper, Board of Corrections Commissioner, that the Board had found him guilty of the following:

“1. Failure to render full, efficient and industrious service (Paragraph 7B, Administrative Regulation 207 and Item 15, Annex E, Administrative Regulation 208).
“2. Failure to respond promptly to directions and instructions (Paragraph 7C, Administrative Regulation 207 and Item 5, Annex E, Administrative Regulation 208).
“3. Failure to conduct yourself consistent with the maintenance of proper security and welfare of the institution and prisoners under your supervision (Paragraph 8, Administrative Regulation 207 and Item 15, Annex E, Administrative Regulation 208).”

The letter again stated that:

“These charges stem from your not being fully attentive while posted to Tower # 4 on or about 10:15 a.m., June 23, 1982, thereby breaching the security of the Kilby Corrections Facility. After being released from your post and told to go home, or wait in the main lobby for your ride, you entered Central Control to use the phone.”

The letter mentioned additional considerations supporting dismissal, including marginal work performance and numerous reprimands for absenteeism. Hopper informed Johnston that, based on these findings and considerations, he had approved the Board’s action and ordered Johnston’s dismissal effective August 27, 1982. Johnston was also informed of his right to appeal to the State Personnel Board.

Johnston appealed, and a hearing was held before a personnel board hearing officer on December 13, 1982. The hearing officer filed his report with the personnel board, stating:

“The main charge against Mr. Johnston was the charge of sleeping on his post. In the opinion of the Hearing Officer, this charge was not proved, although Mr. Johnston did admit being inattentive, brought about by neck problems which he did not report. As far as the charge of being late on several occasions, testimony was that Mr. Johnston did report in with the proper officials on each occasion. As far as using a telephone in central control, it is the belief of the Hearing Officer that Mr. Johnston did not know this was wrong.
“It is the opinion of this Hearing Officer that the punishment against Mr. Johnston was too severe. The Hearing Officer also recognizes that the 240 hours of law enforcement training is expensive to the State, and any officer who has had it should be salvaged if possible. It is recommended that the dismissal be changed to a suspension if the Personnel Board has such power. If not, the Hearing Officer’s recommendation is that Mr. Johnston be reinstated to his position with full back pay.”

On February 16, 1983, after hearing oral arguments, the personnel board upheld Johnston’s termination. Johnston’s request for rehearing was denied. After the Circuit Court of Montgomery County denied his petition for writ of certiorari, Johnston appealed here. He asserts that (1) the personnel board and trial court made an improper application of the findings viewed in a legal sense, and that (2) he was denied due process of law. We disagree.

The controlling statute in this situation is § 36-26-27, Code of Alabama 1975, which states in pertinent part:

“An appointing authority may dismiss a classified employee whenever he considers the good of the service will be served thereby, for reasons which shall be stated in writing, served on the affected employee and a copy furnished to the director, which action shall become a public record. The dismissed employee may, within 10 days after notice, appeal from the action of the appointing authority by filing with the board and the appointing authority a written answer to the charges. The board shall, if demand is made in writing by the dismissed employee within 10 days after notice of discharge, order a public hearing and, if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the board may determine.”

Both parties agree with our previous holdings in Stewart v. Hilyer, 376 So.2d 727 (Ala.Civ.App.1979), and Hilyer v. Blackwell, 377 So.2d 1090 (Ala.Civ.App.), cert. denied, 377 So.2d 1092 (Ala.1979), that dismissal by an appointing authority, in this case the Commissioner of the Department of Corrections, is reviewable by the personnel board only to determine if the reasons stated for the dismissal are sustained by the evidence presented at the hearing. The Board of Corrections contends that the hearing officer and the personnel board correctly found the charges against Johnston sustained. Johnston argues that the hearing officer found them unwarranted and further argues that the personnel board would have reached the same conclusion but for its misunderstanding of the charges and the hearing officer’s findings. We find no indication that the personnel board misunderstood the charges or the hearing officer’s findings.

The principal charge against Johnston, as plainly set out in Deputy Warden Murphy’s memo and again in Commissioner Hopper’s letter, was based upon his being “inattentive” not upon his being asleep at his post. His inattentiveness alone, if proved, was a sufficient ground to warrant his dismissal under Administrative Regulation 207, Paragraphs 7B and 8 and under Item 15, Annex E to Administrative Regulation 208. It is undisputed that this allegation was proved and that such a finding by the Board of Corrections and personnel board is supported by the record. We would point out that the hearing officer, although incorrectly believing that the principal charge was sleeping on duty, reached the same conclusion, finding Johnston, by his own admission, guilty of inattentiveness.

The hearing officer’s opinion that the punishment was too severe is of no effect. Only if the charges had been unwarranted could Johnston have been reinstated with a lesser punishment. Hilyer, supra at 1091. These charges being warranted, the hearing officer had no authority to recommend a lesser penalty.

We find no error in the circuit court’s denial of certiorari. Although cer-tiorari is the proper method of review, Stewart, supra, at 729, such a writ is discretionary in order to promote the ends of justice. M. W. Smith Lumber Co. v. Alabama Public Service Commission, 247 Ala. 318, 24 So.2d 409 (1946). Our review of a denial of certiorari in cases of this nature is limited to a determination of whether there was any legal evidence before the Board to sustain its findings. Roberson v. Personnel Board, 390 So.2d 658 (Ala.Civ.App.1980). We find there was.

We also find no support for Johnston’s argument that he was denied due process. He asserts that § 36-26-27, Code of Alabama 1975 requires that an employee be given written notice prior to his termination and that Administrative Regulation 208, paragraph (e)(4)(a)(3) requires that such notice, when given to a permanent employee of the Department of Corrections, must refer to one or more of the charges contained in Annex E of Administrative Regulations 208, which states in pertinent part that written notice must, “state the specific rules or regulations violated to include items listed in Annex E as appropriate.” The terms “to include” and “as appropriate” indicate a desire to encourage the use of Annex E but not to require reference to it. The law does not require that the charges filed before administrative boards be drawn with the same refinements as pleadings in court. All that is required is that the charges given be sufficient to warrant dismissal and specific enough to apprise the employee of the allegations against him. Simpson v. Van Ryzin, 289 Ala. 22, 265 So.2d 569 (1972). Both Deputy Warden Murphy’s memo and Commissioner Hopper’s letter met these requirements. Johnston’s contention, that he was denied due process by Commissioner Hopper’s making the final decision to terminate him without having been present at the Administrative Board’s hearing, is not accepted. His presence is not required by statute, § 36-26-27, Code of Alabama 1975, or by Board of Corrections Administrative Regulation 208. In view of the fact that Johnston received three hearings, we perceive no violation of due process.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Johnston later admitted that sitting in this position would have prevented him from seeing an escape attempt.

        . We do not address the issue of Johnston's improperly entering central control since that allegation, constituting a violation of Administrative Regulation 207, Paragraph C, was not punishable by dismissal. Item 5 Annex E, Administrative Regulation 208.

      . Item 15 mandates dismissal for negligent or careless work performance resulting in waste of public funds, damage to material, delay in production, injury or loss or danger of loss to life.