text:
    LAWLER MOBILE HOMES, INC. v. Corene HINKLE.
    Civ. 4202.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Rehearing Denied Sept. 19, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 84-29.

      Clyde C. Owen, Jr., and Richard E. Broughton of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    Larry W. Morris of Radney & Morris, Alexander City, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee sought workmen’s compensation benefits from her employer. The trial court found the employee to be “totally and permanently disabled” and awarded her benefits. In addition, the trial court awarded lump sum attorney fees and allowed the employer a credit for earlier sums recovered by the employee in a prior tort action.

The employer through able counsel, who has favored this court with an excellent brief, appeals and we affirm.

The employer raises two issues. The employer first contends that the trial court erred in awarding lump sum attorney fees; second, the credit allowed employer from the prior tort action is not supported by the evidence.

It is neither necessary nor prudent to set out in detail the facts. The pertinent facts as they relate to the first issue are as follows:

The employee’s total and permanent disability award was $113.33 per week per Ala.Code § 25-5-57(a)(4) (1975).

The attorney fees for employee’s attorney were set by the trial court pursuant to Ala.Code § 25-5-90 (1975). This statute provides in pertinent part: “[T]he judge, upon the hearing of the complaint for compensation, shall fix the fee of the attorney for the plaintiff for his legal services and the manner of its payment, but such fee shall not exceed 15 percent of the compensation awarded or paid.”

The amount of attorney fees was set at fifteen percent of the compensation award, and the trial court granted employee’s motion to award attorney fees in a lump sum. Consequently, the lump sum of $28,560.08 was awarded representing fifteen percent of the compensation benefits. The record provides that the compensation benefits were arrived at without complaint from either party by use of certain mortality tables.

Furthermore, the trial court determined that pursuant to Ashland Chemical Co. v. Watkins, 435 So.2d 1301 (Ala.Civ.App. 1983), “the employer defendant shall be entitled to terminate the payments when the remaining balance equals the above sum” of $28,560.08. Pursuant to Ala.Code § 25-5-57(a)(4)(b), (i), (j) (1975), the trial court also provided that employee is to notify employer “if and when she obtains gainful employment in accordance with these provisions and upon that occurrence the benefits shall terminate.”

The pertinent facts relating to the second issue are as follows:

The employee as a result of the same occurrence giving rise to this workmen’s compensation case sued a third party tort-feasor. She obtained a judgment. As a result of the judgment, $15,000 was paid into court in favor of employee. One-third of this amount apparently constituted attorney fees.

The trial court in the present case determined that employer was due a credit of $12,100 as a result of employee’s recovery in the prior tort action.

The employer, as indicated, first contends that the trial court erred in awarding lump sum attorney fees. The employer cites Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803 (1921), as controlling precedent.

The Alabama Supreme Court in Woodward determined that under Alabama Compensation Act, 1919 Ala.Acts 206, No. 245, § 23 (August 23, 1919), a lump sum award for permanent disability “could not be commuted, in whole or in part, by the trial court without the consent of the parties _” Woodward, 206 Ala. at 451, 90 So. at 806.

Henceforth, employer ■ relying upon Woodward asks this court to overrule its decision in Ashland Chemical Co. v. Watkins, 435 So.2d 1301 (Ala.Civ.App.1983). This court held in Ashland that a trial judge’s determination of the manner of payment of attorney fees in workmen’s compensation cases is discretionary by statute.

This court in Ashland construed the meaning of Ala.Code § 25-5-90 (1975). We stated in Ashland that “[t]he most clear and reasonable construction of the statute suggests that it is left to the sound discretion of the trial judge to direct the ‘manner’ of payment of attorney’s fees.” Ashland, 435 So.2d at 1302.

This statute permitting lump sum attorney fees within the discretion of the trial judge applies to all workmen’s compensation cases. The 1919 Ala.Acts 206, No. 245, § 23 (August 23, 1919) referred to in Woodward Iron Co. v. Bradford, 206 Ala. at 451, 90 So. at 806, required an agreement of the parties with consent of the court for lump sum attorney fees for an “excepted class” of claims. One claim in that “excepted class” is a claim for permanent disability. We must, however, enforce Ala.Code § 25-5-90 (1975) as the current law on awarding attorney fees in lump sum in a workmen’s compensation case.

The employer argues in brief that the lump sum award' of attorney fees could exceed the fifteen percent statutory mandate because of contingencies such as death or rehabilitation of employee. We stated in Ashland Chemical Co. v. Watkins, 435 So.2d 1301, 1303 (Ala.Civ.App. 1983), the following:

“The fact that there is a possibility of a later change in the compensation award has no effect on the award of attorney’s fees. The attorney has earned the fee regardless of subsequent changes. The computation of attorney’s fees is based on the facts as to the attorney’s services as of the time the services are rendered.”

This court is not inclined to overrule its decision in Ashland. We reaffirm.

As to the employer’s second contention that the evidence does not support the credit allowed employer from the earlier sums recovered by the employee in the prior tort action, we note that the employer in brief appears to concede that there is evidence to support a credit of $13,000. Therefore, employer cannot successfully complain about a $12,100 credit. Consequently, we affirm the trial court order of a $12,100 credit to the employer under Alabama Rules of Appellate Procedure 45, which provides in pertinent part:

“No judgment may be reversed or set aside ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” (emphasis added).

Furthermore, we note the standard of review in any workmen’s compensation case. “[I]n workmen’s compensation cases the trial court’s finding is conclusive if there is any evidence in the record that will support it.” Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109, 110 (Ala. Civ.App.1982) (emphasis added). There appears to be some evidence to support a $12,100 credit because of the $10,000 received by employee from a third party tort-feasor taking into account attorney fees of $5,000 in that action plus $2,100 paid into court in favor of employee’s apparent insurer, Alabama Farm Bureau Mutual Casualty Company.

In any event, this case is due to be and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Irene B. MARDIS and Paul Mardis v. BIG NANCE CREEK WATER MANAGEMENT DISTRICT, a Water Management District of the State of Alabama, and Lawrence County, Alabama, a Political Subdivision of the State of Alabama.
    Civ. 4415.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Rehearing Denied Sept. 19, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 84-32.

      John L. Sims, Hartselle, for appellants.
    D.L. Martin, Moulton, for appellees.
   BRADLEY, Judge.

This is a land condemnation case.

On April 23, 1982 the Big Nance Creek Water Management District and Lawrence County, a political subdivision of the state of Alabama, filed a complaint in the Probate Court of Lawrence County seeking condemnation of an undivided one-half interest in 18.9 acres owned by Irene B. Mardis and husband, Paul Mardis. The purpose of the condemnation was to acquire an easement over the above described lands so that floodwaters could be impounded by the construction of a dam.

On May 21, 1982, after a hearing, the probate court ordered the property condemned and appointed commissioners to view the property and assess the damages to be awarded the property owners. The commissioners fixed the damages at.$500. The probate court then entered a final order of condemnation and awarded damages of $500 to the property owners.

The property owners-defendants appealed to the Circuit Court of Lawrence County. After a nonjury hearing the circuit court entered an order condemning the property and awarding damages to the defendants in the amount of $750. The defendants appeal.

The defendants’ first question on appeal is whether Big Nance had been incorporated pursuant to sections 9-9-1 to -80, Code 1975, and thus had the authority to condemn the property in question.

The Alabama Water Management Act, 1965 Ala.Acts 685, sections 9-9-1 to -80, Code 1975, provides that the probate court of any county may establish water management districts for the purpose, among others, of flood prevention by constructing floodwater retarding structures. The process is commenced in the probate court by the filing of a petition containing the names of a majority of landowners owning more than a third of the land in a proposed district or by at least one-third of the persons owning more than one-half of the land in the proposed district. The petition must set forth the specific body of land that will be benefitted by the construction of the proposed works. The court must then appoint a competent engineer to survey the proposed district to be benefitted. The engineer must ascertain whether the proposed improvement will promote the public health, safety, and welfare and, if so, prepare a tentative estimate of the cost of the proposed improvements.

The probate court must then hold a hearing, notice of which must be given, at which all affected parties may appear and be. heard. After the hearing the court shall, if it finds that purposes of the act will be subserved, declare the district organized as a body corporate with all powers authorized by the act. Among these powers is the power of eminent domain. § 9-9-21, Code 1975. An appeal may be taken to the circuit court within twenty days of this decision.

The evidence reflects that the Probate Court of Lawrence County entered an order creating the Big Nance Creek Water Management District on November 1,1969. The record does not show that an appeal was taken from this judgment. Therefore, pursuant to section 9-9-21, Big Nance, being a body corporate to carry out the purposes of the Water Management Act, had the authority to condemn the property in question for the purpose of impounding floodwaters.

Defendants next contend that the evidence does not support the circuit court’s decision that the purposes of the Water Management Act would be served by condemning the land in question. They argue there is no proof that the public interest would be served by the condemnation.

There is testimony in the record that the acquisition of the easement by Big Nance would permit the construction of a dam which would control floodwaters and reduce erosion to the land, thereby benefit-ting all of the property above the dam. There was additional testimony that benefits would flow to the property lying below the dam and all the way to the Tennessee River by reducing flooding and erosion.

This case was tried to the court sitting without a jury, and the trial court’s findings are clothed with a presumption of correctness which will not be disturbed except where unsupported by the evidence or for palpable error. Silverman v. Charmac, Inc., 414 So.2d 892 (Ala.1982). The evidence in the present case supports the trial court’s findings. No error here.

Defendants’ final contention is that the damages awarded them for the taking of their property are inadequate.

The evidence shows that the damage suffered by the defendants ranged from $500 to $30,000. The trial court awarded the defendants $750 for the damage to their property as a result of the impoundment of floodwaters on part of their property. Where the amount of damages fixed by the trier of fact falls between the high and low valuation testimony, the verdict or judgment will not be deemed excessive or inadequate. State v. McLe-more, 387 So.2d 827 (Ala.1980). We find no error in this aspect of the case.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Robert James SAMPSON v. Debra SAMPSON. In the Matter of Rebecca SAMPSON.
    Civ. 4324.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1984.
    Rehearing Denied Oct. 3, 1984.
    Certiorari Denied Nov. 21, 1984, Alabama Supreme Court 84-67.

      David Gespass of Gespass & Johnson, Birmingham, for appellant.
    Kelby E. Strickland, Jr. of Strickland, Stoddard & McDuffie, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a juvenile case involving custody of a minor child.

On September 7, 1983, Debra Sampson filed a petition informing the court of previous litigation involving her child in Pennsylvania and informing the court that she and the child had lived in Alabama for the last six months. The relief requested was custody of the child. The court set the petition for hearing on November 7, 1983, and awarded temporary custody to the petitioner. On November 7, the respondent, Robert James Sampson, filed in open court a motion to dismiss for lack of jurisdiction. Respondent based his claim on the Alabama Uniform Child Custody Jurisdiction Act. § 30-3-20, Code of Alabama 1975 (1983 Repl.Vol.). Pursuant to respondent’s motion, the court ordered the child removed from petitioner’s custody and vested temporary legal custody in the St. Clair County Department of Pensions and Security, pending further orders. DPS was directed to investigate the Pennsylvania action and to make its findings known to the court by trial set for December 5, 1983.

On December 5, the trial was held. Overruling respondent’s motion for summary judgment, the court found that after giving an order and allowing ample time, no certified copies of pleadings and orders from the Pennsylvania courts were presented to the St. Clair County Juvenile Court; that the petitioner was not properly notified of the Pennsylvania proceedings; and the Pennsylvania court was thus without jurisdiction. Temporary legal custody was returned to petitioner.

Appeal was taken to the St. Clair County Circuit Court. The circuit court dismissed the appeal on April 3, 1984, for want of jurisdiction under Rule 28, Alabama Rules of Juvenile Procedure. Appeal came here.

The dispositive issue in this case is whether the appellant should have appealed the juvenile court decision to the circuit court or directly to the court of civil appeals. We have held that appeals from orders of a juvenile court involving jurisdiction over a “child” under Rule 28(C)(2), A.R.J.P., go to the court of civil appeals. Wright v. Montgomery County Department of Pensions and Security, 423 So.2d 256 (Ala.Civ.App.1982). We hold that this is a case involving jurisdiction of the juvenile court over a “child” to determine custody and falls within the purview of Rule 28(C)(2)(c), A.R.J.P. This holding is based upon the relief sought in the petitioner’s first pleading. Therefore the circuit court had no jurisdiction over the appeal. The order of dismissal of the appeal was proper. The appellant had only fourteen days from the trial court’s order of December 5, 1983, to bring written notice of appeal to this court. Rule 28(C)(3), A.R.J.P. Such time had long expired prior to appeal to this court. Therefore this court’s jurisdiction was not timely invoked. Rule 2(a)(1), A.R.A.P. The appeal must be dismissed.

It should be noted here that had the appeal from the order of juvenile court been properly brought to this court, there would have been no record for this court to review. We have previously attempted to point out to both courts and counsel the requirement of Rule 20, A.R.J.P., that a complete record be kept of all proceedings until time for appeal has expired. Without such record this court could not have spoken to other issues had the appeal been properly brought.

APPEAL DISMISSED.

BRADLEY and HOLMES, JJ., concur.


text:
    William F. ECHOLS, Sr. v. Macel Mae ECHOLS.
    Civ. 4201.
    Court of Civil Appeals of Alabama.
    Oct. 17, 1984.

      William B. Reneau and Robert B. Re-neau, Wetumpka, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were divorced on November 10, 1983, on grounds of incompatibility. The trial court made no finding of fault against either party. As property settlement the wife was awarded use and possession of the family residence, together with title to its contents; a 1979 Lincoln automobile; and joint ownership in a lot near the family residence.

The court required periodic payments of the husband including the balance of all mortgage payments and ad valorem taxes on all real estate owned by the parties including the family residence; hazard insurance oh said residence; life insurance on the husband’s life of not less than $50,-000 with the wife as beneficiary or if unable to secure such amount, to make the wife beneficiary of whatever amount of insurance the husband presently has; $500 per week as alimony; and attorney fees in the amount of $5,000 plus court costs. The husband’s primary contention on appeal is that the trial court erred to reversal in awarding the wife periodic payments (in addition to said property settlement) which go well beyond his financial means.

The evidence pertinent to the husband’s financial picture shows that the husband is president and 98% stockholder of two corporations; Coosada Trucking Company (Coosada) and Bill Echols Trucking. The former is a hauling operation and the latter is a truck repair and maintenance service company. The office manager for the combined businesses stated that the companies have a gross annual income of approximately five million dollars. However there was substantial evidence presented at trial that the companies were heavily in debt. The office manager stated that because of the debts, Coosada was not making any money and had written approximately twelve checks on insufficient funds in the last year. There was also evidence that the husband had considered bankruptcy in 1982 but had avoided it through the help of an able attorney and cooperative creditors. The tax returns for Bill Echols Trucking showed negative income for the years 1980, 1981 and 1982, and Coosada showed a negative income for 1981. The husband and wife had a taxable income, for 1981 of $20,-235, and evidence showed their income had not fluctuated greatly in recent years.

The trial court in granting a divorce has the authority to order an allowance to a spouse who has no separate estate or an estate insufficient to maintain that spouse. § 30-2-51, Code of Alabama 1975 (Repl. vol. 1983). A spouse’s misconduct can increase the amount of alimony that spouse must pay. § 30-2-52 of the Code (Repl. vol. 1983). There is no fixed rule for alimony and each case must be decided on its own facts. Stewart v. Stewart, 341 So.2d 490 (Ala.Civ.App.1977). It is proper to make inquiry into such relevant factors as:

“(1) the earning ability of the parties; (2) their probable future prospects; (3) their age, sex, health and station in life; (4) the duration of the marriage; and (5) the conduct of the parties with reference to the cause of divorce. Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184 (1950).”

The award of alimony and a division of property in the granting of a divorce are matters for the discretion of the trial court; however, the exercise of such discretion must be based upon equitable principles and is thus subject to review on appeal if the result is arbitrary and unjust. Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980).

In applying these principles to the judgment of the trial court, which is presumed correct, we find the burden placed on the husband by the terms of the divorce decree to be not supported by the evidence. The purpose of the award of property and alimony according to statements of the court during trial was to preserve the business. The reason stated was that the husband appeared uniquely qualified to manage the business and also that the business employed all three of the parties’ adult children. We find the award to the wife to be so oppressive as to endanger the continued operation of the business, which is necessary to the livelihood of the family. “Such an award, in the absence of a showing of extreme need, such as total infirmity of the wife, and/or infamous treatment by the husband, would tend to remove incentive of the husband to work and earn.” Long v. Long, 324 So.2d 789 (Ala.Civ.App.1975).

The wife’s only job since 1974 has been assisting in the management of the family business. In considering what periodic payment would be equitable and reasonable, we note that in 1980 the wife received as salary from Coosada $10,050, which was later corrected to $8,625, and received no compensation from Bill Echols Trucking. In 1981, as stated earlier, the parties’ combined income was $20,235. In view of the fact that the wife will be receiving cost-free housing from the award, with other benefits, it appears that alimony in an amount approximating her annual salary during the marriage would be reasonable and fair to both parties. Upon re-mandment we suggest such amount for the consideration of the trial court.

Appellant also contends the trial court had no jurisdiction to award the vacant lot on Haggerty Road in Wetumpka to the parties jointly. The testimony is undisputed that the parties did not own this lot but had previously deeded it to their son. Where the evidence is undisputed, the reviewing court will construe the evidence de novo, indulging no presumptions in favor of the trial court’s determinations. Sasser v. Spartan Food Systems, Inc., 452 So.2d 475 (Ala.1984). We find the trial court exceeded its jurisdiction as to this lot, and paragraph five of the divorce decree is due to be deleted.

The trial court’s judgment is reversed and the cause remanded to permit the court to reconsider the amount required of the husband to be paid in light of the necessity of continued profitable operation of the business for the welfare of the entire family-

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Beda Ray HOUSTON v. LOUISIANA LAND EXPLORATION COMPANY, a Corporation.
    Civ. 4327.
    Court of Civil Appeals of Alabama.
    Oct. 17, 1984.

      John L. Jernigan III of Stokes, Jernigan & Stokes, Brewton, for appellant.
    Peter V. Sintz and Thomas R. McAlpine of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

On November 7,* 1979, while he was an employee of Louisiana Land Exploration Company, the claimant injured his left knee while he was at work. The company paid to the claimant scheduled member disability benefits to his left knee of twenty-five (25%) percent, and certain medical benefits.

After surgery was performed on his knee in February 1980, the claimant fell in his back yard, injuring his back. The claimant went to a Dr. Abendan and complained that he had “twisted his ankle” and fallen in his yard.

In March 1981 the claimant suffered another fall and went to see a Dr. Batson, complaining that he had tripped over a garden hose in his yard and reinjured his back.

In February 1981, the claimant had filed suit in Mobile County Circuit Court against Louisiana Land Exploration Company, alleging that the compensable injury to his knee had caused the subsequent injuries to his back, and that the back injury, in addition to the knee injury, had left the claimant in a condition of permanent total disability. After a convoluted legal course the case was finally decided by the trial court in April 1984. The trial court found that the back injury was not caused by the injury to the claimant’s knee, and therefore was not compensable as it did not arise out of claimant’s employment or in the course of it. The trial court assigned a permanent partial disability to the claimant of twenty-five percent (25%) to the body as a whole. From that final decree the claimant appeals.

In a workmen’s compensation case, our scope of review as to factual matters is strictly limited to an examination of the evidence before the trial court to determine if there was any legal evidence supportive of the trial court’s findings. Allen v. Diversified Products, 453 So.2d 1063 (Ala. Civ.App.1984). If there was, we must affirm the court’s judgment, as we do not consider the weight of the evidence, but only its existence. Allen, supra.

In this case, after examining the evidence, the trial court did not agree with the claimant’s contention that his back injury was caused by his prior, compensable knee injury, and therefore in itself compensable.

The trial court, after considering testimony from the claimant and depositions of the claimant’s doctors, found that the injury to the claimant’s back did not occur in the course of nor arise out of his employment. The trial court ruled that the claimant’s back injury was from other causes, specifically, his stepping into a hole and falling and his tripping over a garden hose.

The trial court may consider all evidence, including its own observations, and interpret it according to its own best judgment. Allen, supra. The record clearly reveals that there was legal evidence to support the conclusion of the trial court. The burden is upon the claimant to establish a causal connection between the work and the injury in workmen’s compensation cases, Ray Motels, Inc. v. Griffin, 428 So.2d 107 (Ala.Civ.App.1983), and the trial court did not find that burden was met in this case. The court cannot rely on speculation, conjecture or surmise in determining that an injury arose out of an on-the-job accident. Ray Motels, supra.

The claimant also contests the amount of disability assigned by the trial court to the claimant. The trial court is not bound by expert testimony indicating the degree of claimant’s bodily disability. Allen, supra. A trial court may make a finding of a permanent percentage of disability without expert medical testimony. Bankhead Forest Industries, Inc. v. Lovett, 423 So.2d 899 (Ala.Civ.App.1982). We cannot find that the trial court erred in its determination of disability.

This case is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Terri A. Moody DAVIS v. Kenneth L. MOODY.
    Civ. 4171.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.

      John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    E. Paul Jones of Oliver, Sims & Jones, Alexander City, for appellee.
   BRADLEY, Judge.

This is a child custody case. The mother appeals from a decree of the Circuit Court of Tallapoosa County, ^warding custody of her son to his paternal aunt and her husband, Mr. and Mrs. Snow.

The mother, Terri Davis, and the father, Kenneth Moody, were married on January 6,1977, when Mrs. Davis was sixteen years old. A son, Jason, was born to the parties on April 28, 1978. The parties separated several times during their marriage and frequently left Jason with his aunt, Anita Snow, during these separations. In September 1980 the parties entered into a separation agreement whereby the mother was awarded custody of Jason. The couple had been heavy drug users during their marriage. In October 1980 Mrs. Davis, realizing the seriousness of her drug addiction, arranged with Mrs. Snow to keep Jason temporarily while she sought professional help. The mother went to the Chemical Dependency Unit in Baton Rouge, Louisiana for rehabilitation, and was released in November 1980. She stated that she has not used drugs since that time. She met George Davis at the drug center and later lived with him, after both were released from the center. The couple eventually married a few months prior to trial.

While in Mrs. Snow’s custody Jason was diagnosed as having a hernia which required an operation. Mrs. Snow sought temporary custody of Jason in January 1981 in order to obtain medical treatment for Jason. Shortly after Mrs. Snow filed her petition for custody, Jason’s mother arrived to take her son back with her. The mother testified that Mrs. Snow told her that she could not have the child and, therefore, she left without taking Jason. In February 1981 the mother again sought to regain custody of her child after a final decree of divorce was entered in Tallapoosa County, awarding custody to her. However, the sheriff refused to assist her because of the temporary custody order entered on Mrs. Snow’s behalf in Marshall County. Eventually, the Circuit Court of Marshall County transferred the cause to the Circuit Court of Tallapoosa County. On June 14, 1982 default judgment was entered by the Tallapoosa Circuit Court, awarding custody of Jason to the father, with the stipulation that he reside with Mr. and Mrs. Snow. The mother then filed a petition to modify this decree, seeking to regain custody of Jason. The father filed his answer to the subject petition, requesting that the court continue custody of the child in him, or in the alternative, transfer custody to Mrs. Snow. The Snows filed a counterclaim asking that custody of the child be awarded to them. The court, however, struck their counterclaim because the Snows were not parties to the suit. On December 12, 1983 the court awarded the custody of Jason to Anita and Max Snow, nonparties to the subject action. The mother appealed to this court.

The mother contends on appeal that the trial court erred to reversal in awarding custody of Jason to his aunt and her husband, on the ground that they were not parties to the original divorce proceeding and she, therefore, had no notice of their claim for legal custody of the child. We disagree.

Mrs. Davis relies on our holding in Anonymous v. Anonymous, 353 So.2d 510 (Ala.Civ.App.1977), which was subsequently reversed by the supreme court in Anonymous v. Anonymous, 353 So.2d 515 (Ala. 1977). In Anonymous the supreme court held that an award of custody of a minor child to nonparty paternal grandparents, without notice to the mother and opportunity to be heard, was a denial of due process. The court observed that the testimony at trial centered around the custody dispute between the mother and father, and that the mother was given no notice whatsoever that the grandparents’ right to custody of the child was in issue. We find the holding announced in Anonymous not controlling on the facts of the ease before us. As will be shown below, the mother had adequate notice that the Snows were asserting their right to legal custody of the child.

When the mother filed a petition to modify the decree of the Tallapoosa Circuit Court dated June 14, 1982, the Snows filed a counterclaim seeking to obtain legal custody of Jason. As mentioned above, this counterclaim was struck. Furthermore, the court indicated that a motion to intervene on the day of trial would be untimely. However, the trial court indicated that if it decided that it would be in the best interests of the child to be placed in the Snows’ home it would do so, regardless whether the counterclaim was permitted or not. The following conversation is found in the record:

“THE COURT: I agree. The parties who are not before the Court cannot file a counterclaim.
“MR. JONES: Well,—
“THE COURT: And what you have filed here is clearly styled ‘Counterclaim.’ And then it starts, ‘Now, come now Anita Snow and Max Snow ...’
“MR. JONES: All right. The alternative relief which has been prayed for by the original Defendant then would cover the issue anyway.
“THE COURT: Well, as I — as I say, I’ve understood all along.
“MR. JONES: Well, we just wanted to be sure that—
“THE COURT: And I’m not dealing — I don’t — I don’t intend to just exclude the interest that the Snows have shown in this matter all the way through. In fact, if I remember correctly when the matter first came up, I insisted that they be notified and — and—
“MR. GAVIN: And I did that, Your Honor.
“THE COURT: — and that they have the opportunity to be here in whatever capacities that they wished to be here.”

The above-statements made in court were clearly sufficient to put the mother on notice that the aunt’s claim to legal custody of the child was in issue. Moreover, Mr. and Mrs. Snow testified at trial that they wished to keep Jason in their home. Several reports from the Department of Pensions and Security were admitted into evidence without objection. These reports recommended that Jason remain in Mrs. Snow’s home. Given the above, Mrs. Davis cannot now assert that she had no notice of the Snows’ interest in Jason’s custody, particularly in view of the father’s answer, which prayed in the alternative that custody be awarded to the Snows. In fact, at trial, opposing counsel made it clear that the father was no longer asserting his right to legal custody since he had recently been arrested. The Snows, and not the father, testified at trial, and a close review of the record indicates that the custody dispute was actually between the mother and Anita Snow. Therefore, we conclude that the mother had adequate notice of the Snows’ claim for legal custody of the child and an adequate opportunity to be heard on this issue. We determine that the trial court did not err in awarding legal custody to the Snows, who were not parties to this action.

The mother next contends that the trial court committed reversible error in awarding the custody of her son to his aunt, and asserts as a ground for her contention that a natural parent has a prima facie right to the custody of his child as against a nonparent’s custody. Ex parte Sullivan, 407 So.2d 559 (Ala.1981); Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983). However, this presumption does not apply where a prior decree has awarded custody to nonparents and removed it from the natural parent. Ex parte Mathews, 428 So.2d 58 (Ala.1983); Ex parte Berryhill, 410 So.2d 416 (Ala.1982).

The Tallapoosa Circuit Court’s prior decree dated June 14, 1982 awarded custody to the father with the stipulation that he reside with the Snows. Upon considering the mother’s petition to modify this decree, the circuit court awarded custody to the Snows. In this situation, where the mother seeks to regain custody of a minor child who by prior decree has been placed, even temporarily, with another, she has the burden of proving that a modification of the custody decree is necessary to promote the child’s best interests. Chandler v. Manning, 411 So.2d 160 (Ala.Civ.App.1982). In the case at bar the superior right of the mother to custody of her son was overcome by the prior decree awarding custody to Mr. and Mrs. Snow.

After examining the record carefully, we conclude that the mother and the Snows were capable of taking care of the child. The mother appears to have reformed her lifestyle and no longer uses drugs. However, our cases have held that evidence that one’s lifestyle has improved is not sufficient to warrant a change of custody. Abel v. Hadder, 404 So.2d 64 (Ala.Civ.App.1981). The mother must show not only that she is fit to have custody but also that a custody change would “ ‘materially [promote]’ the child’s best interest and welfare.” Ex parte McLendon, 455 So.2d 863 (Ala.1984).

As stated by our court, “The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.” Wood v. Wood, 333 So.2d 826 (Ala. Civ. App.1976).

The Snows have taken care of Jason during a very traumatic period in his life. They have comforted him while he was very sick. We realize that there were extenuating circumstances preventing the mother from visiting her son during this period; however, the Snow family has provided much care and support for Jason during his three year stay with them. The Snows have raised Jason in a good environment and have provided Jason with a large degree of permanence and stability. Jason has apparently adjusted very well to the Snow family. Given the evidence introduced at trial, the mother did not show that her child’s interests would be promoted by a custody change so as to justify uprooting the child. Therefore, the mother failed to meet the standard required to modify a custody decree. Accordingly, we find that the court’s award of custody was not clearly erroneous, and we therefore affirm the judgment of the trial court awarding custody of the child to Mr. and Mrs. Snow.

Both parties’ requests for attorneys’ fees on appeal are denied.

AFFIRMED.

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


text:
    Jean S. MILLER v. LOCAL MORTGAGE COMPANY, INC.
    Civ. 4236.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.

      Charles H. Rice of Main, Smith & Rice, H. Wayne Love of Boozer, Colvin & Love, Anniston, for appellant.
    Ralph D. Porch of Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   BRADLEY, Judge.

The plaintiff, Jean Miller, appeals from a summary judgment motion granted on behalf of the defendant, Local Mortgage Company, on the ground that her claim against defendant is barred by the doctrine of res judicata.

Miller entered into an agreement with Anniston Lincoln-Mercury to purchase an automobile. Miller gave a wrap-around mortgage on her real estate to Local Mortgage to finance the payments on her car. Miller originally filed suit in circuit court against Local Mortgage and others, alleging two counts of fraud and misrepresentation, one count of outrage, and one count of a violation of 15 U.S.C. § 1640 (1980), known as the Truth-in-Lending Act. The count alleging a violation of 15 U.S.C. § 1640 included requests for the following relief: (1) a refund of any monies paid to defendants, (2) termination of said transaction, (3) costs and reasonable attorney’s fees, and (4) punitive damages. The jury returned a verdict in favor of Miller in the sum of $50,000 for misrepresentation and $500 for defendant’s violation of the provisions of the Truth-in-Lending Act.

Local Mortgage then instituted foreclosure proceedings on Miller’s property after she discontinued payments on the wraparound mortgage. Miller was granted a temporary restraining order in circuit court enjoining the said foreclosure, but the order was dismissed upon her failure to post bond. The property was sold on May 27, 1983. Miller then filed an amended complaint claiming that the foreclosure was invalid because of defendant’s fraud, misrepresentation, and violation of 15 U.S.C. § 1635. On June 13, 1983 Miller again amended her complaint, alleging that she had rescinded the mortgage to Local Mortgage pursuant to 15 U.S.C. § 1635. The circuit court entered summary judgment for Local Mortgage, ruling that Miller’s suit was barred by her prior action.

The dispositive issue of this appeal is whether Miller’s action is barred by the doctrine of res judicata because she had earlier sued defendant on a claim arising out of the same transaction.

The application of the doctrine of res judicata so as to bar Miller’s subsequent claim requires the following elements: "

“(1) [Tjhat the prior judgment must have been rendered by a court of competent jurisdiction; (2) that there must have been a final judgment on the merits; (3) that the parties, or those in privity with them, must be identical in both suits; and (4) that the same cause of action must be involved in both suits.”

Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir.1975).

Both parties concede that the parties in the prior and subsequent suit are substantially the same. Apparently neither party disputes that the elements listed above are satisfied. Miller contends, however, that her present suit is not barred by her prior judgment because she had a continuing right to rescind the loan transaction and because Local Mortgage continued to violate the Truth-in-Lending Act. Cases illustrating the continuing nature of the right to rescind have not addressed whether a prior suit alleging counts of misrepresentation and violation of 15 U.S.C. § 1640 bar a subsequent suit for rescission based on violations of 15 U.S.C. § 1635. See Rudisell v. Fifth Third Bank, 622 F.2d 243 (6th Cir.1980); Bustamante v. First Federal Savings & Loan Association, 619 F.2d 360 (5th Cir.1980); Littlefield v. Walt Flanagan & Co., 498 F.2d 1133 (10th Cir.1974). It appears from the cases cited above that this continuing right of rescission was intended to overcome the required time limitations for rescission and not to bar the application of res judicata.

Several tests have been employed to determine whether a subsequent claim is barred by a prior judgment. The “same evidence” test has often been used for this purpose.

“The best and perhaps most invariable test as to whether a former judgment is a bar is to inquire whether the same evidence will sustain both the present and the former action. If this identity of evidence is found, it will make no difference if the form of the two actions is not the same. Whatever be the form of the action, the issue is deemed the same whenever it is supported in both actions by substantially the same evidence. If it be so supported, a judgment in one action is conclusive upon the same issue in any suit, though the cause of action is different.”

Reid v. Singer Sewing Machine Co., 218 Ala. 498, 119 So. 229 (1928) (citations omitted).

Both 15 U.S.C. § 1635 and § 1640 require proof of substantially the same evidence; section 1640 provides for civil liability for any nondisclosure by a creditor, and section 1635 provides a rescission action for material nondisclosures. In her complaint in the prior suit, Miller alleged, among other various violations of the Truth-in-Lending Act, 15 U.S.C. § 1640, that Local Mortgage failed to disclose plaintiff’s right of rescission. In her subsequent suit Miller asserted that the mortgage was void under 15 U.S.C. § 1635 based on Local Mortgage’s disclosure to Miller that she had a right to rescind until May 12, 1981 instead of the correct date, May 13, 1981. Defendant’s disclosure of the wrong date could have been raised in Miller’s prior suit, particularly since Miller alleged in her prior complaint that Local Mortgage failed to disclose her right of rescission. Miller also could have sought to have the mortgage rescinded under 15 U.S.C. § 1635 in her original suit. In fact, Miller sought to have the entire transaction voided in her prior suit, essentially the same relief that she is seeking in her subsequent suit. Where res judicata elements listed above are present, the prior judgment is a bar to a subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action. Gulf American Fire & Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968). Therefore, under the tests cited above, Miller’s claim for rescission in her later suit is barred by her prior judgment.

In a similar case, Stokes v. Twin City Motors, Inc., 490 F.Supp. 742 (D.Ark.1980), plaintiff brought an action against defendants based on a contract action and a claim of usury in state court. Later plaintiff brought an action in federal court based on Truth-in-Lending violations, 15 U.S.C. § 1640(e). The district court indicated that although the Truth-in-Lending Act presented a different requested relief than the prior suit much of the same evidence on the same contract would be presented in both actions, and, therefore, held that plaintiff’s later suit was barred. See also Restatement (Second) of Judgments § 25 (1982) (illustrating that where plaintiff brings an action for deceit against defendant, and later brings a second action for rescission, such action is barred).

Miller’s subsequent suit involves the same subject matter, issues, and evidence as was presented in the former suit between the same parties; therefore, her suit to rescind the mortgage pursuant to 15 U.S.C. § 1635 is barred.

Accordingly, the trial court’s grant of summary judgment on behalf of Local Mortgage is affirmed.

AFFIRMED.

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


text:
    Steven Jerome FIKE v. DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 4334.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.
    David R. Arendall of Arendall & O'Kelley, Birmingham, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a parental rights termination case.

The child was born to Rhonda Fike on July 2, 1982, and was subject to sudden death syndrome. Because the mother neglected, failed, or refused to provide adequate protection to the child, his custody was awarded to the Jefferson County Department of Pensions and Security (DPS) when the child was less than one month old, and he has remained in their custody since that time. On September 30, 1983, DPS filed a petition requesting that the rights of the parents of the child be terminated permanently and that DPS be authorized to place the child for adoption. Mr. Fike was given notice of the filing of that petition. The trial court, on December 5, 1983, appointed an attorney to represent Mr. Fike. Since he was incarcerated at Holman Prison, an order was rendered by the trial court that Mr. Fike be transported from prison to court so that he could be present at the hearing to be held on December 20, 1983. At that hearing, Mr. Fike and his mother were examined by his appointed attorney and the witness for DPS was cross-examined. By an order dated December 20, 1983, Mr. Fike’s parental rights to the child were terminated. He appeals from that judgment.

In viewing the evidence in light of the ore tenus rule, the following is pertinently revealed:

Mr. Fike testified that he and Rhonda were married in 1978, that they separated in the summer of 1979 but that they are still man and wife. Without any equivocation, he swore that he is not the biological father of this child, that he and Rhonda were separated at all pertinent times, that he resided in Georgia, that they had no contact whatsoever eight, nine or ten months prior to the child’s birth, and that it was physically and scientifically impossible for him to be the child’s biological father since he did not have any sexual relations with Rhonda during the period.

Mr. Fike further testified that he was arrested on February 2, 1983, and was later convicted of murder, for which he received a life sentence. He will not become eligible for his first parole consideration until February 1997, at the earliest. He desires that his parents raise the child pending his release from the penitentiary. Neither he nor his parents have ever seen the child, had any contact with the infant or supported the child.

Since the evidence .in this case was heard ore tenus by the trial court, its judgment is given every favorable presumption and will not be overturned unless it was palpably wrong. Before parental rights to the custody of a child may be terminated by a juvenile court, the evidence before the trial court must be clear and convincing that it would not be to the best interest of the child that the parent have custody. King v. State, 451 So.2d 314 (Ala.Civ.App.1984). There is a strong and persuasive presumption that a child born to a married woman is presumed to be the legitimate offspring of the husband, and the measure of proof required to rebut such a presumption is great, for it may be rebutted only by “clear and convincing evidence which tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father.” Leonard v. Leonard, 360 So.2d 710, 712 (Ala. 1978) (citations omitted). Here, Mr. Fike testified against his own interest as to his parenthood of the child. He swore in no uncertain terms that he was not the child’s biological father. His own evidence is clear and convincing that it was “naturally, physically, or scientifically impossible” for him to be the child’s natural father. Since the presumption of legitimacy was overcome by his own admissions, he is not the father of this child for any purpose.

Mr. Fike is neither the natural father nor the presumed father nor the adoptive father of the child. It follows that his parents are not the paternal grandparents of the child and that it is immaterial that their home was not investigated by DPS. The overruling of the objections of Mr. Fike’s attorney to two questions, which are here raised as issues, constitute, at most, error without injury because, since he is not the father of the child, it is immaterial that Rhonda did, or did not, tell a case worker for DPS that they were divorced or that another man, the child’s purported natural father, did, or did not, admit to his fatherhood of the child. Rule 45, Alabama Rules of Appellate Procedure; Rule 61, Alabama Rules of Civil Procedure.

Mr. Fike’s appointed counsel contends that his appointed trial attorney did not provide meaningful assistance to the client. We disagree. His trial counsel clearly and concisely examined, or cross-examined, all witnesses and entered several appropriate objections to various questions which were propounded to various witnesses. Meaningful assistance has been provided to Mr. Fike by his trial attorney in the family court and by his appellate counsel in this appeal.

The evidence clearly and convincingly supports the finding of the trial court. The decision was not palpably wrong. The judgment of December 20, 1983, is affirmed.

In considering substance rather than form to be the controlling factor, we deem the notice of appeal as filed with the clerk of the family court on December 29, 1983, to be adequate. The intention to appeal from the particular December 20, 1983, judgment may be reasonably inferred from the text of that notice since only those two parties were concerned with the December 20, 1983, hearing and judgment and with this appeal, and since that particular judgment favored DPS and was unfavorable to Mr. Fike’s contentions. Edmondson v. Blakey, 341 So.2d 481 (Ala.1976). The motion of DPS to dismiss Mr. Fike’s appeal is overruled.

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

AFFIRMED.

All the Judges concur.


text:
    Robert G. JOHNSON, Jr. v. MOBILE COUNTY PERSONNEL BOARD and Mobile County Youth Center.
    Civ. 4339.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.

      Michael D. Langan, Mobile, for appellant.
    Mylan R. Engel and Maury Friedlander, Mobile, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal involves the validity of the dismissal of a permanent employee of Mobile County.

Mr. Johnson, the employee, had worked for the Mobile County Youth Center (center) for seven years. He was a detention officer whose duties included the supervision of the juveniles in all areas of the center. His first responsibility was to prevent the juveniles from injury, or from abusing one another, which requires much careful observation. A detention officer’s other duties were to prevent escapes and to work and to talk with the juveniles in an attempt to contribute towards their rehabilitation. Additionally, Mr. Johnson frequently manned the center’s master control station where the transmissions from video and audio devices which are located throughout the center are received. The master fire switch and emergency radio are also located at the master control station. That fire switch notifies the fire department and opens doors at the center in the event of a fire. The emergency radio scans weather reports. Injuries to juveniles and employees can occur if the employee who mans the master control center is inattentive or nonobservant, or fails to exercise good judgment.

By a memorandum dated February 4, 1983, the superintendent of the center requested of Judge Butler, the employee’s appointing authority, that a predisciplinary hearing be held because Mr. Johnson had been absent without leave and because he had again exhibited symptoms of mental illness. On February 9, 1983 Judge Butler, the appointing authority, gave the following notice to the employee:

“Due to your absence without leave since February 2, 1983, and your incapacity due to mental disability to perform the duties of Youth Detention Officer as evidenced by your recent conduct at work and your commitment by the Probate Court of Mobile County, Alabama to a hospital for evaluation of mental illness, you are hereby notified that your employment at' the Mobile County Youth Center is terminated and you are dismissed as an employee effective this date. You are also given notice that you have the right to an evidentiary hearing concerning this action within twenty-eight (28) days of this action.”

On March 1, 1983 the appointing authority notified the employee that an evidentia-ry hearing would be held in the judge’s office on March 7, 1983 in accordance with the employee’s desire. The employee appealed to the Mobile County Personnel Board (board) on March 1, 1983. There is nothing in the record as to what happened to the hearing before Judge Butler, but both sides are in agreement that the hearing was not held. The employee was given a prior notice of a full scale evidentiary hearing before the board, which was held on March 24, 1983, with the employee and his counsel being present. At no time between the filing of his notice of appeal on March 1, 1983 and the entry of the board’s written decision of April 4, 1983, did the employee raise any objection or question about a pretermination hearing not having been held by the appointing authority, or that there was a lack of due process, or that certain rules of the board had not been complied with. The board affirmed the dismissal of the employee with an express finding that the employee was guilty of being absent without leave and that he was clearly incapacitated due to mental illness.

The employee timely appealed to the circuit court, where the decision of the board was affirmed on April 4, 1984. Upon his present appeal from the circuit court to this court, the employee raises three issues. However, two of those issues are so entwined that we shall consider them jointly.

The employee contends that he was not afforded a predisciplinary hearing, as is required by rule 14.3(a) of the rules of the board.

Among the grounds for the dismissal or suspension of a permanent employee as stated in the board’s rules, are absence without leave and incapacity due to mental disability. Under rule 14.3(a), due process in the form of a predisciplinary hearing must be provided by the appointing authority to a permanent employee before he may be dismissed or suspended. To that end, the employee must be given written notice of the reasons for the termination at least twenty-four hours before the prediscipli-nary hearing and the employee must be given the opportunity to respond orally or in writing to the charges before the appointing authority. The rule expressly provides that if a dismissal by an appointing authority is made without first according the predisciplinary hearing to an employee the dismissal shall be void and the board shall not recognize such a dismissal except in “extraordinary situations.” Those extraordinary situations are defined in rule 14.3(b) as including circumstances where an employee’s retention would:

“(1) [Rjesult in damage to public property; (2) result in injury either to the employee, a fellow employee, or to the general public; and (3) where an employee is confined in jail or prison under a writ of arrest or other judicial process. In any such event, the Appointing Authority shall, nevertheless, furnish written notice to the employee of the specific reasons for termination or suspension within twenty-four (24) hours of such dismissal or suspension, and shall also be given an opportunity for an evidentiary hearing within twenty-eight (28) days of such action.”

Thus, due process is provided in extraordinary situations by rule 14.3(b) in substantially the same language as was stated in Thurston v. Dekle, 531 F.2d 1264 (5th Cir.1976), as constituting due process.

Unless an extraordinary situation existed and rule 14.3(b) was complied with, the board would have been forced by their own rules to ignore Mr. Johnson’s discharge, for there was no predisciplinary hearing provided to him.

In view of the employee’s duties and his mental illness and condition, which will be subsequently discussed, there was reasonable cause to believe that his retention would result in damage to the center’s property or, more importantly, that it could foreseeably result in damage to himself, his fellow employees, or to the center’s juveniles who were under his supervision. In other words, because of the nature of his duties and of his mental condition, an extraordinary situation existed.

The appointing authority timely furnished the written notice of February 9, 1983 to the employee and, at the employee’s request, on March 1 set an evidentiary hearing for March 7, which was within twenty-eight days of his termination. That hearing was not held, for reasons which, are not apparent from the record, but we attribute it to the fact that on March 1, 1983 the employee appealed his dismissal to the board. All parties had notice of the hearing which was to be held by the board, had a reasonable time within which to prepare for the hearing, and had the opportunity to have witnesses subpoenaed to testify on their behalf at the hearing. On March 24, 1983 an extensive hearing was conducted by the board where the burden of proof rested upon the appointing authority. The employee was present with able counsel who cross-examined the center’s witnesses and examined Mr. Johnson’s witnesses. Ten witnesses testified, six for the appointing authority and four for the employee. His witnesses consisted of his physician, a clinical psychologist, the employee’s wife, and the employee himself. The transcript of the testimony consumed one hundred eighteen pages, and the twenty-five exhibits appear on an additional sixty pages of the record. After considering all of the competent evidence, the board upheld the termination of Mr. Johnson’s employment.

The purpose of the board’s rule 14.3 is to provide due process to an employee before he is terminated. Mr. Johnson was given an opportunity for a timely post-termination hearing by his appointing authority within the prescribed time but, when he took his appeal to the board before that particular hearing could be held, his appeal waived the hearing before the appointing authority. A posttermination evidentiary hearing was held by the board after due notice to the employee, who had sufficient time to prepare, was represented by an attorney of his own choosing, and was granted every opportunity to be present and to present his case in detail. In short, due process was there fully provided to Mr. Johnson in every aspect and detail. An employee’s posttermination hearing is sufficient to protect those property and liberty interests which merit due process protection. Best v. Boswell, 696 F.2d 1282 (11th Cir.1983); Thurston v. Delete, supra; Davis v. Vandiver, 494 F.2d 830 (5th Cir.1974). Generally in Alabama, a permanent employee can be discharged without a prior hearing as long as a post-discharge hearing is provided. Guthrie v. Civil Service Board, 342 So.2d 372 (Ala. Civ.App.1977).

Since the appointing authority validly considered the circumstances to be extraordinary and attempted to provide a postter-mination hearing, which was waived by the employee’s appeal, and since the hearing before the board comported with due process, we find no constitutional defect here. Upon the merits of these two combined issues, we find no error.

While we have written to the merits of these consolidated issues, we also determine that the record does not reflect that Mr. Johnson raised any question at any time before the board concerning either a lack of any hearing, pre or post, before his appointing authority, or any noncompliance by the appointing authority with the board’s rule 14.3, or that he had not been afforded due process by the appointing authority. Accordingly, those issues were presented too late for the consideration of the circuit court or by this court. Guthrie v. Civil Service Board, supra.

The employee’s final issue is whether the board acted in an arbitrary and capricious manner in affirming his discharge. Under the provisions of the same legislative act which created the board and which prescribed its powers, it was provided that, upon an appeal of a board decision to the circuit court, the findings of fact of the board are conclusive upon appeal if the findings were supported by substantial evidence which was adduced before the board, provided that procedural due process was afforded by the board to all parties (which proviso was met by the board in the matter). Local Acts of Alabama 1939, Act 470, p. 298. In construing that particular act and similar statutes, the courts have determined that the review by the circuit court is not de novo but, in effect, is certiorari. The circuit court examines only the external validity of the proceedings to see if the board’s findings are supported by substantial evidence and, upon appeal from the ruling of the circuit court, this court is also bound by the same board record and the substantial evidence rule. Guthrie v. Civil Service Board, supra; City of Mobile v. Personnel Board, 57 Ala.App. 516, 329 So.2d 570 (Ala.Civ.App.1976); Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285, cert. denied, 291 Ala. 458, 282 So.2d 291 (1973).

The board utilized the February 9, 1983 notice to the employee from Judge Butler as being the charges against the employee.

The final order of the board first detailed the testimony of the various witnesses. Some mistakes of fact and erroneous statements as to some of the testimony of some of the witnesses are contained in those summaries. However, we do not find that aspect of the board’s order to be so wrong as to constitute error. The order of the board made the following findings of fact at the conclusion thereof:

“The Board has carefully considered all of the testimony adduced at the hearing, including exhibits offered into evidence and arguments of counsel. The testimony is without dispute that the employee has been suffering from mental illness for a number of years. Mr. Johnson’s wife testified that she was aware of his mental condition when they married back in 1972, and that while he went for a number of years without any problems, his irrational behavior occurred again and she left him in September, 1982. Dr. Hunt and Dr. Van Rosen, both witnesses for the employee, testified in substance that he suffers from chronic depression and a paranoid type schizophrenia. The Prichard Police Officers testified concerning his irrational and erratic behavior when they found him on the street in early February, and his subsequent behavior in the Prichard City Jail. In addition to his mental illness, the record is clear that he was guilty of absence without leave on several occasions.
“From all of the material evidence adduced at the hearing, there is no question that this employee has a great propensity for erratic and irrational mental behavior. Whether these episodes occur when Johnson fails to take his proper medication or not is not clear. What is clear, however, is that the Appointing Authority was justified in taking this disciplinary action against him. The burden of proof is upon the Appointing Authority. The Board is of the firm opinion that the Appointing Authority has clearly met that burden. The Board concludes from a careful review of all of the material evidence adduced at the hearing that this employee was guilty of being absent without leave and that he is clearly incapacitated due to mental disability.
“Therefore, after giving careful and deliberate consideration to all of the material evidence adduced at the hearing, it is the DECISION, FINDING and ORDER of the Board that the action of dismissal heretofore imposed upon this employee, ROBERT G. JOHNSON, JR., be and the same is hereby, in all things, AFFIRMED.”

We have carefully read, examined and studied the entire record of the hearing which was held before the board, and we pretermit detailing that evidence, since this would not be beneficial to anyone. Suffice it to say that, except for a discrepancy as to the year of their marriage (which occurred earlier than in 1972), the board’s findings of fact are supported by substantial evidence, the board did not act in an arbitrary and capricious manner, and the board’s action in affirming Mr. Johnson’s discharge from his employment should not be disturbed.

We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Boyce Garrett ERWIN v. Theodore H. HARRIS.
    Civ. 4421.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.
    James M. Patton of Patton & Goodwyn, Birmingham, for appellant.
    Dick D. Nave of Furner, Boyce & Nave, Homewood, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

Mr. Erwin, the employee, received an on-the-job injury to his left knee on May 15, 1982. The accident happened on the first day of his employment, his father-in-law being his employer. The first report of injury by the employer to the workmen’s compensation insurance company (carrier) reveals that the employer was in the lawn maintenance business, that the employee was injured while operating a riding mower and that the employee was a part-time employee with an average weekly wage of $16. The carrier paid compensation to the employee for thirty-six weeks at the rate of $60 per week and, on January 27, 1983, they notified the employee that they had only owed $30 each week to him instead of $60, that they had overpaid him $1,080 and that no further payments would be made on his claim until the overpayment was corrected.

The physician of the employee informed the carrier by letter that the employee’s disability was 30% to his leg as a whole. The carrier wrote to the employee on May 28, 1983, and offered to settle with him. The computations contained in the letter were based upon an average weekly wage of $30 and were as follows:

1. $30.00 x 30% = $9.00

2. 200 weeks X $9.00 = $1800.00

3. $1800.00 minus $1080

overpayment = $720

By letter, the employee accepted that settlement offer. Thereafter, a joint petition was filed seeking the approval of the circuit court of a lump sum settlement in accordance with the offer and acceptance correspondence between the employee and the carrier. After a hearing upon the petition, which was attended by the employee, the trial court rendered a judgment on July 7, 1983, which determined that the allegations of the petition were true and ascertained that the settlement was substantially in compliance with the workman’s compensation law. The trial court approved the settlement. The employee was paid the $720 and he satisfied the judgment on the case action summary on July 7, 1983.

On August 2, 1983, the carrier wrote to the employee that they had been advised by the State of Alabama Workmen’s Compensation Bureau that the settlement figures had been miscalculated and that, after recomputing his compensation in accordance with the figures given to them by the State, the carrier still owed to the employee the sum of $1,738.91. A check for that amount was enclosed with that letter and the check was cashed by the employee. Further approval by the circuit court of that enlargement of the settlement was neither sought nor obtained by any party.

On November 29,1983 and December 16, 1983, the employee filed an application and motion to vacate the July 7, 1983 judgment and the settlement. Those pleadings were expressly based upon § 25-5-56 of the Code of Alabama 1975 and upon Rule 60(b)(6) of the Alabama Rules of Civil Procedure. Therein, he claimed that the carrier misrepresented to him that his average weekly wages were only $30 per week and that he was only due $720 as compensation. He further averred that the carrier’s method of calculation of his benefits, that their method of determining the employee’s average weekly wages and that their representation to him that he had been overpaid by the sum of $1,080 were each fraudulent. His last averred ground to set aside the settlement was that he was coerced into settling prior to his reaching maximum medical improvement because of the supposed overpayment of $1,080 and that he was further coerced into accepting the further sum of $1,738.91. He sought additional compensation and he also sought the payment of his medical expenses which had accumulated since the approval of the consent settlement of July 7, 1983. Attachments to those pleadings which are presently pertinent were copies of the carrier’s letters to the employee dated January 27, 1983, May 28, 1983, and August 2, 1983.

The employee filed his affidavit that on May 15, 1982, the date of the accident, he had just begun working for his father-in-law and “was to be paid $30.00 per day and work was to be available four to five days per week,” that, due to the short period of employment, the term “average weekly wage” was confusing; however, had he not been hurt, he would have made somewhere between $120 and $150 per week.

An affidavit of the carrier’s claim representative who handled the employee’s claim was, in part, as follows:

“The Employers First Report of Injury which was the first notice our company received of the claim, indicated that the employee sustained injury to his left knee. It also indicated that Mr. Erwin was employed only on a part-time basis at a wage rate of $16.00 per week. Subsequent contacts with our insured indicated that the actual wage rate was $30.00 per week. As this amount, $30.00 per week, was less than the minimum benefits allowed under the Workmen’s Compensation Act for the State of Alabama, we began payment of temporary total benefits at the prevailing minimum rate of $60.00 per week.
“Payments were continued at the rate of $60.00 per week until our office received a telephone call from Mr. Marc Davis of the Alabama Department of Industrial Relations on January 19, 1983. Mr. Davis advised that the proper weekly rate should have been $30.00 per week, and that we should take credit for the previous overpayment on any future temporary total disability benefits or lump sum settlement. Mr. Erwin was advised of this by letter under date of January 27, 1983.
“A disability rating was subsequently received from Mr. Erwin’s attending physician, and an offer of lump sum settlement based on the rating was transmitted to Mr. Erwin by letter dated May 28, 1983. We subsequently received a written response from him accepting this offer. ... A lump sum settlement was completed in the Circuit Court for Jefferson County on July 7,1983, in accordance with the disability rating received and the wage rate set by the Department of Industrial Relations.
“Thereafter, I received a telephone call from Mr. Raymond Miller of the Alabama Department of Industrial Relations on July 21, 1983. He advised me that there was an error in the wage rate, and instructed me to correct the error by paying temporary total and permanent partial benefits at the wage rate of $60.00 per week. This was done by letter dated August 2, 1983, paying an additional amount of $1,738.91 to Mr. Erwin.”

The attorney for the carrier stated in his affidavit that, regarding the settlement as approved by the court, he computed the benefits in accordance with Alabama’s workmen’s compensation law, that his computations and the carrier’s figure were identical, that he is absolutely certain (although he has no independent recollection of it) that he advised the employee that he did not have to accept the offered settlement, that the employee was free to consult with an attorney of his choice and that all portions of the proposed settlement, and the effect thereof, were fully explained by him to the employee.

The trial court rendered a judgment on May 31, 1984, that correctly determined that double aspects were involved in the latest litigation. The aspect asking that the court vacate the consent settlement ,was overruled. The other aspect concerned the employer’s claims for medical expenses, as to which factual disputes existed. The medical expense aspect was ordered set for trial in the regular order of business on a non-jury docket. The employee timely appealed. Helpful briefs have been filed by able counsel for both sides.

Much of the employee’s argument concerns his medical expense claim. That aspect was factually disputed, was at issue and was set for trial. The trial court, under those circumstances, could not have awarded the relief sought without a trial. We fail to comprehend in what manner the trial court acted erroneously regarding that matter. Accordingly, we will not comment further about it since it is still in litigation.

Rule 60(b)(6) allows a judgment to be set aside for any reason justifying relief; however, that provision operates exclusive of the specific grounds listed in Rule 60(b)(1) through (5), and a party may not escape the four-month time limit imposed upon Rules 60(b)(1), (2), and (3) just by characterizing his motion as a 60(b)(6) motion. Snowden v. United Steelworkers of America, 435 So.2d 62 (Ala.1983). Accordingly, since the employee’s application and motion were both filed more than four months after the judgment, the trial court could not relieve the employee from the judgment of July 7,1983 for mistake or for fraud, misrepresentation or other misconduct of the carrier under Rule 60(b)(1), (2), or (3). However, the employee’s petition was filed within a reasonable time insofar as Rule 60(b)(6) is concerned.

Section 25-5-56 of the Code provides that workmen’s compensation settlements which have had the prior approval of the circuit court may be vacated for fraud, undue influence or coercion upon application made to the judge approving the settlement at any time not later than six months after the date of the settlement. Accordingly, the employee’s petition to vacate the settlement under that code section was timely filed.

Regardless of whether the trial court considered the application and motion of the employee to be grounded upon Rule 60(b)(6) or § 25-5-56, or both, the trial court had a discretion to exercise in the grant or refusal of the relief requested and its judgment will not be reversed on appeal except for an abuse of discretion. Douglass v. Capital City Church of the Nazarene, 443 So.2d 917 (Ala.1983); Webb v. Galloway, 442 So.2d 53 (Ala.1983). The same judge who rendered the July 7, 1983 judgment which approved the settlement also rendered the May 31, 1984 judgment. The trial court could have been of the opinion that the employee did not meet his burden of proof regarding any of the averred grounds of his application or motion. The trial court might not have been reasonably satisfied that the employee had been paid a total sum of money which was less than the amount which should have been paid under the statute. His primary argument in that respect was concerned with the average weekly wage and his proof pertaining thereto was largely contained in his affidavit. The trial court could have viewed his wage evidence as being conclu-sionary and inadequate to authorize the setting aside of the July 7, 1983 judgment and settlement. § 25-5-57(b), Code of Alabama 1975. The facts of record are not so extraordinary as to mandate a reversal of the learned trial court for not granting the relief prayed for under Rule 60(b)(6). In short, on the record before us, which we have summarized in detail, we cannot state that the trial court abused its discretion in overruling and denying that aspect of the litigation which sought to vacate the consent settlement which had been previously entered in this cause. The May 31, 1984 judgment of the circuit court in this case is hereby affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Haywood FULLER v. Flora Stines FULLER.
    Civ. 4273.
    Court of Civil Appeals of Alabama.
    Oct. 31, 1984.

      Stan Brobston, Bessemer, for appellant.
    No brief for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from denial of a rule 60(b), Alabama Rules of Civil Procedure, motion for relief from judgment.

A final judgment of divorce was entered on October 5, 1983. A motion under rule 60(b), A.R.Civ.P., was filed on November 1, 1983 and heard on November 22, 1983. This motion was denied on December 2, 1983, and appellant moved for reconsideration, which was heard on January 17, 1984 and denied on February 23, 1984.

Appellant and appellee were married three times and divorced twice prior to this action. On this occasion the appellee’s attorney prepared the complaint, acknowledgment of representation, answer and waiver, and agreement concerning property rights, child custody, child support, alimony, and visitation rights. The answer and waiver, acknowledgment of representation, and agreement were signed by appellant before a witness. Appellee and witness testified that appellant was told, before he signed, that these were divorce papers. Appellant testified he thought they were concerning his child’s entrance into college. Appellant contends he is illiterate and did not understand what he was signing. The trial court found against appellant on this point.

Appellant argues that the judgment of divorce is void as the court did not have jurisdiction to enter the judgment because the appellant was not served a summons and complaint, and that unless the appellant signed the instruments with knowledge that he was waiving his right to be heard it was not an effective waiver.

It is elementary that a judgment is void if the court rendering it lacks jurisdiction over the subject matter or the parties. James v. James, 369 So.2d 811 (Ala. Civ.App.1979). Rule 4(h), A.R.Civ.P., states:

“A defendant or his attorney may accept or waive service of process, provided that said acceptance or waiver is in writing and signed by the defendant and a credible witness.”

This was done in this instance, and it has been held:

“Nor is there any reason why the defendant, in an action for divorce, cannot waive service of process upon him, subject to the right of the court, as in other cases, to dismiss the action where collusion between the parties appears.”

Wright v. Wright, 230 Ala. 35, 159 So. 220 (1935); O’Bannon v. O’Bannon, 257 Ala. 246, 58 So.2d 779 (1952). It is obvious that the court had jurisdiction over the parties and the subject matter.

The purpose of a rule 60(b) motion is not to retry the original case, but is to present good cause why defendant should be relieved from the judgment. 11 C. Wright & A. Miller, Federal Practice & Procedure § 2851 (1978); McGhee v. Conveyor Machinery Corporation, 361 So.2d 372 (Ala.Civ.App.1978). “When passing on an attack upon a judgment the court is given wide discretion; it must balance the desire to remedy injustice against the need for finality of judgment.” Frazier v. Malone, 387 So.2d 145 (Ala.1980). None of the grounds set out in rule 60(b) were established by the defendant on hearing and rehearing of the motion. The grant or denial of a 60(b) motion is within the judicial discretion of the trial court. We find no abuse of that discretion, and this case is affirmed.

Appellee’s motion for attorney’s fee on appeal is denied.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.