author: BRADLEY, Judge.

text:
    Douglas Ross MacLEOD v. Edna Muriel MacLEOD.
    Civ. 3856.
    Court of Civil Appeals of Alabama.
    Nov. 16, 1983.
    Rehearing Denied Jan. 4, 1984.
    Certiorari Denied April 27, 1984 Alabama Supreme Court 83-415.

      Sidney Gene Landreau of Faulk & Lan-dreau, Phenix City, for appellant.
    Kenneth L. Funderburk of Phillips & Funderburk, Phenix City, for appellee.
   BRADLEY, Judge.

Appellant (Douglas Ross' MacLeod) and appellee (Edna Muriel MacLeod) were divorced in a proceeding commenced in the County of Middlesex by an order of the Supreme Court of Ontario, Canada on July 25, 1980. The decree was finalized on October 28, 1980. As part of said order, the appellant was ordered to pay the appellee the sum of $1,000 per month as alimony.

In January of 1981 appellant, a practicing pediatrician, relocated his medical practice in Phenix City, Russell County, Alabama. During that year appellant suffered a substantial decline in income. In 1980, at the time of the divorce, the appellant had an income of approximately $50,000 per year. In the year 1981, following his relocation, he had an income of $12,000. As a result of the substantial decline in income, appellant became some $11,000 (in Canadian dollars) behind in alimony payments.

On January 28, 1982 the appellant reduced the arrearage to a money judgment before the County Court of the County of Simcoe, Barrie, Ontario, Canada. On April 16, 1982 she filed suit in Russell County, Alabama seeking enforcement of the record judgment. Appellant filed a proceeding in the Supreme Court of Ontario on November 18, 1982, wherein he attempted to have the court rescind any arrears of support which accrued through November 18, 1982. This petition was supported by an affidavit signed by appellant, dated September 21, 1982.

A stay of the judgment and the Alabama proceedings thereon initially entered by the Ontario Supreme Court was removed by it on December 7, 1982.

On May 12, 1983 the Circuit Court of Russell County ruled in favor of appellee on her suit.

The issues we must consider on appeal are, first, did the County Court of the County of Simcoe, Barrie, Ontario, Canada have jurisdiction to render the money judgment, and if so, can this judgment be afforded comity in the courts of the state of Alabama.

The courts of Alabama have recognized the principle of comity. Comity, however, is not required of state courts, but is a principle of courtesy where one jurisdiction will give effect to the laws and decisions of another jurisdiction out of deference and respect. Whether a court will give comity to a foreign court’s decisions rests in the judicial discretion of the court where enforcement is sought. State ex rel. Speer v. Haynes, 392 So.2d 1183 (Ala. Civ.App.1979), rev’d on other grounds, 392 So.2d 1187 (Ala.1980).

Additionally, Alabama decisions have stood for the principle that prior to enforcing a foreign judgment an Alabama court has the power to inquire into the jurisdiction of the foreign court to render the judgment sought to be enforced. Wilson v. Lee, 406 So.2d 416 (Ala.Civ.App.1981). It has also been held that a defendant may defeat the enforcement of a foreign judgment by showing a lack of jurisdiction in the court rendering such judgment. Prudential Insurance Co. of America v. Lewis, 306 F.Supp. 1177 (N.D.Ala.1969).

Appellant, in his defense, contends that he was served by the County Court of Simcoe by a process known under Canadian law as a special writ of endorsement and that said method of process is not proper under Canadian law for a suit on arrearage under a divorce decree that is not final or conclusive. Canadian courts have held in cases such as Small v. Zacher, [1975] 8 O.R. (2d) 372, that judgments for arrears in alimony are not final and conclusive and additionally are not the proper subject of a specially endorsed writ. These cases, however, are distinguishable from the present situation. Small v. Zacher, supra, involved the attempted collection of an ar-rearage of alimony contained in a foreign judgment. This is not the case here. We are concerned with whether a writ of special endorsement is the proper way to commence an action in Canada to collect an arrearage of alimony resulting from a divorce decree issued out of a Canadian court. If it is not, the Canadian courts would not have had jurisdiction over Mr. MacLeod, and he would be able to defeat the enforcement of the Canadian judgment. Prudential Insurance Co., supra.

Also, Canadian courts have held that in order for the plaintiff to be entitled to a default judgment in such cases, the plaintiff must meet certain requirements of rule 8 and rule 20 of the rules of the Supreme Court of Canada. Lee v. Pickney, [1978] 6 B.C.L.R. 289. The provisions of these rules are mandatory and essential, and the omission of the elements required from the pleadings will be fatal to an application for leave to enter a final judgment. Bank of N.S. v. Wyne, [1963] 46 W.W.R. 50, 43 D.L.R. (2d) 674 (B.C.C.A.). The record, in the case at bar, reflects that the requirements of rule 8 and rule 20 of the Supreme Court Rules of Canada were complied with in issuing the writ of special endorsement. Therefore, the Canadian courts had jurisdiction over this matter and Mrs. MacLeod was entitled to a default judgment. Lee v. Pickney, supra.

Moreover, appellant’s argument that judgments for alimony are not final for the purpose of affording a cause of action outside the jurisdiction may be valid, but that is not the question with which we are presently concerned. The Ontario court held in Lear v. Lear, [1973] 3 O.R. 935, 38 D.L.R. (3d) 655, 3 R.P.L. 27, that:

“[judgments for alimony and maintenance, although final in the sense that leave to appeal would not be required, are nevertheless not final for the purpose of affording a cause of action outside the jurisdiction, except as to enforcement by any other superior Court in Canada following registration of the corollary relief order pursuant to s. 15 of the Divorce Act, 1967-68 (Can.), c. 24 [now R.S.C.1970, c. D-8], presumably no such enforcement would be granted without acceptable evidence that no order of variation has been applied for or granted by the Court which granted corollary relief.” (Citation omitted.) (Emphasis added.)

The cause of action with which we are presently concerned, on the other hand, was not outside the jurisdiction of Canada. According to Lear, supra, any other superior court in Canada (i.e. any other court that did not render the divorce) may enforce a judgment for alimony and maintenance if no order of variation has been applied for or granted by the court which granted corollary relief. The trial record reflects that Mr. MacLeod did not apply for a variation of his maintenance order until after Mrs. MacLeod had sought enforcement of the decree nisi. Hence, the judgment for alimony was final for enforcement by another Canadian court and, thus, was the proper subject of a specially endorsed writ. Small v. Zacher, supra.

One other jurisdictional question must be resolved before our court may grant comity in this action. This question is whether the County of Simcoe, Barrie, Ontario had the authority to render a judgment for arrears on a divorce (decree nisi) that was rendered in the County of Middle-sex. Section 15 of Chapter 8 of the Divorce Act of Canada states that:

“An order made under section 10 or 11 by any court may be registered in any other superior court in Canada and may be enforced in like manner as an order of that superior court or in such other manner as is provided for by any rules of court or regulations made under section 19.” (Emphasis added.)

Section 11 of the Divorce Act includes orders requiring the husband to pay a lump sum or periodic sums for maintenance of the wife. Hence, it appears that pursuant to section 15 and section 11 of the Divorce Act of Canada that a court may enforce an order (i.e. enter a judgment) of another court as if it were rendered as an order of that court. Therefore, the County of Sim-coe, Barrie, did have jurisdiction to enforce the order of Middlesex County and render a default judgment against Mr. MacLeod.

Since it has been determined that the Canadian courts had jurisdiction to enforce the decree nisi, and that the specially endorsed writ was the proper way to commence the action, this court can now consider the question of affording the Canadian judgment comity in the state courts of Alabama. In State ex rel. Speer, supra, this court held that once jurisdiction was determined, then the question of comity rested in the judicial discretion of the court where enforcement is sought.

Having determined that the Canadian court had jurisdiction to render the judgment now sought to be enforced in Alabama, the Russell County Circuit Court exercised its discretion by enforcing the Canadian judgment through comity. Thus, we find no abuse of the discretion reposed in that court and we, therefore, affirm its judgment.

Appellee’s request for an attorney’s fee is denied.

AFFIRMED.

HOLMES, J., concurs.

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


source: Caselaw Access Project

license: Public Domain

text:
    DEPARTMENT OF INDUSTRIAL RELATIONS and Black Diamond Coal Company v. James W. PICKETT, Amos Boyd, Leodis Majors, and Johnson T. Morse.
    Civ. 3791.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1983.
    Rehearing Denied Jan. 4, 1984.
    Certiorari Denied April 20, 1984 Alabama Supreme Court 83-416.
    Barry V. Frederick and Harry L. Hopkins of Lange, Simpson, Robinson & Som-erville, Birmingham, for appellant.

      William E. Mitch of Cooper, Mitch & Crawford, Birmingham, for appellee.
   BRADLEY, Judge.

This is an unemployment compensation case, and is before this court for a third time.

Appellees, James W. Pickett, Amos Boyd, Leodis Majors, and Johnson T. Morse, filed claims for unemployment compensation. Their claims were denied at every level of administrative proceedings before the Department of Industrial Relations (appellant) on the ground that appel-lees were disqualified from receiving benefits under section 25-4-78(1), Code 1975.

Appellees appealed the administrative determination to the Circuit Court of Bibb County, Alabama. The circuit court entered its findings of fact and conclusions of law on December 28, 1978. The court’s findings of fact included a finding that Black Diamond Coal Company (appellant) gave appellees their layoff notices in anticipation of an industry strike. The court nonetheless concluded that appellee Morse was entitled to unemployment compensation from December 1, 1977 until February 7, 1978, and that appellees Pickett, Boyd, and Majors were entitled to unemployment compensation from December 1, 1977 until March 31, 1978.

The department filed a motion to vacate judgment, which the circuit court denied on November 24, 1980. The department and Black Diamond filed a joint notice of appeal to this court on January 5, 1981.

This court issued its opinion on July 22, 1981 and determined Morse was not eligible to receive unemployment compensation but that Pickett, Boyd, and Majors were eligible. See Davis v. Pickett, 412 So.2d 1225 (Ala.Civ.App.1981), cert. quashed, 412 So.2d 1230 (Ala.1982). This court further determined that the trial court’s award of compensation benefits to the employees was inconsistent with its finding that the employees had been laid off “in anticipation of an industry strike.” If the layoffs were due to a labor dispute in active progress, the employees were thus disqualified from receiving benefits. § 25-4-78(1), Code 1975.

This court, 437 So.2d 1303, then remanded the case so that the trial court could make findings of fact and conclusions of law that would be consistent with its judgment.

Black Diamond and the department sought review in the supreme court by way of certiorari. The writ was quashed, having been improvidently granted.

On remand to the trial court, another order was entered but not in accordance with the directive of this court. Subsequently, the trial court entered a judgment in which it found that employees Pickett, Boyd, and Majors had received their layoff notices on December 1, 1977 because of a lack of work and not because a labor dispute was in active progress at the time of the layoffs. Black Diamond and the department appeal this judgment.

The issue now is whether the trial court’s judgment holding that the appellees are not disqualified from receiving compensation benefits is supported by the evidence.

Our review of an unemployment compensation case is subject to the ore tenus rule.

“When an unemployment compensation case is heard orally before the court sitting without a jury, the court’s findings are presumed correct unless shown to be clearly contrary to the great weight of the evidence.”

Steele v. Carter, 390 So.2d 299 (Ala.Civ. App.1980). Moreover, in the case of Department of Industrial Relations v. Smith, 360 So.2d 726 (Ala.Civ.App.1978), we held that:

“[T]he Unemployment Compensation Act is in the nature of insurance for the unemployed worker and is intended to be a remedial measure for his benefit. It should be liberally construed in claimant’s favor and the disqualifications from benefits should be narrowly construed.”

Whether appellees are qualified to receive unemployment benefits hinges on the validity of the finding that their layoffs were not directly due to a labor dispute in active progress. See § 25-4-78(1), Code 1975. The only evidence of a labor dispute in progress on December 1, 1977 consisted of testimony that the existing industry contract would expire on December 6, 1977 and that negotiations were ongoing.

In the recent Alabama case of Ex parte Flowers, 435 So.2d 76 (Ala.1983), the supreme court held that:

“[T]he legislature did not intend that § 25-4-78(1) should act to disqualify employees given layoff notices from receipt of unemployment benefits where contract negotiations are ongoing. For us to so hold would give employers involved in the negotiations over union contracts the opportunity to use their economic position as a bargaining tool during the period prior to the expiration of the contract.”

The supreme court went on to say in the Flowers case that the layoffs, which were made prior to the strike, were due to. a shortage of work caused by an apprehension by the employer that a strike would lead to delays in the performance of work for its customers. Hence those employees laid off prior to the strike were laid off while negotiations were in active progress and their unemployment was not directly due to a labor dispute but to a shortage of work.

Likewise, in the case at bar, there is evidence that the direct cause of the layoffs of appellees was a shortage of work at Black Diamond caused by the curtailment of strip-mining operations at Burgess Mining and Construction Company, Black Diamond’s coal supplier, in anticipation of a strike when the union contract expired on December 6, 1977. The evidence shows that Burgess, in anticipation of a strike at the expiration of the contract, stopped mining operations, shipped all of the mined coal to Black Diamond, and winterized its equipment.

Black Diamond was advised by Burgess that it would not ship any more coal until the union contract negotiations were settled. Black Diamond washed all the coal it had on hand, winterized its equipment, and laid off its employees. All of this occurred prior to the expiration of the union contract and the commencement of the strike. Thus, under the Flowers court rationale, the layoffs were made while negotiations were ongoing and before the strike; therefore, appellees’ unemployment was not directly due to a labor dispute.

After a careful examination of the record, we are not convinced that the trial court’s finding that the appellees were laid off as a result of a lack of work and not a labor dispute is contrary to the great weight of the evidence. The trial court’s judgment that the appellees were not disqualified from receiving unemployment benefits is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Lynneice Taylor RUTLEDGE v. Polly CONRADI, Circuit Clerk.
    Civ. 4004.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1984.
    Rehearing Denied Feb. 15, 1984.
    Certiorari Denied April 27, 1984 Alabama Supreme Court 83-550.

      Grover S. McLeod, Birmingham, for appellant.
    L. Burton Barnes, III of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
   HOLMES, Judge.

This is a case involving the taxing of certain court posts.

The plaintiff, on July 27, 1983, received a jury verdict in her favor. On that same date a judgment was entered in favor of plaintiff for the amount of $7,619.50 and costs.

On the 29th day of July 1983, the plaintiff filed with the clerk of the circuit court a claim for costs in the amount of $352.55. These claimed costs were for certain depositions and “xeroxing.” A copy of the claimed costs was served on the defendant. On the same day, July 29, the circuit clerk issued a cost bill in the amount of $141.00.

Approximately two weeks thereafter, apparently on August 11, 1983, the plaintiff petitioned the circuit court for a writ of mandamus to the circuit clerk to require the clerk to include the claimed costs, $352.55, in the cost bill. Thereafter, the circuit court denied the plaintiff’s petition for mandamus. The plaintiff appeals that action and we affirm.

The plaintiff, through able counsel, who has favored this court with an excellent brief, contends the trial court erred in refusing to require the circuit clerk to include the referenced costs.

As indicated, we do not agree with the plaintiff’s contention for the following reasons.

It is clear to this court that the objection of the plaintiff is the clerk’s action in failing to include in the cost bill certain costs. Rule 54(d), Alabama Rules of Civil Procedure, provides, in this instance, the proper procedure to follow in objecting to the circuit clerk’s taxing of costs.

Rule 54(d), A.R.Civ.P., in pertinent part provides as follows: “Costs may be taxed by the clerk without notice. On motion served within five days of the receipt of notice of such taxation, the action of the clerk may be reviewed by the court.”

This rule without question provides that once the circuit clerk taxes costs a party desiring to review or question those costs should within five days upon the receipt of the notice of taxation of costs file a motion in the circuit court. The motion will then be considered by the circuit court and action taken thereon.

In this instance, the plaintiff failed to object to the clerk’s action within five days. In fact, no motion was ever filed with the circuit court. The plaintiff chose to pursue the instant action, i.e., mandamus, some thirteen days after notice of taxation costs. This action, the filing of the mandamus, in this instance, is not the proper procedure and hence the court committed no error in denying the writ of mandamus. See Fleet Investment Co. v. Rogers, 87 F.R.D. 537 (W.D.Okl.1978), aff'd, 620 F.2d 792 (10th Cir.1980).

In addition to the above, the following as stated by our supreme court in Ex parte Strickland, 401 So.2d 33 (Ala.1981), would appear to be appropriate in the instant appeal, even though it deals with the direct authority of a court.

“Mandamus and prohibition are extraordinary remedies and will not issue unless there is no other adequate remedy. Ex parte Locke, 346 So.2d 419 (Ala.1977). Mandamus is proper where there is a clear specific legal right shown for enforcement of which there is no other adequate remedy. Echols v. Housing Authority of Auburn, 377 So.2d 952 (Ala.1979). Prohibition is proper for the prevention of a usurpation or abuse of power where a judge or court undertakes to act in a manner in which he or it has no jurisdiction. Meeks v. Town of Hoover, 286 Ala. 373, 240 So.2d 125 (1970). The taxing of costs, however, is within the sound discretion of the trial court, Bukley v. Carroll, 366 So.2d 1094 (Ala. 1978), and will not be controlled by mandamus except in extraordinary cases for gross abuse of that discretion. Ex parte Driver, 258 Ala. 233, 62 So.2d 241 (1952).”

Id. at 35.

We would comment that we should not be understood as stating that the costs in question could not have been properly taxed as costs; we only find that under the instant facts the trial court did not err in refusing to issue the writ of mandamus.

The case is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J„ concur.


author: WRIGHT, Presiding Judge.

text:
    Mana Dianne FRANCO v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 4017.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1984.
    Rehearing Denied March 14, 1984.
    Certiorari Denied April 27, 1984 Alabama Supreme Court 83-629.

      Dianne James Davis, Alexander City, for appellant.
    Mary Lee Stapp, Asst. Atty. Gen., and John Percy Oliver, II of Oliver, Sims & Jones, Dadeville, for appellee.
   WRIGHT, Presiding Judge.

This is a termination of parental rights case.

On November 22, 1979, Mana Dianne Franco and her minor son, Michael, moved from California to Tallapoosa County, Alabama to live with Ms. Franco’s mother, Marilyn Frances Shaw. Ms. Franco, who had been divorced since 1977, was pregnant with another child, a daughter, April, who was born on April 3, 1980.

In January 1980, the Tallapoosa County Department of Pensions and Security (DPS) received a child abuse and neglect alert from the State of California concerning Ms. Franco’s loss of parental rights over another child, Jeffrey, in that state. The report stated that custody had been taken from Ms. Franco because she had been transient and had been living with several men in filthy conditions, subjecting Jeffrey to the use of drugs and alcohol.

Thereafter, DPS visited Ms. Franco at her mother’s home and later at a trailer where she had moved. On at least one occasion, the children were found to have the smell of urine about them. On other visits, the children were improperly dressed and dirty, and the trailer was unheated. DPS was also notified that Ms. Franco frequently spent the night out in night clubs, often leaving the children with less than desirable babysitters. On April 19, 1982, Mrs. Franco contacted DPS stating that her power had been turned off and requesting that the children be placed in foster care. At the time the children were picked up for placement, the trailer was extremely cold, the electricity was off and there were empty beer cans lying about. The children were improperly dressed for the cold. They were filthy and had a strong odor about them. They also had runny noses, and their lips and hands were blue from the cold.

On May 6, 1982, temporary custody was given DPS. Ms. Franco, shortly thereafter, entered into a contract with DPS whereby custody would be returned to her if she (1) obtained employment, (2) paid off her bills, (3) found a suitable home for six months, (4) kept in touch with the DPS social worker and (5) attended mental health. This last requirement was later dropped.

Subsequently, Ms. Franco moved to Birmingham, Alabama, where she lived with Jackie McClellan, an admitted drug dealer. The record indicates that Ms. Franco and Mr. McClellan were very transient, never living at one location for more than a few weeks. For a time, the record shows, they were living out of McClellan’s automobile. Between August 11, 1982, and July 12, 1983, Ms. Franco made, and later broke or cancelled, numerous appointments to visit with her children, claiming various reasons for the cancellations from no money to travel to Alexander City, to illness, to conflicts with her employer. She also went for long periods without any contact with either DPS or her children.

On July 21,1983, DPS petitioned for and, after an ore tenus hearing, was awarded permanent custody, thus terminating Ms. Franco’s parental rights. Ms. Franco appeals here, asserting that there was insufficient evidence to support the court’s decree and that there was no evidence presented establishing her present inability to care for her children. Before addressing these issues, we first must consider DPS's contention that this appeal should be dismissed for want of timely filing of a notice on appeal.

MOTION TO DISMISS APPEAL

The record indicates that the court heard this case in the Tallapoosa County Courthouse in Dadeville, Alabama, on September 21, 1983. Judgment was entered that day. Notice of appeal to this court was filed in the office of the clerk in Alexander City on October 5, 1983. The clerk received it and marked it filed within fourteen days of judgment.

DPS moved to dismiss because under local law venue of the case lay in Dadeville. Thus the notice of appeal was filed in the wrong place and was of no avail.

There are local laws setting venue of cases filed in Tallapoosa County. One such law is 1923 Alabama Acts 337, applying to circuit court. That law is not applicable to this case, as it arose in the Juvenile Court of Tallapoosa County. The applicable law to district court is 1967 Alabama Acts 48. That act established the Court of Common Pleas of Tallapoosa County, with jurisdiction, including juvenile, county-wide. However, the act provided that there were two divisions of the court, a Dadeville Division and an Alexander City Division. Each division encompassed a certain portion of the county according to designated beats. It provided that venue of all criminal and civil actions arising within its jurisdiction should be determined as if the divisions of the court were separate counties. (We find no reference in the act to a division of the venue of juvenile cases.) Section 12-12-36(a)(1), Code of Alabama 1975 authorized the continuation in the district courts-of local laws providing for venue in lesser geographic areas than county-wide. Thus the District Court of Tallapoosa County has two divisions as provided in Act 48. It is from these local acts as to venue that DPS claims ground for dismissal of this appeal.

It must be kept in mind that there is only one clerk of the District and Circuit Courts of Tallapoosa County. He or she serves all divisions. There is authority in the act for the transfer of cases from one division to the other division if filed in the wrong division. In this case, the notice was filed with the clerk of the District Court of Tallapoosa County. That clerk wears one hat no matter where he sits. The notice of appeal was accepted and filed by that clerk. We would think it not uncommon for the clerk, while in one division, to accept suits to be filed for trial in the other division. We find no complaint of failure of notice to DPS because of the filing. We consider this case analogous to that of Ex parte Higgins, 423 So.2d 227 (Ala.), on remand, 423 So.2d 229 (Ala.Civ.App.1982).

ON MERITS

As to the merits of Ms. Franco’s appeal, we find that the decision of the trial court is due to be affirmed. “[Tjermination of parental rights by the state should occur only upon strong proof of abuse and/or continuing neglect of the welfare of the child.” Glover v. Alabama Department of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981). However, we must be mindful that the controlling consideration in all cases involving child custody is the best interest of the child. Fitzgerald v. Jeter, 428 So.2d 84 (Ala.Civ.App.1983).

The trial court heard this matter ore tenus. We must give every favorable presumption to the trial court’s judgment. We will not reverse unless the judgment appears palpably wrong. Lovell v. Department of Pensions and Security, 356 So.2d 188 (Ala.Civ.App.1978); Fitzgerald, supra, at 85.

In the light of the evidence presented indicating Ms. Franco’s transient lifestyle, her association with known drug dealers, and her apparent lack of concern for the welfare of her children, we cannot say that the trial court abused its discretion in terminating her parental rights and awarding permanent custody of her two children to DPS.

AFFIRMED.

BRADLEY and HOLMlES, JJ., concur.


text:
    Coy J. McCRARY v. Sylvania Simmons McCRARY.
    Civ. 3965.
    Court of Civil Appeals of Alabama.
    Feb. 22, 1984.
    Rehearing Denied March 28, 1984.
    Ralph L. Armstrong, Bessemer, for appellant.
    R. Shan Paden of Paden, Green, Paden & Bivona, Bessemer, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this appeal were divorced by a decree of the Circuit Court of Jefferson County, Bessemer Division, on October 6, 1981. This decree was set aside and a new trial held on February 2, 1983.

A final judgment of divorce was rendered on May 3, 1983. In that decree the trial court disposed of the parties’ real and personal property and also awarded the wife $9,000 as alimony in gross with a lien on the marital home to assure its payment. Husband appeals, contending that the trial court erred by awarding wife alimony in gross. We find no error and affirm.

The evidence shows that husband and wife were married in July 1941. Four children were born of the marriage, all of whom are now adults. Husband and wife separated in the fall of 1980 and she filed the complaint for divorce in 1981.

Wife is sixty-two years of age and lives in a mobile home on some property she inherited in Marion County, Alabama. The wife has been working continuously since 1965. From 1965 to 1980 she worked at a church kindergarten. During that time she received a college degree and teaching certificate from Birmingham-Southern College. Wife is currently employed by the Fayette County Board of Education as a school teacher and nets $883 a month in income. If her salary remains the same, wife will receive $256 a month when she retires in eight years.

The record shows that wife handled the family finances and that since 1965 she has maintained separate checking and savings accounts from her husband. She stated that she would save money from the family finances and from her separate earnings and had done so over a period of years. Sometime in the mid-1970’s wife purchased some property in Florida without her husband’s knowledge and later sold the property. The proceeds from the sale of this property were used to improve property she owned in Marion County, Alabama.

Wife is joint owner with her ex-husband of some property in Mississippi and in Tuscaloosa County and six cemetery lots. She also owns property in Marion County, which she inherited. She owes the Win-field State Bank approximately $18,000.

Husband is sixty-four years old and lives in the parties’ homeplace in Pleasant Grove, Alabama, which has been appraised at $20,000. He was employed at United States Steel for thirty-three years but retired in September 1981. He receives an income of $613 per month retirement pay and $549 a month in social security benefits.

Husband testified he is indebted to various institutions and had to borrow money to pay his 1982 federal and state income tax. Besides the property above noted, husband owns the household furniture in the Pleasant Grove property, some tools, and a 1972 Chevrolet pickup truck. Neither husband nor wife suffers from any health disabilities.

The trial court, in addition to the $9,000 alimony in gross, awarded the wife the property she owned in Marion County, Alabama, the mobile home on that property, the personal property which she had in her possession, the 1977 Plymouth Volare, and three of the six cemetery lots owned by the parties. The wife was ordered to pay all of her debts.

The husband was awarded the marital home in Pleasant Grove, Alabama, all of the personal property then in his possession, which includes a 1972 Chevrolet pickup truck, and three of the six cemetery lots owned by the parties. The husband was also ordered to pay all of his debts.

The court ordered that the lot in Pasca-goula, Mississippi and the lot in Tuscaloosa County, Alabama owned by the parties be sold and the proceeds divided equally between them.

The trial court reserved the right to award periodic alimony in the future and awarded the wife a sum of money as an attorney’s fee.

Husband argues that the wife is employed and he is not, and that she is more financially secure than he is and, therefore, he should not be required to pay alimony in gross.

An award of alimony in gross is intended to effect a final termination of the property rights of the parties, and is an approximate appraisal of the present value of the wife’s future support, and, in a measure, a compensation for her loss of inchoate property rights in her husband’s estate. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (Ala.1974). An award of alimony in gross is a matter within the sound discretion of the trial court, Weeks v. Weeks, 373 So.2d 848 (Ala.Civ.App.1979), and an exercise of that discretion will not be overturned except for gross abuse. Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980).

The fruits of a forty-year marriage, both personal and real property, were divided between the parties with the husband receiving the marital home which was appraised at $20,000 and the wife receiving $9,000 as alimony in gross with a lien in the marital property to assure payment. We find no abuse of discretion and affirm the trial court’s decree.

Wife is awarded $350 as an attorney’s fee on appeal.

AFFIRMED.

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


text:
    Ruth ISBELL, William H. Isbell, Sherman Daniel McAbee v. Beverly Holland McABEE.
    Civ. 4072.
    Court of Civil Appeals of Alabama.
    March 14, 1984.

      T.J. Carnes of Carnes & Carnes, Albert-ville, for appellants.
    James D. Walker and F. Timothy Riley, Albertville, for appellee.
   HOLMES, Judge.

This is a divorce and child custody case.

After an ore tenus hearing, the trial court awarded custody of the couple’s one- and-one-half-year-old son to the mother. The father and the paternal grandparents, through able and distinguished counsel, appeal the award of custody to the mother. The father also appeals from the trial court’s action requiring him to pay child support and attorney fees.

The dispositive issue as to the award of custody is whether the trial court so abused its discretion as to require reversal. The issue regarding the child support and the award of attorney’s fees is whether the trial court erred in making the awards when no pleading raised that matter.

The facts are as follows: Dan McAbee and Beverly Holland married in January of 1982. At that time Dan was about nineteen years of age and Beverly was about sixteen. Beverly had a two- or three-year-old illegitimate daughter, named Brandy, had had two abortions, and was carrying a second child who was sired by Dan McA-bee. This child, Richard, was born June 25, 1982.

When they first married, the couple lived in a mobile home park where Dan was employed making about $160 a week. However, in December of 1982 or January of 1983, they moved to Vicksburg, Mississippi for six months, for Dan to take a $600-a-week job his father had secured for him. Dan worked on this job anywhere from sixty to eighty hours a week, turning over his paycheck every week to Beverly and leaving her alone with the children every morning at about five o’clock.

What Beverly did every day while left alone and whether she kept house, cooked, and cared for the children was vigorously disputed. According to Dan’s witnesses, Beverly watched television, read magazines, and smoked cigarettes every day and frequently entertained male callers who arrived as early as 8:30 a.m. There was testimony that Beverly smoked marijuana, drank beer, and had sexual relations with these callers. Beverly’s mother-in-law, Ruth McAbee Isbell, testified that during one trip to Mississippi she saw five or six different men visit Beverly. Dan also smoked marijuana and drank excessive amounts of beer when he came home from work.

Dan’s witnesses also testified that Beverly avoided house-cleaning and consistently neglected the children. There was testimony that there were always bugs on the walls and ceiling, that ashtrays were always full, that garbage cans overflowed with beer bottles, and that the shag carpet was littered with tiny items that the baby would put in his mouth. There was also evidence that although there was always a constant supply of beer and marijuana, the baby often had to go without milk or formula, that the children were given Ritz crackers and tea to eat for breakfast, that both children were constantly dirty, that the baby was allowed to wear dirty diapers for hours, and that he suffered from severe diaper rash, which his mother never attempted to treat, that Beverly twice attempted to treat the baby’s illnesses with “witchcraft,” that the baby was constantly allowed to play unsupervised, and that Beverly on several occasions gave the baby a bottle of watered-down beer to get him to sleep. There was also testimony that because of lack of attention, the baby had never learned to talk or even babble and that Beverly had once attempted to commit suicide by swallowing a bottle of tranquilizers.

When the job in Mississippi expired, the couple moved back to Alabama. Neighbors testified that almost daily the children played for hours unsupervised in the yard and in a plastic wading pool with only five-year-old Brandy there to pull her brother from out of the streets.

Beverly’s version of the facts differed sharply. According to her testimony, Dan is an unfit parent and only rarely cared for or paid attention to the children. She testified that she only gave the children crackers to hold them until she could fix them cereal, eggs and bacon, or toast and jelly, that she only let the children play outside for short periods of time and even then she watched them from the door or window, that she always changed the baby’s diapers immediately when she noticed they were soiled, and that she regularly applied ointment to combat diaper rash. She denied knowing five or six different men in Mississippi, and said the men only “called” upon her, and she testified that she often talked to and cuddled the baby and that he had begun learning to talk lately.

After separating from her husband, because he had supposedly beaten her and threatened her, Beverly moved back home with her mother in a three-bedroom house. She took a job approximately one week before the case came to trial; when Beverly has been at work, relatives have come over to watch the children.

Dan initiated this action by filing a complaint for divorce and a petition for custody or, at least, reasonable visitation rights. His parents, Ruth and William Isbell, intervened and alleged that neither Dan nor Beverly were fit parents and that they (the Isbells) should be awarded custody of the couple’s son.

After considering the evidence, the trial court entered an order divorcing the parties, setting child support at $150 per month, ordering the husband to pay $400 toward the wife’s attorney's fees, and awarding temporary custody of the son to Beverly. The following language from the court’s order is particularly important:

“The court is not at all pleased with the conduct of the plaintiff or the defendant; but, due to the age of the defendant herein, feels that it is in the best interest of the child, at least from a long-term consideration, that the defendant be given one plain and obvious opportunity to perform adequately as a mother. The court is of the opinion that the defendant-mother is a better risk than the plaintiff-father, and the court is not, at this time, convinced that the child should be taken from the custody of a natural parent.
“7. This cause is reset to review this order and the performance of the defendant as a parent to said child during the term of court scheduled for July 30, 1984, at the Albertville Courthouse at-9 a.m., at which time the parties may offer such additional evidence as they deem necessary and after such hearing, the court will make a regular order of custody in this cause.
“9. All parties hereto, while said child is in her or their care or supervision^] shall make sure that said child receives adequate moral instructions by example and otherwise.”

In reviewing an order of child custody issued after an ore terms hearing, this court will not set aside such exercise of discretion unless it is so contrary to the evidence as to be plainly and palpably wrong. Fassina v. Fassina, 401 So.2d 113 (Ala.Civ.App.1981). When the trial court has had to resolve conflicts in the facts testified to, this court may not reweigh the testimony and substitute its own judgment for that of the trial court. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

In a child custody case the paramount consideration is the best interest of the child. Reaves v. Reaves, 399 So.2d 311 (Ala.Civ.App.1981). While there is no longer a gender based presumption that a child of tender years belongs with his mother, the sex and age remain “very important considerations” in custody determinations. Ex parte Devine, 398 So.2d 686 (Ala.1981). Furthermore, when one of the parties to a custody battle is not a natural parent, a presumption arises against this person and in favor of the natural parent. See Ex parte Berryhill, 410 So.2d 416 (Ala.1982).

After having reviewed the record, this court can appreciate the dilemma the trial court faced. While it is questionable whether either of the child’s parents is adequate to serve as custodial parent, the trial court naturally was reluctant to award custody to a third party and thereby separate the sixteen-month-old child from both of his natural parents and his half-sister. In light of the evidence proffered by the mother and further that the mother had recently obtained a job and new home for her family, this court can find no abuse of discretion in the trial court’s decision to, in effect, grant her temporary custody and to give her, as the trial court indicated, one obvious opportunity to prove her adequateness as a parent. The trial court’s action in regard to custody is therefore due to be affirmed.

The father, as indicated, also contends that the trial court erred in requiring him to pay $150 per month as child support and an attorney’s fee of $400. The father bottoms this contention on the fact that there was no pleading requesting such relief.

We believe what this court stated in Tidwell v. Tidwell, 379 So.2d 614 (Ala.Civ.App. 1980), to be, in this instance, applicable to the award of attorney’s fees and dispositive of that issue.

We also find that language found in Tid-well to be appropriate on the issue of child support. In Tidwell, discussing an award of alimony in gross when no affirmative relief was requested, we stated that rule 15(b) and rule 54(c), Alabama Rules of Civil Procedure, eliminate the necessity of strict pleadings of issues tried expressly or with the implied consent of the parties.

In the instant case, while the evidence regarding the financial condition of the father and the needs of the child may, at best, be minimum, we find such evidence is sufficient to support the trial court’s action. Put another way, there was evidence of the husband’s past earnings, his present earnings, and clearly the child has needs. This evidence, coupled with an award of $150 per month, leads this court to the conclusion that the trial court’s action regarding child support is due to be affirmed. As Chief Justice Torbert stated in Ex parte Boley, 392 So.2d 840 (Ala.1981), in cases involving child support, courts are not bound by strict rules of pleading.

All of the above is particularly appropriate when considered with the following found in Creel v. Creel, 342 So.2d 793, 794 (Ala.Civ.App.1977):

“It is an axiom that having assumed jurisdiction a court of equity will settle all the equities between the parties. A court of equity delights in rendering full justice.... Rule 15(b) ARCP eliminates the necessity of strict pleading of issues tried expressly or with the implied consent of the parties.” (Citation omitted.)

All factors being considered, the mother’s request for attorney’s fees for representation on appeal is denied.

The trial court is due to be and is affirmed.

AFFIRMED.

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


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    ALABAMA STATE TENURE COMMISSION v. Frederick DUDLEY.
    Civ. 4118.
    Court of Civil Appeals of Alabama.
    March 21, 1984.

      Robert E. Paden of Paden, Green, Paden & Bivona, Bessemer, for appellant.
    William M. Dawson, Birmingham, for ap-pellee.
   BRADLEY, Judge.

Mr. Frederick Dudley is a tenured teacher. He has been in the Bessemer city school system for about twenty years. His most recent teaching assignment was in physical education at Abrams High School.

On May 19,1981 Mr. Dudley was notified by the board of education that he was being transferred to a social studies teaching position at Abrams High beginning with the 1981-1982 school year. Mr. Dudley requested a hearing and one was held. The board voted to transfer.

Mr. Dudley appealed this decision to the state tenure commission. On August 6, 1981 the tenure commission affirmed the decision of the board of education.

On August 17, 1981 Mr. Dudley filed a petition for the writ of mandamus in the Circuit Court of Jefferson County, Bessemer Division, to review the action of the commission.

After a hearing the circuit court set aside the decision of the tenure commission on the ground that the commission was not properly constituted and remanded the matter for a hearing by a properly constituted commission. The circuit court found that Dr. Edward Richardson was appointed to the commission in the fall of 1979 while serving as principal of Andalusia High School; that Dr. Richardson took a job as a professor at Auburn University at Montgomery on June 30, 1980; that the State Superintendent of Education was notified of the change in Dr. Richardson’s teaching position; that Dr. Richardson continued to serve on the tenure commission until November 1981; and that Dr. Richardson participated in the hearing and decision on the appeal of Frederick Dudley. The tenure commission appeals to this court.

The commission’s first contention is that the circuit court exceeded its authority or jurisdiction in considering and deciding that the tenure commission was improperly constituted and, therefore, unable to decide Dudley’s appeal. The commission argues that the circuit court’s power to review the transfer of a tenured teacher is limited by section 16-24-38, Code 1975, to whether there has been a compliance with the provisions of chapter 24 of section 16, Code 1975, and whether the transfer is unjust.

Section 16-24-38, Code 1975, does provide, in part, as follows:

“Whether such action complies with the provisions of this chapter and whether such action is unjust may be reviewed by petition for mandamus filed in the circuit court of the county where said school system is located.”

Section 16-24-31, Code 1975, which is a part of chapter 24 referred to in section 16-24-38, provides for the appointment of the members of the tenure commission. Therefore, a consideration of the makeup of the commission as provided by section 16-24-31 would be within the authority granted by section 16-24-38 to the circuit court. In other words, the circuit court’s review power includes the authority to determine if the tenure commission has complied with all the provisions of chapter 24. Accordingly, we hold that the circuit court had the authority to determine whether the tenure commission was properly constituted as provided by section 16-24-31, Code 1975.

The next issue is whether the circuit court erred in concluding that the tenure commission was improperly constituted.

Section 16-24-31, Code 1975, provides, in part, as follows:

“[A]nd one member, who shall be currently employed as a certified principal or certified supervisor, shall be appointed by the state superintendent of education for a term of one year. During the 30 days immediately preceding the expiration of the respective terms of the members of the state tenure commission, each appointing authority designated herein shall appoint a successor member of the commission as provided herein for a term of seven years. Any provision to the contrary notwithstanding, however, each member of the commission shall serve until his successor is appointed. Any vacancy occurring on the commission shall be filled by appointment for the unexpired term in the same manner as the original appointment was made.”

As noted, one of the members of the commission must be currently employed as a principal or supervisor. The circuit court found that Dr. Richardson was not a principal at the time the commission decided Dudley’s appeal and, therefore, he improperly participated in its decision. Since Dr. Richardson was not a valid member of the commission, Mr. Dudley contends that the commission was improperly constituted and the commission thereby exceeded its authority. We disagree.

After providing for the appointment of the members of the commission, section 16-24-31 also provides: “Any provision to the contrary notwithstanding, however, each member of the commission shall serve until his successor is appointed.”

We conclude that this provision in section 16-24-31 allows members of the commission whose terms have ended for whatever reason to remain as valid members of the commission until their successors are duly appointed. We find this to be the plain meaning of this section of the statute.

It is the accepted rule in Alabama that when the language of a statute is clear and unambiguous there is no room for judicial construction. Employees’ Retirement System v. Head, 369 So.2d 1227 (Ala.1979).

Although Dr. Richardson’s status had changed at the time he participated in the hearing of Dudley’s appeal, he was nevertheless a full-fledged member of the commission with the right to participate in its proceedings because his successor had not been appointed. We conclude, therefore, that the circuit court erred in setting aside the tenure commission’s decision on the ground that it was not properly constituted. The judgment of the circuit court is reversed and the cause remanded for the circuit court to consider whether the other procedural provisions of chapter 24 have been complied with and whether the decision of the tenure commission is unjust. § 16-24-38, Code 1975; Alabama State Tenure Commission v. Mountain Brook Board of Education, 343 So.2d 522 (Ala. 1976).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


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    Stanley K. LOCHRIDGE v. Jane W. LOCHRIDGE.
    Civ. 4002.
    Court of Civil Appeals of Alabama.
    March 28, 1984.

      Sheldon Perhacs, Birmingham, for appellant.
    Charles J. Najjar and J. Gary Pate of Najjar, Najjar, Boyd & Pate, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case. On September 13, 1983 the parties to this appeal were divorced by a decree of the Circuit Court of Jefferson County. As a part of that decree husband was ordered to pay wife $5,000 per month as periodic alimony and an attorney’s fee of $35,000.

Husband appeals and argues here that the trial court abused its discretion in the award of periodic alimony and attorney’s fees. We find no abuse and affirm.

Without relating the evidence in detail, the record shows that the parties were married in 1968 when husband was a freshman in medical school. The husband is now thirty-six years of age, a thoracic surgeon, and in good health. The wife is thirty-five years of age, unemployed, and her health is questionable.

Although husband obtained scholarships and loans and worked to pay the expenses of his medical education, the wife also worked during a large portion of the time husband was receiving his medical training and contributed most of her earnings to the payment of the parties’ living expenses and to some of husband’s educational expenses.

The record shows that the husband’s income in 1982 was about $483,000. The wife has not been employed since 1978. She was employed at that time as a scrub nurse at the University of Iowa Hospital where her husband was in training in cardiovascular surgery. Wife is presently engaged in obtaining her master’s degree in nursing.

The parties’ fifteen year marriage has been filled with discord, especially since 1972. Husband and wife have separated several times and then have been reconciled. The separations were usually precipitated by the husband’s affairs with other women.

The husband had a girl friend at the time of the hearing that he had been seeing for about two years. He had given his paramour gifts and sizeable sums of money, as well as taking her on several trips with him.

Husband’s first contention is that the award of periodic alimony was an abuse of the trial court’s discretion. We disagree.

In divorce actions the awarding of alimony and attorney’s fees is a matter within the sound discretion of the trial court, and a judgment will not be disturbed unless there is an abuse of that discretion. Hinds v. Hinds, 415 So.2d 1122 (Ala.Civ. App.1982). In determining whether to award alimony and, if so, how much, the criteria to be considered by the trial court include the earning ability of the parties, their future prospects, their age, health, station in life, the duration of the marriage, their accustomed standard of living, the source, value and type of property, and the conduct of the parties as it relates to the divorce. Morgan v. Morgan, 402 So.2d 984 (Ala.Civ.App.1981); Elsevier v. Elsevier, 355 So.2d 382 (Ala.Civ.App.1978). Also, the decision to award periodic alimony or to refuse such alimony depends upon the relevant facts in each case. Hall v. Hall, 382 So.2d 1139 (Ala.Civ.App.1980).

In the instant case the facts show that the parties have been married fifteen years and for at least the first five of those years wife was working and produced income for the family. The husband is a physician and, from a financial standpoint, his future looks very bright. In 1982 husband’s gross income was approximately $483,000. The wife is pursuing a degree and is presently unemployed. Even if wife does secure suitable employment, it is highly unlikely that she will ever be able to earn as much as husband does. Husband is in good health and wife is in questionable health. The parties enjoyed a very comfortable standard of living, and it is logical to assume that the wife has grown accustomed to such affluence. Moreover, there was evidence that husband has committed adultery numerous times over the course of the marriage.

Therefore, applying the above guidelines to the facts of the present case, we do not find that the trial court abused its discretion in awarding periodic alimony to the wife, nor in the amount of the award.

Husband’s final contention is that the trial court’s award of $35,000 attorney’s fees is excessive and, therefore, an abuse of discretion.

Allowance of attorney’s fees rests in the sound discretion of the trial court, and its judgment will not be reversed except for an abuse of that discretion. Hinds v. Hinds, supra; Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107 (Ala.Civ.App. 1974). In arriving at the value of legal services performed in a divorce action, the trial court may properly consider the following: (1) the nature and value of the subject matter of employment; (2) the learning, skill, and labor necessary to the proper discharge of that employment; (3) the time consumed on the matter in dispute; (4) the professional ability, experience, and reputation of the attorney performing the services; (5) the weight of his responsibility; (6) the measure of success achieved; (7) any reasonable expenses incurred in the representation of a client; and (8) the fee customarily charged in the locality for similar services. Rosser v. Rosser, 355 So.2d 717 (Ala.Civ.App.1977). Moreover, the trial court in determining a reasonable attorney’s fee may rely on opinion evidence of experts on the subject of fees, and on its own knowledge and experience as to the value of the services performed. Burgess v. Burgess, supra. Likewise, the earning capacity of the parties and the financial circumstances of the husband may also be considered in establishing the amount of money to which an attorney is entitled for his services. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254 (Ala.Civ.App.1974).

After a careful examination of the record before us, we find that there were three attorneys who assisted in the preparation of wife’s case. Between the three of them, over one hundred twenty-four hours were spent on pleadings, motions, depositions, and conferences. In addition, experts had to be hired, there were court costs of $1,100, three days were spent in trial, and there was a large estate involved. One of the attorneys has been practicing law for over twenty-six years, and is a past president of the Birmingham Bar Association. All three of wife’s counsel were highly respected members of the Alabama Bar, were qualified to represent her interests, and were fully aware of their responsibilities. Moreover, there was expert testimony that the reasonable value of services rendered by wife’s lawyers would be between $15,000 and $50,000. These facts, when viewed in conjunction with the trial court’s experience and knowledge as to a reasonable attorney’s fee, lead us to the conclusion that there is no abuse of discretion in the trial court’s award.

Therefore, having found no error in either the award of alimony or attorney’s fees, we affirm the trial court’s decree.

AFFIRMED.

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


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    Lynn Pearson SMITH v. Michael Warren SMITH.
    Civ. 4012.
    Court of Civil Appeals of Alabama.
    March 28, 1984.

      Samuel Maples and Douglas Corretti of Corretti & Newsom, Birmingham, for appellant.
    Rodney A. Max of Denaburg, Schoel, Meyerson, Ogle, Zarzaur & Max, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

Michael Warren Smith, father, and Lynn Pearson Smith, mother, were married June 15, 1974. Two children were born of this marriage, a son, Brian, aged five and a daughter, Erica, aged two and one-half years. At the time of the trial, the father was employed and earning an annual salary of $48,000 plus an additional bonus of several thousand dollars each year. The mother was employed, earning $22,400 annually.

The mother filed for divorce on January 19, 1983, on grounds of incompatibility and irretrievable breakdown of marriage, seeking custody of the minor children, alimony, division of the marital estate, and attorney’s fees.

After trial a final judgment of divorce was entered, awarding custody of the children to the father. The court ordered that the father be awarded the use and occupancy of the marital residence pending a sale, all household furniture and furnishings except den furniture, and a sailboat. The mother was awarded a 1982 Buick, den furniture, AT & T stock, a sunfish sailboat, $5,000 alimony in gross and $3,000 in attorney’s fees. Each party was awarded their respective personal belongings. The mother appeals.

On appeal the mother contends the trial court committed reversible error in awarding custody of the minor children to the father and in the division of marital property-

The trial court’s determination of custody is clothed with a presumption of correctness following an ore tenus hearing; therefore we cannot reverse such decision unless there is palpable error or abuse of the trial court’s sound discretion. Lowery v. Lowery, 391 So.2d 120 (Ala.Civ.App. 1980). We may not substitute our judgment for that of the trial court. Dismukes v. Dismukes, 376 So.2d 730 (Ala.Civ.App. 1979).

The mother contends the court’s decision to deny her custody of the children was based on evidence indicating the mother acted indiscreetly on occasion, rather than a consideration of what was actually in the children’s best interest. She submits that she provided the primary care for the children during most of their lives and that the father only recently assumed more responsibility for their care.

While it is true that the moral misconduct of a parent sufficient to deny custody of children must be such as to have a direct bearing upon the welfare of the child, there is no conclusive indication that the trial court denied the mother custody here for that reason alone. Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. denied, 294 Ala. 757, 316 So.2d 214 (1975). A parent will not be denied custody for every act of indiscretion. Monk v. Monk, 386 So.2d 753 (Ala.Civ.App.), cert. denied, 386 So.2d 756 (Ala.1980).

The evidence tended to show that the mother had been primarily responsible for feeding, clothing and earing for her children. The evidence further disclosed that both parents loved the children and contributed to their education, religious, and recreational needs. The record also indicated that though the mother did not neglect the children nor love them less, the father had increasingly become involved directly with caring for them, as the mother’s need for her personal growth and independence became increasingly apparent. There was evidence tending to show that the mother had, since the filing of the divorce and immediately prior thereto, begun a course of conduct indicating primary concern with her own pleasure. While she went out to bars with fellow employees, both male and female, after work, the father worked less on his job and more at home with the children. There were clandestine liaisons by the mother with a male fellow employee at motels and in an automobile in the parking lot of the Birmingham zoo. From the descriptions of an observer on these occasions, acts of immorality were reasonably inferable. While the mother was involved in such events, the father was attending the children. The perception of the character of the mother was not improved by the first denial of these acts, with a subsequent admission of their truth.

It must be stated that there was evidence of a close personal relationship of the father with a female employee. However, the mother had been aware of that relationship for some time prior to the separation. There is no indication that it was a factor in the breakdown of the marriage.

It must be recognized that the mother is no longer given the legal presumption of primary right to custody of even small children in event of divorce. Devine v. Devine, 398 So.2d 684 (Ala.Civ. App.), cert. denied, 398 So.2d 686 (Ala. 1980). The polestar in custody matters now is truly the best interest of the child. The one first charged with following that star is the trial judge. He or she is the one closest to the scene and the protector of the children until they become adults. That responsibility is awesome and must weigh heavily upon the bearer. It is in recognition of that burden, that our appellate courts presume that the trial judge, who observed the parties and heard the testimony of the witnesses, correctly discharged his responsibility. In only the instance of clear and palpable abuse of the discretion granted, should a reviewing court on appeal disturb the judgment of the trial judge. Nesmith v. Nesmith, 419 So.2d 247 (Ala.Civ.App.1982).

The same presumption of correctness attends the judgment for division of property- Coffelt v. Coffelt, 390 So.2d 652 (Ala. Civ.App.1980). In our view of the record and the liberal right of visitation granted the mother, we find no ground for reversing the award of custody of the children. Neither do we find error in any other part of the judgment.

The parties’ respective requests for attorneys fees on appeal are denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    STATE OF ALABAMA HIGHWAY DEPARTMENT v. Joe E. NEWTON, Circuit Clerk of 34th Judicial Circuit, et al.
    Civ. 4068.
    Court of Civil Appeals of Alabama.
    March 28, 1984.
    Roger H. Bedford, Jr. and Bob Rogers of Bedford, Bedford & Rogers, Russellville, for appellant.
    Eddie Beason of Fine & Associates, Rus-sellville, for appellees.
   WRIGHT, Presiding Judge.

This suit for declaratory judgment is ancillary to a prior condemnation action brought by the Alabama State Highway Department (Department). The petition sought a declaration as to the correctness of distribution by the Circuit Clerk of Franklin County, Alabama, of monies derived from the conclusion of the condemnation.

The facts were stipulated. As pertinent, the facts are as follows: Pursuant to an action for condemnation by Department, a judgment was entered in the Probate Court of Franklin County condemning the property and awarding landowners as compensation the sum of $115,000. That sum, with costs, was paid into court by Department. Appeal was taken to circuit court by the landowners. The funds were transferred by the probate court to the circuit clerk. Landowners withdrew from the funds the sum of $56,630.00, as was their legal right. Department requested investment of the remaining funds. They were invested by the circuit clerk in an interest-bearing account.

Approximately one year later, the case was tried before a jury. Verdict was for $130,000.00. The court added interest at six percent for a judgment of $136,698.90. Department promptly paid into court the sum of $21,001.76, representing the excess over the amount previously deposited. That amount was promptly added to the money previously invested.

After denial of post-trial motions and expiration of time for appeal, the clerk disbursed $88,670.83, the amount then on deposit. Of the total, $80,068.90 represented the remainder of the judgment of $136,-698.90 after the withdrawal by the landowners of $56,630.00. The remainder of the total represented the return on the funds invested by the clerk. The disbursement by the clerk was $83,648.96 to the landowners or $3,580.06 more than the remaining amount of the judgment. The amount of $5,021.87 was disbursed to the Department.

It is the contention of the Department that it was due all of the return on the invested funds because it constituted interest on the judgment and it was error to give any of the benefits of the investment to the landowners. The basis of the contention is that the statutory provision for payment of interest on money judgments to the prevailing parties in law suits expressed in § 8-8-10, Code of Alabama 1975, does not apply in actions for condemnation of land by the State.

This court and the landowners agree that § 8-8-10 does not apply in this case. It has been held by our supreme court that absent legislative authority, condemnees are not entitled to interest on a judgment of condemnation even though the condemn- or has taken possession and continues in possession during an appeal. State v. Le-Croy, 279 Ala. 428, 186 So.2d 142 (1966); Southern Electric Generating Co. v. Lance, 269 Ala. 25, 110 So.2d 627 (1959). A specific statutory exception to the rule is in highway condemnations when the State takes the appeal from an award of damages which is subsequently affirmed on appeal to the appropriate appellate court. § 18-1-27, Code of Alabama 1975. That exception has no application in this case.

Why, then, was it not error to pay to the landowners money earned as interest from the investment of the money paid by the State into court? The answer is simply that money received by the clerk from interest paid upon the investment of the funds paid into court in response to judgment does not constitute a payment of interest .by the State. The supreme court said in the ease of State v. Jefferson County Board of Education, 282 Ala. 303, 309, 211 So.2d 146, 151 (1968):

“While we agree with the State that the trial judge cannot add interest to a condemnation award, State v. Jones, 271 Ala. 227, 123 So.2d 107, we do not agree that that is the case here. In the instant case, the interest to be apportioned is not interest on the jury award but interest on the Probate award which was invested. We can find no reason to overturn the trial judge’s order apportioning the interest on the Probate award.”

It may be concluded that the State, in receiving $5,021.87 from the investment, received a windfall. Landowners have not complained here. In any case, it was not error for the court to sustain the distribution by the clerk. Landowners received funds to which they were legally entitled.

AFFIRMED.

BRADLEY and HOLMES, JJi, concur.

      . It is an anomaly that in spite of the correctness of the Department’s argument here (the State is due to pay no interest on judgments of condemnation), it nevertheless paid into circuit court $6,698.90 as interest upon the verdict of the jury. It apparently did so without objection or appeal.


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    Ex parte GTE AUTOMATIC ELECTRIC, INC. (Re WEBCO TOOL AND DIE, INC. v. GTE AUTOMATIC ELECTRIC, INC.)
    Civ. 4154.
    Court of Civil Appeals of Alabama.
    March 28, 1984.

      Charles E. Richardson of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.
    John T. Robertson of Henslee & Bradley, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is a petition for a writ of mandamus directed to the Honorable Donald W. Stewart of the Circuit Court of Etowah County, Alabama. Petitioner seeks to have Judge Stewart’s order denying its motion to dismiss vacated or in the alternative to transfer venue to Madison County, Alabama. The writ is denied.

Webco Tool and Die, Inc., plaintiff, sued GTE Automatic Electric, Inc., defendant-petitioner, alleging that GTE owed Webco $9,693.50 for work and labor done, by open account, and on an account stated. GTE moved that the court dismiss the complaint or in the alternative transfer the case to Madison County. The motion averred that venue in Etowah County was improper because GTE did not do business by agent in that county, neither at the time the complaint was filed nor at the time the cause of action allegedly arose.

“The scope of our review of a venue determination by a writ of mandamus is to ‘determine whether judgment or discretion of the lower court has been abused and exercised in an arbitrary and capricious manner.’ ” Ex parte Jim Skinner Ford, Inc., 435 So.2d 1235, 1236 (Ala.1983), quoting, Ex parte Wilson, 408 So.2d 94, (Ala. 1981). A writ of mandamus is not properly granted unless it is clearly shown that the trial court erred to the injury of the petitioner. Id. at 1237.

Ala. Const, art. XII, § 232, and § 6-3-7, Code of Alabama 1975, provide that a foreign corporation, qualified to do business in Alabama may be sued in any county in which it is doing business by agent at the time the suit is filed. See also, Ex parte McGugin, 423 So.2d 1367 (Ala.1982). To come within the definitional parameters of “doing business” in a county does not require that a business maintain an office in that county. See, Liberty Life Assurance Society v. Woodard, 219 Ala. 24, 121 So. 30 (1929). Past “isolated transactions” are inconclusive in establishing that a corporation “does business” in a particular county for purposes of venue. Ex parte Harrington Manufacturing Co., 414 So.2d 74 (Ala.1982). All that is required is that GTE “performed some of the business functions for which it was created in the county with some degree of regularity.” Ex parte Jim Skinner Ford, Inc., supra, at 1237.

Webco, a tool and die manufacturer, has done business with GTE for over twelve years, making piece parts inter alia for GTE. During this twelve-year period, agents of GTE visited Webco’s plant at least twice a month where they would work with Webco’s employees, assist Webco’s engineers and discuss the business relationship between Webco and GTE. GTE frequently sent representatives to Webco’s plant to assist in resolving casting problems that arose with new products. GTE’s plant manager, superintendent and purchasing agent all made annual inspection tours of Webco.

GTE supplied Webco with certain tools and equipment necessary for manufacturing the parts ordered by GTE. The tools and equipment were maintained and stored at Webco for the purpose of filling orders by GTE as they came in. GTE frequently supplied Webco with the necessary raw materials to make the ordered parts. The president and general manager of Webco testified in deposition that over $2,600,000 worth of such business was done between Webco and GTE. In light of such evidence the trial court was not unreasonable in finding that GTE did business in Etowah County.

Without conceding that GTE had done business in Etowah County, GTE argues that no relationship at all existed between GTE and Webco at the time suit was filed. GTE insists that Webco’s “ ‘understanding’ that GTE would continue to order the piece parts or other equipment from it at a price, quantity, quality and delivery date to be determined at some time in the future, cannot constitute GTE’s doing business in Etowah County at the time suit was filed.”

Apparently the type of contractual relationship existing between GTE and Webco was an open account. Webco’s president described the relationship as follows:

“Webco was requested by GTE to ‘gear up’ to handle their orders, and ... that such orders would be placed until the piece parts either became obsolete or were no longer in use. This agreement and the agreements that are being sued on in this case were still in effect at the time this suit was filed in Etowah County. I had received no notice, whatsoever, from anyone, that any of those agreements had been repudiated, terminated or revoked. I was only aware that there was a dispute over the payment of the invoices that I have sued upon.”

GTE seems to argue that because it placed no further orders with Webco and did not send any more agents to Webco one day prior to filing suit, the contractual relationship ceased to exist. The Alabama Supreme Court stated:

“This court cannot adopt a policy that would allow a foreign corporation qualified to do business in Alabama, upon the occurrence of any problem which might arise during performance of a contract, to remove all of its agents from that county and thereby force a person injured or damaged to sue the corporation in the county of the corporation’s choosing. The traditional notions of fair play prevent a determination which would create such an injustice, especially when the claim of injury arises out of the business done in the county.”

Ex parte McGugin, supra at 1370. Because GTE has placed no orders since the suit was filed does not mean the business relationship was terminated making venue in Etowah County improper.

We , do not find that the trial court abused its discretion or acted arbitrarily and capriciously, and there is no clear showing of error to GTE’s prejudice, therefore the writ of mandamus is denied.

WRIT DENIED.

BRADLEY and HOLMES, JJ., concur.


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    Franklin D. LOWERY v. CITY OF MOBILE POLICE DEPARTMENT and the Mobile County Personnel Board.
    Civ. 4211.
    Court of Civil Appeals of Alabama.
    March 28, 1984.
    Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
    Mylan R. Engel, Mobile, for appellee Mobile County Personnel Bd.
    William R. Lauten, Mobile, for appellee City of Mobile.
   WRIGHT, Presiding Judge.

This is an appeal of a termination of employment.

At approximately 2:00 A.M. on September 20, 1982, Mark D. Brown, a nineteen-year-old student at the University of South Alabama, was returning home from a fraternity meeting when he was stopped by a Mobile police officer. Brown had been observed driving in an erratic manner and when stopped appeared to be intoxicated. Because Brown was acting arrogant and uncooperative, the officer called for assistance. He-also contacted Brown’s parents, intending to let them take the young man home rather than booking him for driving under the influence. Upon his parents’ arrival at the scene, Brown, who at that time was in the back seat of the police car, became very unruly and began cursing and striking the doors and windows of the car. He was then arrested for disorderly conduct and taken to the police station for booking.

Upon arrival at the station, Brown was taken to the docket room where his personal property was to be taken from him and where he was to be booked. Franklin D. Lowery, a police officer of five years, six feet, six inches tall, weighing 300 pounds, who was on duty in the docket room, instructed Brown to place his hands atop the docket room counter. Lowery then began taking Brown’s personal property and searching him for weapons. Brown, by all eyewitness accounts, continued to be argumentative and somewhat disorderly. Consequently, Sergeant William Lundy, who was in charge of the docket room that evening, ordered Lowery to take Brown directly to jail without completion of the usual booking process. Lowery told Brown to go down the hall toward the jail, at which time Brown again became argumentative, grabbing the metal screen of the booking room area and demanding that the money taken from him be counted in his presence. At this point, it is alleged that Lowery struck Brown, an incident which is the subject of this appeal. After the alleged blow, Lowery led Brown away to jail. Thereafter, Lundy reprimanded Lowery, informing him that, should he again strike a prisoner, he would be suspended without pay. That same night, Lundy filed an incident report recommending that an oral reprimand stand as the proper discipline for Lowery’s actions.

Subsequently, Brown, believing that a portion of his money had been stolen from him when he was booked, filed” a complaint with the police department. Whereupon, personnel from the internal affairs division along with Lowery’s supervisor, Sergeant Lundy, reviewed a videotape of the incident in question in order to determine if a theft of Brown’s property had occurred. No misappropriation of Brown’s property was revealed. However, upon reviewing the videotape, Lundy determined that Lowery’s conduct had been much worse than he originally realized and changed his incident report to state that Lowery had assaulted Brown. The later report also recommended Lowery’s dismissal. Upon viewing the tape, Lundy’s superiors in the police department agreed with his recommendation. Lowery was given notice of the recommendation and a pre-termination hearing. The hearing concluded with Lowery’s dismissal. Lowery appealed to the Mobile County Personnel Board. The board, after taking testimony and viewing the videotape of the incident entered a written order affirming Lowery’s dismissal.

Pursuant to 1939 Ala.Acts 470, § 34, Lowery appealed to the Circuit Court of Mobile County. The transcript of the personnel board’s hearing was certified to the circuit court. The circuit court entered an order finding substantial evidence to support Lowery’s dismissal and affirmed the personnel board’s decision.

Lowery appeals, asserting there was insufficient evidence to support the personnel board’s findings and the circuit court’s af-firmance.

The only issue before us is factual — that being whether Lowery used excessive force against Mark D. Brown so as to warrant his dismissal. A brief review of the testimony before the personnel board is in order. Lowery stated that, in an attempt to remove Brown’s hands from the cage, he struck Brown’s right arm with the upper part of his right forearm. At which point, Lowery states, Brown’s hand flew up near Brown’s face and in officer Lowery’s direction. Lowery, according to his own testimony, then slapped Brown’s hand with his open hand, causing Brown’s hand to strike Brown in the face. Lowery’s account of the incident was supported by three other officers who were present at the time.

Brown stated that Lowery forearmed him in the neck causing a bruise. Lundy, having been the only other eyewitness and having subsequently reviewed the videotape, testified that Lowery “knocked Brown away from the screen and then struck him in the face.” Lieutenant A1 Walther, Lundy’s immediate supervisor, after viewing the tape, concluded that what took place was a clear violation of the law and an improper use of force. Major Robert Larison, the officer in charge of the Mobile Police Department’s Central Services Bureau, testified, after viewing the tape, that Lowery’s actions were not in keeping with proper police department procedure, were disgusting,, revolting, uncalled for, brutal, and that they amounted to bully tactics.

After viewing the tape, the personnel board agreed with Lundy, Walther and Larison. The board concluded that Brown had indeed been “struck in the face and about the head.”

In cases of this nature, the circuit court’s review is limited to the record made before the personnel board and questions of law presented. Guthrie v. Civil Service Board of City of Jasper, 342 So.2d 372 (Ala.Civ.App.1977). This court’s review is also based on a review of the record before the personnel board. We look only to see if its findings are supported by substantial evidence. Guthrie, supra. We find that the decision of the Mobile County Personnel Board was so supported.

Our viewing of the videotape shows that, in addition to striking Brown’s hand in order to remove it from the cage, Lowery also used the palm of his right hand in a stiff-arm or straight-arm motion to strike Brown in the face. Considering the testimony of Lowery’s superiors that such force was unnecessary and a breach of police department policy, we find there was substantial evidence to warrant Lowery’s dismissal. Therefore, we find no error in the ruling of the personnel board nor in the circuit court’s affirmance thereof.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Brown later admitted to having consumed approximately eight beers in the eight-hour period prior to his arrest.

      . The record shows that a videotape camera is installed in the booking area to record the confiscation of a suspect’s valuables in order to insure that none are absconded with. This system protects both suspects and police personnel alike. The evidence also shows that Lowery activated the camera just prior to the incident in question and that he was aware that the camera was running at the time he allegedly struck Brown.


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    John M. DOGGETT v. Dorothy Faye DOGGETT.
    Civ. 4077.
    Court of Civil Appeals of Alabama.
    March 28, 1984.

      Thomas A. Deas, Mobile, for appellant.
    A1 Seale and Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for appellee.
   HOLMES, Judge.

This is a child support modification and child support arrearage case.

The trial court refused to modify the amount of child support and found the father was in arrears in his child support payments.

The father, through able counsel, appeals, contending the trial court erred in refusing to modify the amount of child support and in failing to give the father certain “credits” in determining the amount of arrearage.

While the record before this court is not a paragon of clarity, it is clear that, prior to entry of the original order appealed from, testimony was presented to the trial court. The trial court’s order states in pertinent part the following:

“This cause coming on to be heard this day on pending matters before the Court; both parties being present and represented by counsel; and from the sworn testimony and demeanor of the parties, and upon consideration, it is hereby ORDERED by the Court as follows:
“1. THAT the motion to terminate child support and- other relief as filed by the above Defendant is hereby denied.
“2. THAT the child support payments heretofore ordered by the Court in the amount of $100.00 each week are hereby reaffirmed, and that said weekly payments shall continue to be paid through the Office of the Accounts Clerk of this Court plus the necessary commissions.” (Emphasis supplied).

There was no transcription of this testimony and/or such testimony is not contained in the record before this court. Neither is there a record before this court pursuant to Rule 10(d), Alabama Rules of Appellate Procedure.

In view of the above, we have no alternative but to affirm the trial court’s action. See Davenport v. Davenport, 356 So.2d 205 (Ala.Civ.App.1978); Ala.Digest, Divorce, Key No. 312.5.

Needless to say, we are aware that certain testimony was taken on the father’s motion to reconsider and this testimony is contained in the record. However, this does not alter the fact that this court has no alternative but to refuse to disturb the trial court’s action. Davenport, at 205.

In deference to able counsel for the father and it being the policy of this court to reach the merits of an appeal whenever possible, the following is noted.

The father’s basic contention regarding the trial court’s refusing to modify the amount of child support is as follows:

The divorce decree required the father to pay $100 per week for the support of three minor children. At the time of the modification proceeding two of the children had reached majority. Hence, the father contends that the trial court erred in refusing to modify the amount of child support.

It is axiomatic that modification or non-modification of an award of child support will not be reversed unless it is clearly an abuse of discretion. Taylor v. Taylor, 418 So.2d 148 (Ala.Civ.App.1982).

In this instance, the record indicates the father’s income had more than doubled since the divorce decree. Furthermore, what this court stated in Roberts v. Roberts, 357 So.2d 150 (Ala.Civ.App.1977), writ quashed, 357 So.2d 154 (Ala.1978), would appear to be appropriate. Hence, no apparent error.

The father’s other contention is that the trial court erred in failing to give credit for child support for certain periods. We find what this court stated in Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982); McDaniel v. Winter, 412 So.2d 282 (Ala. Civ.App.1982); and Sutton v. Sutton, 359 So.2d 392 (Ala.Civ.App.1978), to be appropriate. Hence, no apparent error.

The mother has requested an attorney’s fee for representation on appeal. A fee of $350 is hereby awarded.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J„ concur.


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    Cecilia MELTON v. STATE DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 4067.
    Court of Civil Appeals of Alabama.
    April 4, 1984.

      Curtis C. Reding, Montgomery, for appellant.
    Mary Lee Stapp and John Coleman Campbell, Asst. Attys. Gen., for appellee.
    Palmer Smith Lehman, Capell, Howard, Knabe & Cobbs, Montgomery, guardian ad litem.
   WRIGHT, Presiding Judge.

This is a termination of parental rights case.

In March 1977 the Tallapoosa County Department of Pensions and Security (DPS) received a child abuse and neglect report concerning Juanita Melton, the five-month-old daughter of Cecilia and Harold Melton. The report indicated that for three days prior thereto, Mr. Melton had been walking up and down the road with Juanita, attempting to give her away to passersby. Upon investigation, it was found that Juanita, who at that time was living with Mr. and Mrs. Lyn Barrett, was in dreadful physical condition. She suffered from severe cradle cap, and diaper rash that consisted of open sores on her entire pelvic area. Her complexion was white and pasty and she was extremely constipated. She was irritable, did not know day from night and did not know how to play. The Bar-retts stated that the child had been filthy when she came to them. Further investigation revealed that the Meltons’ home, where the child had been living, was filthy and that there was no food in the house other than baby food which had been donated by friends.

On March 10, 1977, DPS received a pickup order and obtained custody of Juanita at Mrs. Melton’s attorney’s office, where Mrs. Melton had gone to sign consent forms placing the child for private adoption. The following day a hearing was held at which DPS was awarded temporary custody. Juanita was placed in foster care.

Subsequently, Mrs. Melton divorced her husband, found steady employment, made new friends and became involved in church activities. DPS, apparently believing that she had made great strides toward improving her life, began allowing Mrs. Melton short visits with Juanita. Eventually, physical and thereafter legal custody was returned to Mrs. Melton, for whom DPS continued to provide counseling and services.

In February 1979, DPS received another abuse report indicating that Juanita was suffering from three to four-inch bruises on her buttocks and that her potty training had regressed to the point that she was wetting herself several times a day. Investigation revealed the child to be withdrawn, unable to interact with others and quiet, often sitting alone in her room. After receiving this report, DPS began further counseling of Mrs. Melton. This counseling was terminated when Mrs. Melton moved from Tallapoosa to Montgomery County.

On February 8, 1981, Mrs. Melton was arrested by the Montgomery City Police Department and charged, along with her boyfriend, Robert Burkett, with abusing Juanita. Both admitted to beating the child with a belt, a board and their hands, leaving excessive bruises, one atop the other, resulting in a solid bruise from the middle of the child’s back to the back of her knees. Mrs. Melton pled guilty to the charges and was sentenced to six months in Bryce Hospital. DPS was again given temporary custody of Juanita.

Upon release from Bryce, Mrs. Melton returned to Montgomery, returned to work and continued to receive counseling in parenting and assertiveness training. In December 1981 Mrs. Melton regained physical custody of Juanita. Legal custody was returned to her in March 1982.

In July 1982 Montgomery County DPS received another abuse report indicating mistreatment of Juanita. The Montgomery Police Department received a similar report on July 12, 1982. That same day DPS, acting pursuant to a pickup order, removed the child from Mrs. Melton’s home. Subsequent investigation revealed that the child had again been beaten, resulting in bruising of her arms and legs and severe bruising and lacerations of her buttocks. The investigation showed that these beatings were inflicted by Burkett, whom Mrs. Melton had been ordered by the court not to' see, and that they occurred with the knowledge, if not the consent, of Mrs. Melton. Thereafter, Burkett was charged with assault and Mrs. Melton was returned to jail for having violated her probation. She remained in jail for approximately one year. Juanita was again placed in foster care.

Temporary custody was returned to DPS on August 11, 1982, and permanent custody was awarded said agency on October 27, 1983. On November 10, 1983, Mrs. Melton appealed from the October 27 order, alleging that there was insufficient evidence to support the trial court’s termination of her parental rights.

In addition to the foregoing evidence, expert testimony at trial indicated that Mrs. Melton is a passive-dependent personality type who is incapable of profiting from her experiences and who tends to act without considering the consequences of her actions. Such personalities, the record shows, may frequently find themselves in recurring difficult situations. The record also shows that such persons might find it impossible to protect their own child from abuse by others and that, in Mrs. Melton’s case, if Juanita were returned to her custody, the potential for further abuse would always be present.

Although Mrs. Melton is currently undergoing treatment for this disorder, all testimony indicates that treatment of as long as three years may be necessary before she could be safely reunited with Juanita. Expert testimony also shows that Juanita suffers deep emotional scars as a result of the abuse visited upon her. The child is extremely afraid of Robert Burkett and does not believe that Mrs. Melton can protect her from him. Such fears cause the child to experience bad dreams, culminating in bed-wetting whenever she is faced with the possibility of being reunited with her natural mother. All testimony indicates that the child has developed a strong attachment to her present foster parents, and that her primary need is for immediate and continued love and emotional stability. Such needs, the record shows, would not be satisfied should the child remain in foster care pending her mother’s rehabilitation; and the record is clear that visitations from Mrs. Melton would only be harmful to Juanita. In short, all evidence establishes that Juanita’s emotional wellbeing will be best served by immediate permanent adoption into a stable home environment.

In child custody matters, the welfare and best interest of the child is always the controlling consideration. Lovell v. Department of Pensions and Security, 356 So.2d 188 (Ala.Civ.App.1978). Where, as here, a child custody matter is heard ore tenus, the trial court’s determination will be given every favorable presumption and will not be disturbed unless palpably wrong. Fitzgerald v. Jeter, 428 So.2d 84 (Ala.Civ.App.1983). If there is any evidence to support the trial court’s judgment, we must affirm, absent palpable error. Fitzgerald, supra.

Although this court normally finds severing the natural bonds between a parent and child to be difficult, we must do so where the best interest of the child requires. There is clear and convincing evidence that Juanita is greatly in need of an immediate, stable home environment. The mother has not, during the lifetime of this abused and tormented child, provided her an environment other than one of nightmares.

In spite of the protestations of the mother and supportive witnesses that she has undertaken a course of self improvement, the fact remains that she has entered into such apparently sincere self-improvement in the past. Each time the child has been returned to her custody only to again suffer abuse. Considering that history, we consider the trial court correctly determined that opportunity for further abuse of Juanita should be ended through the severance of parental rights of the mother. We commend and affirm that determination.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Testimony reveals 'that in 1976 Mr. Melton suffered a severe brain injury which left him erratic, unstable and immature, causing him to make all sorts of threats and engage in bizarre behavior.

      . Evidence indicates that such counseling is proper treatment for persons, like Mrs. Melton, with passive dependent personalities.