text:
    TRANSPORT ACCEPTANCE CORPORATION v. Jeffrey MATHENY.
    Civ. 4248.
    Court of Civil Appeals of Alabama.
    Nov. 7, 1984.
    Jerry W. Jackson, Haleyville, for appellant.
    Nelson Vinson, Hamilton, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from the denial of a motion for judgment notwithstanding the verdict.

Appellee executed a retail installment credit contract on September 7, 1979, for the purchase of a 1972 International truck. On the same day said contract was assigned to appellant. Appellee made only one payment and the truck was repossessed in July 1980. On July 17, 1980, appellant sent a registered letter, which was returned unclaimed, to appellee at his Winfield, Alabama, address. Appellee had moved to East Moline, Illinois, on July 25, 1980, but his family remained in Winfield until May 1983. The truck was sold on July 30, 1980, in Nashville, Tennessee, to appellant for $3,500. Appellant filed action for deficiency of $5,547.89, which resulted in a jury verdict in favor of appellee. Appellant filed a motion for judgment notwithstanding the verdict, which was denied.

Appellant cites as error the trial court’s denial of its motion. A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. See Committee Comment to Rule 50, Alabama Rules of Civil Procedure. It should not be granted if there is any conflict in the evidence for the jury to resolve, and the existence of such a conflict is to be determined by applying the scintilla rule. Hanson v. Couch, 360 So.2d 942 (Ala.1978); McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (Civ.App.1975).

Appellant’s motion to the trial court contains two grounds: one is that when the plaintiff rested its case it moved the court to strike the defendant’s response to request for admissions which were filed with the complaint on August 14, 1981, and not answered until June 6, 1983. The admission requested in question was, “The truth of the following statement: That you owe the deficiency to the plaintiff, in the amount of $5,547.59.” This was the burden plaintiff-appellant assumed when it filed the complaint and it failed to show any prejudice by the late response. Evans v. Insurance Co. of North America, 349 So.2d 1099 (Ala.1977).

The other ground is to the effect that the verdict of the jury is contrary to the evidence, that is, the evidence showed, undis-putedly, that the defendant was liable for payment of the note, and he did not present any legal defense to absolve himself from payment.

A motion for judgment notwithstanding the verdict does not permit a trial judge to substitute his judgment for that of the jury on the facts and will not allow the trial judge to exercise that discretion permitted him on a motion for new trial, i.e., to consider the demeanor of the witnesses and the credibility of the evidence. Rule 50(b), A.R.Civ.P., and Hanson v. Couch, 360 So.2d at 942. Furthermore, the court’s review of the grant of a J.N.O.Y. compels us to view the evidence in the light most favorable to the party who secured the jury verdict. Chavers v. National Security Fire & Casualty Co., 405 So.2d 1 (Ala.1981).

We are of the opinion that the evidence and reasonable inferences therefrom, in this case, are sufficient to substantiate the jury’s verdict. Taking the tendencies of the evidence most favorable to the appel-lee, the jury could conclude that the truck was not sold in a reasonable commercial manner, as testimony by appellant only concerned company policy and not what actually occurred, and that there was a breach of express warranty by seller to defendant. The trial court instructed the jury among other things, “If you are reasonably satisfied that the vehicle was not as warranted, then you would be entitled to subtract whatever damages the Defendant suffered because of breach of warranty.” The evidence of warranty is slight, but we are unable to consider its credibility and there was no motion to exclude requested instructions or exception to the court’s instruction.

We hold that the trial court correctly-overruled appellant’s motion for judgment notwithstanding the verdict.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as 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.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Ollie Luckett ORR v. April Dale HAMMOND.
    Civ. 4340.
    Court of Civil Appeals of Alabama.
    Nov. 7, 1984.
    Robert Straub of Russell, Straub & Kyle, Decatur, for appellant.

      Nicholas B. Roth of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by the plaintiff below (appellant) from the denial of her motion for a new trial. The single issue raised on appeal is whether the trial court erred in refusing to grant appellant’s motion for a new trial on the ground of inadequacy of the jury’s verdict.

The appellant filed a negligence action in the Morgan County Circuit Court, seeking damages for injuries suffered by her in an automobile accident in Hartselle in July 1981. At trial, the appellant offered evidence in support of her claims for medical expenses, lost wages, and pain and suffering. The appellee contested the amounts claimed under both the medical expenses and the lost wages. The major contentions of the appellee were that the appellant could have returned to work much sooner than she did; that the appellant was claiming as medical expenses charges unrelated to or not caused by the accident; and that the type injuries suffered by the appellant were those which should have healed rather quickly, with no severe or extended pain and suffering involved.

After considering the testimony of several witnesses, including the appellant, and after considering the depositions of two physicians seen by the appellant, the jury returned a verdict in favor of the appellant in the amount of $2,000. The appellant then filed a motion for a new trial, alleging as grounds, among others, that the damages awarded by the jury were inadequate. The trial court denied the motion, and this appeal was taken.

The questions presented on a motion for a new trial on the grounds of inadequacy of damages are, (1) whether the verdict is so opposed to the clear and convincing weight of the evidence as to clearly fail to do substantial justice, and (2) whether the verdict fails to give substantial compensation for substantial injuries. Roland v. Krazy Glue, Inc., 342 So.2d 383 (Ala.Civ.App.1977). When considering these questions, the reviewing court must remember that a jury verdict is presumed to be correct and will not be set aside for an inadequate award of damages unless the amount awarded is so inadequate as to plainly indicate that the verdict was the result of passion, prejudice or improper motive. Henderson v. Hanson, 414 So.2d 971 (Ala.Civ.App.1982). This presumption is strengthened when the trial court has denied a motion for a new trial. Henderson, supra.

There was conflicting testimony below over both the nature and amount of the appellant’s injuries. It appears from the record that many of the claimed medical expenses were for conditions unrelated to the accident. Whether the itemized medical expenses were proximately caused by negligence is a question for the jury. Stone v. Echols, 351 So.2d 902 (Ala.1977).

Though appellant claims on appeal that she should have been awarded lost wages for the ten weeks she was off from work, there was ample evidence from which the jury could have concluded that she could have returned to work three weeks after the injury. The customary evidence offered in support of a claim for lost wages is testimony as to the length of time the plaintiff was absent from work due to the injury and the rate of pay that he would have received for those days. (Emphasis added.) Roland v. Krazy Glue, Inc., supra; Ala. Law of Damages § 36-4 (1982). Here the jury apparently believed that the appellant was able to return to work sooner than she chose to.

Appellant also contends that there was considerable testimony as to pain and suffering. The measure of damages for physical suffering is left largely within the discretion of the jury in light of all the circumstances surrounding the injury, including the intensity, severity, character and duration of the suffering. Ala. Law of Damages, § 36-3 (1982). Here, if the evidence is construed most favorably toward the appellee, as the jury apparently did, and we think could reasonably have done so, the $2,000 verdict would include at least a small amount for pain and suffering.

Finally, we are aware of decisions which have held that where liability is proven, a.verdict must be returned which includes, in addition to an amount sufficient to make any compensation for pain and suffering, an amount at least as high as the uncontradicted special damages. See, Ex parte Patterson, 459 So.2d 883 (Ala.1984); McCain v. Redman Homes, Inc., 387 So.2d 809 (Ala.1980); Bibb v. Nelson, 379 So.2d 1254 (Ala.1980); Stone v. Echols, 351 So.2d 902 (Ala.1977). In this case, however, the special damages were contradicted, and the jury, in exercising its proper function as the trier of fact, apparently did not feel that many of the claimed special damages were proved to have resulted from the appellee’s negligence. Therefore, after considering all of the above, it is our opinion that the trial court is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    John James PERRY v. Sandra Agnes PERRY.
    Civ. 4402.
    Court of Civil Appeals of Alabama.
    Nov. 7, 1984.

      Stephanie Winning, Huntsville, for appellant.
    Patrick H. Graves, Jr. of Smith, Huckaby & Graves, Huntsville, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from a final judgment of divorce.

Sandra Perry filed an action for divorce, and John James Perry filed an answer and counterclaim for divorce. Sandra Perry dismissed her complaint, and trial proceeded on the counterclaim. A judgment of divorce was rendered on May 16, 1984, awarding Sandra Perry custody of the three minor children, $450 a month as child support, $700 a month as alimony, possession of the house with the responsibility to pay the mortgage, attorney’s fees in the sum of $1,565, and other personal property, with visitation rights at specific times to John James Perry.

Appellant contends as error the failure of the trial court to order a mental examination of appellee and their children. On April 19, 1984 appellant filed a motion under rule 35, Alabama Rules of Civil Procedure, requesting the court to order appel-lee and their children to undergo psychological counseling and examination. Appellant alleges this would assist in the matter of child custody and that he had agreed to a continuance of the case based on the appellee’s assurance she would voluntarily be examined, along with the children. This is not borne out by the record, as the agreement to continue states only that ap-pellee was to deliver the parties’ third child about the time of the hearing. No affidavits accompanied the motion, and no other reference is made except in testimony that appellee did not go to the psychologist selected by appellant. Appellee did go to a psychologist of her choice over a period of time. The trial court did not rule on this motion, nor was it brought to the court’s attention for ruling. The trial proceeded on May 8, 1984, and appellant did not object to going to trial without this information. The grant or denial of a motion for a physical or mental examination rests in the sound discretion of the trial court. See, Coca-Cola Bottling Co. v. Negron Torres, 255 F.2d 149 (1st Cir.1958); Balfour v. Balfour, 413 So.2d 1167 (Ala.Civ.App. 1982). No abuse of discretion was shown in this case.

Appellant further alleges that the trial court erred in granting child custody, alimony, child support, attorney’s fees, and property division. Appellant objected to testimony concerning attorney’s fees, as none had been requested in the amended answer. The appellee asked for child custody and support, alimony, certain real and personal property, and “such other relief as the Court may deem meet and proper.” From the record:

“MS. WINNING: I would like to renew my objection to attorneys’ fees, as it was not requested in the amended complaint, and that attorneys’ fees are not allowable unless they are so requested.
“MR. GRAVES: Your Honor, we ask for such other relief as the Court might see fit.”

There was no ruling by the court, and the court proceeded to hear evidence as to attorney’s fees. Although this is not preferred pleading, the appellant has failed to show any prejudice to him in maintaining his action upon the merits. Rule 15(b), A.R.Civ.P. It was an amendable matter and, appellant not eliciting a ruling from the court, the objection is deemed waived. An award of attorney’s fees rests in the sound discretion of the trial court, which must consider, among other factors, the earning capacity and the financial circumstances of the parties. Sprinkle v. Sprinkle, 441 So.2d 974 (Ala.Civ.App.1983). The record in this case shows evidence as to the need of the wife and performance of service by her attorney. Appellee has only sporadic employment.

As to child custody and support, alimony, and property division, it is a well-established principle that a divorce decree is presumed correct in instances where testimony is taken orally before the trial court, “[a]nd this presumption is overcome only when the reviewing court determines from an examination of the record before it that the trial court’s decree is unsupported by, or contrary to, the evidence presented at trial.” Roberts v. Roberts, 854 So.2d 21 (Ala.Civ.App.1978). The prevailing consideration in child custody matters is the best interests of the child. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976).

In divorce actions, determination of alimony, division of property, and award of child support are within the sound discretion of the trial court and will not be reversed except for palpable abuse. Taylor v. Taylor, 408 So.2d 117 (Ala.Civ.App. 1981).

We find no such abuse in this case, and it is affirmed.

Attorney’s fee on appeal in the amount of $600 is awarded to appellee.

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.


text:
    Barbara C. MILLER v. DIRECTOR, ALABAMA DEPARTMENT OF INDUSTRIAL RELATIONS.
    Civ. 4413.
    Court of Civil Appeals of Alabama.
    Nov. 7, 1984.

      Barbara C. Miller, Huntsville, pro se.
    George Coeoris, Gen. Counsel, and Craig A. Donley, Asst. Gen. Counsel, Montgomery, State of Ala. Dept, of Industrial Relations, for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation ease.

The claimant appeals from an order of the Madison County Circuit Court which found that the claimant was not entitled to unemployment compensation benefits because of her self employment during the period for which she claimed benefits.

The claimant was employed as a government contract administrator for SCI Systems, Inc. While so employed, she became licensed to practice law in the State of Alabama. With her employer’s permission, she maintained a part-time law practice in addition to her full-time job.

In August 1983, the claimant was involuntarily terminated from her position with SCI Systems, Inc. She continued her part-time legal practice, and applied for unemployment compensation benefits for her termination from her full-time position. She later returned to full-time employment as a government contract administrator when she obtained a job in Orlando, Florida.

The Department of Industrial Relations denied unemployment benefits to the claimant on the grounds that she was disqualified by law from receiving benefits. The claimant then filed suit in Madison County Circuit Court, where the trial judge upheld the Department’s decision. The relevant statute is § 25-4-78, Code of Alabama 1975, which reads in pertinent part, as follows:

“Disqualifications for benefits. An individual shall be disqualified for total or partial unemployment:
“(11) Self-employment. For any week in which he is self-employed and each week thereafter until he shall establish that he is no longer self-employed.”

The claimant contends on appeal that the definition and scope of “self-employed” has not been defined by the legislature or courts of Alabama and that it is a violation of the purpose of the Unemployment Compensation Act to deny benefits to a claimant on the basis of the claimant’s self-employment when the claimant would otherwise have been entitled to receive benefits.

The judiciary’s fundamental role, in the realm of statutory construction, is ascertaining and effectuating legislative intent. Dumas Brothers Manufacturing Co. v. Southern Guaranty Insurance, 431 So.2d 534 (Ala.1983). When the statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent must be given effect. Dumas, supra.

The statute in question here, § 25-4-78, by our observation, is distinct and unequivocal. It clearly states that an individual shall be disqualified from receiving unemployment compensation if that individual is self-employed during the time for which he claims benefits. That fact has been stipulated to by the parties. Any departure from or exception to the clear provisions of the statute is a legislative prerogative and not within the power of the judiciary.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Charles J. TOMLIN and Judy Catherine Tomlin v. Rodney C. BUSH.
    Civ. 4564.
    Court of Civil Appeals of Alabama.
    Nov. 7, 1984.

      James A. Yance and Richard E. Browning of Cunningham, Bounds, Yance, Crow-der & Brown, Mobile, for appellants.
    James W. Tarlton III of Hamilton, Butler, Riddick, Tarlton & Sullivan, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Charles Tomlin was injured on October 16, 1979, while employed by Kaiser Aluminum and Chemical Sales, Inc., at its plant on Pinto Island in Mobile, Alabama. In September of 1980, Tomlin filed suit in Mobile County Circuit Court against co-employee Bush for damages from negligent injury. His wife, Judy Catherine Tomlin, joined the suit as plaintiff, seeking damages for loss of consortium. Plaintiffs alleged among other things that Bush was acting in a managerial capacity at the Kaiser facility at the time of the injury and was responsible for furnishing a reasonably safe place to work and safe equipment with which to work.

On April 12, 1984, Bush filed a motion for summary judgment on the grounds that the action against him was prohibited by 33 U.S.C. § 933(i) of the Federal Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA). Bush’s motion was granted and Tomlin appeals.

Tomlin contends the LHWCA is not an exclusive remedy and that his action is not barred by 33 U.S.C. § 933(i).

In Fillinger v. Foster, 448 So.2d 321 (Ala.1984), the Supreme Court of Alabama held that such an action is barred by 33 U.S.C. § 933(i) stating:

“We are of the opinion that the LHWCA and the law of Alabama [on worker’s compensation] are in serious conflict as to the maintenance of co-employee suits, and because that is the case, we hold that the federal law will preempt state law.” (Citations omitted.)

Our review indicates that the facts and issues presented in this case are identical with those presented in Fillinger, and were determined therein adversely to the plaintiffs in this case. We therefore consider Fillinger to be dispositive of this appeal. The judgment of the circuit court is affirmed. United States Steel Corp. v. Goodwin, 267 Ala. 612, 613, 104 So.2d 333, 334 (1958).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Brenda M. WHITT v. Michael A. WHITT.
    Civ. 4272.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.
    Rehearing Denied Dec. 12, 1984.

      Norman J. Gale, Jr. of Clay, Massey & Gale, Mobile, for appellant.
    Joseph C. McCorquodale, III, Jackson, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce and child custody ease.

The parties were married for eleven years. Two sons, age seven and five, were born during the marriage. The father is an electrical engineer and holds a well-paid and responsible job. The mother is a college graduate and certified teacher, though she has not been employed for several years. The parties are in their early thirties.

The wife abruptly left the husband one night after the youngest child related an incident of play with his father. She carried the children with her and soon thereafter brought this action for divorce.

The wife initially stated incompatibility as grounds for the divorce. She subsequently amended her complaint to charge the husband with serious criminal offenses and mental disorder. There were pendente lite orders of restraint against the husband and supervised visitation requirements. As a result of the charges raised in the pleadings and preliminary hearings, the court ordered examinations of the parents and children by a court-appointed counselor and psychologist. After lengthy testimony (584 pages) of forty-three witnesses at two hearings the trial court entered its final judgment. That judgment granted a divorce because of incompatibility of the parties. It contained a property division and provided alimony to the wife. It granted primary custody of the two boys to the father, with specific but liberal visitation rights to the mother. It required continued psychotherapy of parents and children, with reports to be made to the court of progress.

The only issue brought to this court is whether the court abused its discretion in awarding custody of the children to the father. The standard controlling our consideration of that issue has been stated in various ways in every such case presented to our appellate courts. That standard is that the judgment of the trial court rendered after hearing the testimony of the witnesses, is reviewed on appeal with a presumption of correctness. The reviewing court may reverse that judgment only if after considering all the evidence in a light most favorable to it, it is determined that there is no reasonable support therein and that the judgment therefore is arbitrary and unjust. Clement v. Clement, 455 So.2d 46 (Ala.Civ.App.1984); Prentice v. Prentice, 440 So.2d 1091 (Ala.Civ.App. 1983).

With that standard guiding us, this court has carefully read every page of the pleadings, the testimony of the witnesses and the judgment of the court. We have kept in mind the fact that the trial judge saw and heard the witnesses as they testified. That fact is universally recognized as giving him a much greater advantage in giving weight and value to the testimony than this court, could have from reading the transcript of it. However, the reading of the testimony convinces this court that no service will be done to the parties, or especially to the children, to set it out here. The interested parties know what it was. To reiterate here would only give painful emphasis and publicity to it without benefit to anyone.

We deem it sufficient to opine that we are unable to find legal basis for reversing the judgment of the trial court. We refuse to do so with full knowledge that that court will continue its watchful jurisdiction over both the parties and the children. It has provided in its judgment the means of doing that. We therefore affirm that judgment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Mary Tidwell JUSTICE v. Winfred JUSTICE.
    Civ. 4361.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.
    Clifford W. Hardy, Jr., Bessemer, for appellant.
    Stephen R. Arnold, Birmingham, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The trial court, in pertinent part, divorced the parties, made a division of property, awarded the wife periodic alimony, and required the husband to pay child support.

The wife, through able counsel, appeals, contending that the trial court erred in the amount of periodic alimony and child support and in the division of property.

The dispositive issue on appeal is whether the trial court abused its discretion in the areas complained of by the wife.

There are numerous cases which hold that such matters in divorce cases are within the discretion of the trial court and that the trial court’s judgment will not be disturbed on appeal unless that judicial discretion is plainly and palpably abused. See Smith v. Smith, 429 So.2d 1080, 1081 (Ala.Civ.App.1983); Langford v. Langford, 441 So.2d 962, 964 (Ala.Civ.App.1983); Smitherman v. Smitherman, 437 So.2d 127, 128 (Ala.Civ.App.1983); and Masucci v. Masucci, 435 So.2d 120, 122 (Ala.Civ.App.1983).

Furthermore, the ore tenus rule applies where the trial court personally hears the evidence. Therefore, “[t]he judgment cannot be altered on appeal if it is supported by legal evidence unless the trial court’s decision was palpably wrong.” Smith v. Smith, 429 So.2d 1080, 1081 (Ala. Civ.App.1983).

We find it unnecessary to state in detail the pertinent facts because of the numerous cases on the same legal subjects. As stated in our earlier decision, Smith v. Smith, 429 So.2d 1080, 1081 (Ala.Civ.App. 1983), “[t]his court pretermits a summary of the evidence. Little or nothing would be contributed to the law by stating the pertinent facts.” We do note that the wife was awarded $800 per month for her support and the support of the child. Apparently, $600 of the $800 is periodic alimony and $200 is child support. Additionally, the wife was awarded a home with a value in excess of $100,000. The wife is the beneficiary of a $100,000 life insurance policy on the husband’s life, the premium to be paid by the husband. The husband is a salaried employee, earning approximately $55,000 per year.

After reviewing the testimony and the entire record, we find that the trial court’s action does not constitute a plain and palpable abuse of judicial discretion.

For this court to reverse would be to substitute our judgment for that of the trial court. This the law does not permit. Smith v. Smith, 429 So.2d 1080, 1081 (Ala.Civ.App.1983).

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Helen Ruth SCOTT v. Walter Hugh SCOTT.
    Civ. 4400-X.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.

      Maurice S. Bell, Montgomery, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The husband was ordered to pay to the wife $180 each month as periodic alimony. Upon appeal, the wife's only issue is whether the trial court erred in the amount of the award. The contested evidentiary trial was conducted ore tenus before the trial court. In viewing the record with the attendant presumptions which are accorded to the trial court’s action, the following evidence is pertinently revealed upon the issue before us.

The parties married in 1935. A daughter was born to them in 1951 and a son in 1953. The husband entered service with the United States Air Force in 1942 and retired in 1962 as a lieutenant colonel. From 1958 until 1967 they lived in the same household but, except for a few isolated incidents, did not exercise their conjugal rights. After the husband’s retirement they lived in Alabama until 1967, when their final separation occurred because of the husband’s moving to Arizona. In 1969 the husband obtained a divorce in Mexico. In the present case the trial court declared that the Mexican decree is invalid and is not entitled to be granted full faith and credit. From 1969 to 1975 the husband paid child support to the wife of $285 to $300 a month.

The wife is presently sixty-nine years of age, and she is in fair health. The husband is seventy-two and enjoys excellent health.

The husband draws net monthly military retirement of $1,025, and social security of $413. His itemized monthly expenses and debt payments total $1,470. He remarried in 1970.

The sum of the wife’s listed monthly expenditures was $630. She owes no debts. Her income each month consists of social security of $372 and teacher retirement of $119. She testified that if her military dependent’s identification card is restored to her her food through the commissary will cost her about twenty percent less than from present sources. She further gave her opinion that, over and above her income, she would need as periodic alimony, “Well, two or three hundred dollars a month and I could live very well and not have to worry, you know.”

The trial court divorced the parties and, as to the present issue, ordered the husband to pay $180 per month to the wife as periodic alimony, and the wife’s military dependent’s identification card was ordered restored to her.

Under the ore tenus rule the judgment of the trial court is presumed to be factually correct. Thus, the award of alimony to the wife must be affirmed if it was supported by credible evidence unless it appears that the trial court was palpably wrong. Also, the award and amount of periodic alimony are matters which lie within the discretion of the trial court and may be reversed upon an appeal only for a clear abuse of the trial court’s judicial discretion. Roberts v. Roberts, 450 So.2d 137 (Ala.Civ.App.1984); Casey v. Casey, 421 So.2d 128 (Ala.Civ.App.1982).

Here, the wife’s itemized expenses amounted to $630 and her income, including periodic alimony, now totals $671 each month. Her enumerated expenses will be exceeded by the total receipts by about $40 each month, not considering any savings to her which might be occasioned by her identification card. The wife testified that she needed from $200 to $300 each month as alimony in order to live very well without worry and the award was for $180. The periodic alimony, itemized expenses, and debt payments of the husband total $1,650 monthly, and his net income from all sources is $1,438.

The evidence supports the amount of the alimony award. The trial court was not palpably wrong, and we discern no abuse of discretion. We affirm.

The husband filed a cross-appeal; however, it is hereby dismissed because of his failure to file a brief in support thereof. Rule 2(a)(2)(A), Alabama Rules of Appellate Procedure.

The wife’s request for an attorney’s fee on appeal is denied.

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. CROSS-APPEAL DISMISSED.

All the Judges concur.


text:
    MORGAN COUNTY DEPARTMENT OF PENSIONS AND SECURITY ex rel. Cindy Y. RYAN v. Devon KELSO.
    Civ. 4407.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.
    Charles B. Langham, Decatur, for appellant.

      Miles T. Powell, Decatur, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a paternity case.

The Morgan County Department of Pensions and Security (D.P.S.) appealed to the circuit court from a ruling of the district court, which sustained the defendant Kel-so’s plea of the statute of limitations.

The following pertinent facts appear of record.

On August 10, 1983, Cindy Ryan filed an action under the paternity statute, which sought to establish that Kelso was the father of her daughter, who was born on July 21, 1978. Kelso’s last motion to dismiss was based upon the ground that the suit against him was barred by the five-year statute of limitation period as established by § 26-12-7, Code 1975. The circuit court granted Kelso’s motion to dismiss on March 16, 1984. No evidence was taken or presented to the circuit court.

D.P.S. moved that the March 16, 1984, order be set aside, contending that § 26-12-7 violates the equal protection and due process clauses of the constitutions of the United States and of Alabama. That motion of D.P.S. was overruled and D.P.S. ex rel. Cindy Ryan duly appealed to this court.

Under our recent decision in State v. Burks, 454 So.2d 1038 (Ala.Civ.App.1984), the five-year statute of limitations applies. That limitation upon paternity actions is as follows: “Proceedings under this chapter shall not be brought after the lapse of five years from the birth of the child, unless, in the meantime, the reputed father has legally acknowledged paternity or has supported said child.” § 26-12-7, Code 1975.

According to the mother’s affidavit, Kel-so has never acknowledged his paternity of the child to the mother nor has he ever supported the child.

Since this case does not fall within the exceptions or saving provisions which toll the running of the period of limitation, this paternity action is barred unless D.P.S. is correct in its contention that the five-year statute of limitations is unconstitutional under the decisions of the Supreme Court of the United States in Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), and Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982).

Both of those eases relied upon two related requirements before a statute of limitations which governs suits to legally identify the natural father of illegitimate children may be deemed to be constitutional. To meet constitutional muster in that regard,

“the period for obtaining paternal support has to be long enough to provide a reasonable opportunity for those with an interest in illegitimate children to bring suit on their behalf; and, any time limit on that opportunity has to be substantially related to the State’s interest in preventing the litigation of stale or fraudulent claims.”

Pickett v. Brown, supra, 103 S.Ct. at 2204. The factors are enumerated in Mills and Pickett, which make it unreasonable to require that a paternity suit be brought within one or two years of a child’s birth. Those factors are greatly diluted or totally dissipated by the extension of time to five years, which is a very long period of time. A statute which grants a total of 1,825 calendar days, being approximately 1,200 or more non-holiday workdays, within which to institute a paternity action certainly provides ample opportunity for illegitimate children, the mother or any other authorized person, firm, corporation or governmental agency to file for the paternal support of those children. The five-year period of limitation is not so restrictive as to effectively extinguish the granted paternity proceedings. As any experienced trial judge or trial attorney can verify, the human memory, after the expiration of five years, becomes blunted, uncertain, hazy and, in many instances, totally forgets a particular matter or conversation or important details concerning it. That type of evidence has been, presently is, and can be in the future most important and decisive in the trial of paternity cases. Vital witnesses, and other evidence, become inaccessible and unavailable through the passage of time. While great scientific studies have been made in blood testing in paternity cases, we are aware of no statute nor court opinion which dictates the replacement of the judge and jury with the laboratory technician in reaching a final verdict and legal determination as to the paternity of a particular child. Blood group testing results constitute important evidence, but no legal presumption arises therefrom; and, if other competent evidence conflicts therewith, an issue of fact is presented for determination by the trier of facts in a particular case. While Alabama tolls most actions during a child’s minority, § 6-2-8(a), Code 1975, the inapplicability of that tolling provision to a paternity action does not alone require that the five-year limitation period be declared to be invalid.

The five-year statute of limitations does provide illegitimate children, and those interested in them, with ample opportunity to obtain paternal support and is substantially related to the legitimate state interest in preventing the litigation of stale or fraudulent claims. It, therefore, is constitutional and the judgment of the circuit court is affirmed.

Able counsel for D.P.S. has cited many statistics and some evidence in his excellent brief which are totally outside of the appeal record. We are prohibited from considering those extraneous matters. Roberts v. Roberts, 424 So.2d 644 (Ala.Civ. App.1982).

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.

      , The Alabama Uniform Parentage Act's provisions as to when an action may be brought to determine parentage are codified in code section 26-17-6. The uniform act varies from and repeals § 26-12-7. The new statute is not applicable to the present case.


author: BRADLEY, Judge.

text:
    Sylvia P. ROSE v. Jerry ROSE.
    Civ. 4434.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.

      W.A. Kimbrough, Jr., of Turner, Onder-donk &' Kimbrough, Mobile, for appellant.
    A1 Seale and Frances R. Niccolai, Mobile, for appellee.
   BRADLEY, Judge.

This is an appeal from an order of the Circuit Court of Mobile County, granting the husband’s petition to discontinue alimony payments.

The husband and wife were divorced on July 24, 1980. The wife was awarded $50 monthly alimony to be paid from the husband’s social security, such payments to terminate when the wife began drawing her social security benefits. The trial court also ordered the husband to pay the wife as alimony twenty-five percent of his net take-home pay if and when he became gainfully employed. See 395 So.2d 1038 (Ala.Civ. App.1981). The husband became gainfully employed in January 1982. Subsequently, the circuit court, upon the wife’s motion to enforce the judgment, ordered that the husband pay the wife $300 per month as alimony, such sum representing twenty-five percent of the husband’s net monthly income. See 440 So.2d 566 (Ala.Civ.App.1983). On April 4, 1984 the husband filed a petition in the circuit court seeking termination of the alimony payments. After an ore tenus hearing the trial court granted the husband’s petition, ordering that all future alimony payments be terminated. The wife appeals to this court.

The dispositive issue on appeal is whether the trial court abused its discretion by modifying the prior decree for alimony so that husband no longer must pay the wife monthly alimony.

Where the court grants a petition for modification of an alimony award after an ore tenus hearing, it is presumed correct. May v. May, 441 So.2d 945 (Ala.Civ.App.1983). Thus, the trial court’s modification will not be reversed on appeal unless the court’s judgment was plainly and palpably wrong. Prentice v. Prentice, 440 So.2d 1091 (Ala.Civ.App.1983).

A trial court may modify an alimony award where the party seeking the modification shows a material change of circumstances since the entry of the last decree awarding alimony. Sanders v. Sanders, 342 So.2d 380 (Ala.Civ.App.1977). In determining whether to grant a petition to modify a divorce decree, the court may consider the movant’s current financial problems, future prospects, and the needs of the former spouse. Lamar v. Lamar, 429 So.2d 1055 (Ala.Civ.App.1982).

Furthermore, there must be evidence of a change in the financial status of the movant in order to grant a modification, even where the health of the movant has deteriorated. Steele v. Steele, 277 Ala. 13, 166 So.2d 790 (1964).

We find that the husband provided substantial testimony proving that he had suffered a material change in his financial status. He testified that he was seventy-four years old and in very bad health, battling a heart condition and diabetes. He, therefore, is unable to work and to pay the rent at his place of business. Furthermore, his business’s phone service and electricity have been shut off, and the business is on the brink of bankruptcy. His only source of income is from social security and disability benefits amounting to $700 a month.

The wife contends, however, that her former husband’s financial situation had improved since the last decree. Therefore, she urges that the court’s modification was error. We disagree.

A review of the record reveals that the husband is now receiving $8.00 more monthly from social security; however, he is no longer employed, and the former wife is receiving social security benefits. Under the former decrees of the court, husband was to pay $300 a month in alimony only if he was gainfully employed. He is no longer employed. Further, the $50 a month payable to wife from husband’s social security was to cease when she reached age sixty-five and began receiving her own social security benefits. Wife has now reached sixty-five years of age.

The evidence supports the alimony modification order of the trial court, and its judgment is affirmed.

The wife’s request for an attorney’s fee is denied.

AFFIRMED.

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


text:
    Edna Pearl ANDERSON v. Mary Nixon CROUCH.
    Civ. 4566.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.
    P. Michael Cole of Patton, Latham, Legge & Cole, Athens, for appellant.
    T. Schram Woodroof of Woodroof & Woodroof, Athens, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This automobile accident personal injury case was recently transferred to this court by the Supreme Court.

The plaintiff, Mrs. Anderson, sought damages from the defendant for the plaintiff’s personal injuries which proximately resulted from the defendant’s negligence or waritonness in causing or allowing her truck to strike the plaintiff. A jury trial ensued. The trial court charged the jury as to the law of negligence but not as to wantonness. The jury returned a verdict for the plaintiff for $2,500, and the circuit court entered a final judgment pursuant to the jury’s verdict.

The sole issue for our decision is whether the trial court erred in not submitting the case to the jury upon the theory of wantonness. We limit our summary of the evidence to that issue. After a review and study of the entire record, the following is pertinently revealed.

Between the National Guard Armory-building in Athens and one of its parking lots, one strand of chain is strung between approximately two-foot high pipe posts. The chain and posts are situated in a grass area apparently between one and two feet from the paved parking area. The chain and building are parallel to each other and photographs indicate that they are about ten feet apart. A small ditch is situated immediately inside of the chain.

On September 7, 1983, the plaintiff was walking parallel to' the building in a southerly direction about mid-way between the chain and the building, in front of parking spaces in the parking lot, when she was struck on her right leg by the left front tip of the bumper of the defendant’s 1966 pickup truck, which was traveling in a westerly direction.

The defendant had experienced no prior trouble with the brakes to her truck. The brake linings had been replaced in the truck in 1980, at which time the master cylinder and brakes were checked. The defendant added brake fluid on an infrequent basis as needed, but the brake fluid was not low on the date of the accident.

The defendant experienced no brake difficulties when driving to the armory on September 7, but, when she attempted to park in a parking space, she pushed the brake pedal to stop and it went to the floorboard. She then placed the transmission in reverse and backed out of the parking space a “little,” but the brakes failed again. When it appeared to her that she would back into parked vehicles, she shifted the transmission into drive and again re-entered the parking space. Her brakes once more failed to function; the truck would not stop and she hit the last metal post in front of that parking space, went into the ditch and struck the plaintiff. The plaintiff, who had almost walked past that parking space, was not aware that she was in any danger until the truck was an arm’s length from her. The defendant first saw the plaintiff when the defendant started down the ditch bank, which was just “a second or two” before she struck the plaintiff. The defendant stated that the brake pedal was still on the floorboard when she got out of the truck. When the police examined the truck, the brake pedal was up and the brakes held for them. The defendant did not think of using her parking brake and did not sound her horn nor swerve the truck to her right after seeing the plaintiff. The defendant testified that the plaintiff did nothing to contribute to the accident, that she was simply walking.

Mr. Nixon, the defendant’s brother, testified that he performed most of the mechanical repairs to the defendant’s truck. He checked the truck brakes after the accident and they failed to stop the truck due to a defective master brake cylinder, which he replaced. Thereafter, the brakes performed in an excellent manner.

The plaintiff argues that four items of evidence constituted at least a scintilla of evidence that the defendant was guilty of wantonness. Those matters were that the defendant did not keep a reasonable lookout for people who might have been in the pathway of her truck, that the defendant did not swerve to the right in an effort to miss the plaintiff, that the defendant did not sound her horn, and that she did not attempt to use the parking brake in an effort to stop the truck.

All of the various definitions of wantonness which are quoted by the plaintiff are set forth in one of her cited cases as follows:

“ ‘Wantonness’ is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97; Tucker v. Cox, 282 Ala. 489, 213 So.2d 222; Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 365, 162 So.2d 455. Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster. Lewis v. Zell, 279 Ala.33, 181 So.2d 101; Graves v. Wildsmith, 278 Ala. 228,177 So.2d 448. Wantonness may arise after discovery of actual peril by conscious failure to use preventive means at hand. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13.”

Kilcrease v. Harris, 288 Ala. 245, 251, 259 So.2d 797, 801 (1972).

We do not find that the defendant consciously did something or failed to do anything being conscious that injury would probably result. There was no evidence of any conscious disregard of known conditions of danger or that the defendant consciously failed to use preventive means at hand. In short, we are in total agreement with the holding of the trial court that the evidence was inadequate to authorize the submission of the wantonness issue to the jury. Accordingly, we affirm.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge. WRIGHT, Presiding Judge.

text:
    Emily Calisse BRASWELL v. Bobby Gene BRASWELL.
    Civ. 4124.
    Court of Civil Appeals of Alabama.
    Nov. 21, 1984.

      John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    Don P. Bennett of Herring & Bennett, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by appellant-mother from a judgment of the Circuit Court of Houston County modifying an earlier judgment and awarding custody of the parties’ minor child to the appellee-father.

The parties hereto were divorced, after trial, on December 10, 1982, on the grounds of incompatibility. The mother was awarded custody of the minor child, Brandi, age two, with the father given visitation rights for the months of January, May and September until the child reaches school age, then the months of June and July. Father was to pay $50 per week as child support and $20 per week when he has visitation privileges.

On September 23, 1983, the father filed a motion to modify the judgment and award him custody of Brandi, alleging that she was subjected to an immoral and improper environment in that the mother was cohabiting with a man to whom she was not married. A temporary ex parte order granting custody to the father was entered on September 29, 1983. The mother was served by registered mail, at her home in Houston, Texas, on September 30, 1983. A hearing on the merits of the case was held on October 13, 1983, and on October 20, 1983, a judgment modifying the original judgment and awarding custody of Brandi to the father was entered. The mother appeals.

The mother has listed six issues on appeal. The first three issues presented all relate to pre-judgment actions of the trial court. In view of our subsequent ruling, we discern no purpose in discussing those three issues. However, we will state that their dependence upon the Uniform Child Custody Jurisdiction Act (UCCJA) and the case of Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ.App.1981), is misplaced. This case is not related in any way to the provisions of the UCCJA. This is merely a petition for modification of a prior divorce case in a court with continuing jurisdiction over the parties and the child.

We additionally comment that the mother clearly submitted herself to the jurisdiction of the court and participated in the proceedings without objection. Thus, without conceding any error therein, we find she cannot now complain of lack of a fair trial.

The only issue presented that is legally sufficient for reversal is that the evidence fails to show a change of circumstances necessary to modify a decree of custody entered some nine months previously. It is evident that the only basis for the petition presented is the allegation that the mother had been living with a man to whom she was not married, while the child was in her custody. The father showed that on one occasion, when he returned the child to the home of the mother, he was told there was a man asleep there. On other occasions he called the home during the daytime, and a man often answered the phone. The man indicated is now the husband of the mother. Any other information concerning the acts of the mother came to the father as hearsay from the three-year-old child. The evidence is undisputed that the child has been well cared for by the mother and has been healthy and happy while in her custody. The only legal evidence presented as to alleged immoral acts was the admission of the mother that she began living with her future husband at a time when the child was in Alabama with the father. She later married while the child was held in Alabama under the ex parte order.

Our law is clear that one bringing a petition for modification of a prior order as to child custody has the burden of proving that a material change in circumstances affecting the child’s best interest has occurred since the prior order. In order to overcome the rule of repose accompanying the prior order, the evidence of a change in circumstances must be so substantial as to disclose an obvious and overwhelming necessity for change of custody. Munchus v. Munchus, 412 So.2d 794 (Ala.Civ.App.1982); Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). Put another way, in order to overcome the inherently disruptive effect of uprooting the child, there must be evidence to show that the child’s best interests are promoted by the change in custody. McLendon v. McLendon, 455 So.2d 861 (Ala.Civ.App.1984); rev’d, 455 So.2d 863 (Ala.1984).

The evidence in this ease convinces this court that the showing of no more than pre-nuptial indiscreet conduct between the mother and her present husband out of the presence of the child, is insufficient to sustain petitioner’s burden of proof. We have said a parent will not be denied custody for every act of indiscretion or immorality. Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210 (1975).

For failure of the evidence to indicate a material change of circumstances affecting the best interest of the child and that removal of custody from the mother will promote the best interest of the child, the presumption of correctness of the judgment of the trial court is overcome. That judgment is therefore reversed and set aside. The original judgment of December 10, 1982, is ordered re-instated.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

OPINION AMENDED

WRIGHT, Presiding Judge.

The original opinion herein is hereby amended by adding thereto an award of $500 in favor of appellant, Emily Calisse Braswell, and against the husband, Bobby Gene Braswell, as an attorney fee on appeal.

BRADLEY and HOLMES, JJ., concur.


text:
    U-J CHEVROLET COMPANY, INC. v. William Randall MARCUS and Danny Miller.
    Civ. 4212-X.
    Court of Civil Appeals of Alabama.
    Nov. 21, 1984.

      Joseph C. Sullivan, Jr. of Hamilton, Butler, Riddick, Tarlton & Sullivan, Mobile, for appellant.
    Richard A. Wright of Stout & Roebuck, Mobile, for appellees.
   ROBERT M. PARKER, Retired Circuit Judge.

Appellant appeals from judgment under an action for breach of warranty of title.

Marcus and Miller were in the landscaping business as M & M Services. On January 26, 1981, they purchased a 1976 Chevrolet pickup truck, with dump bed, from U-J Chevrolet, Inc. for the sum of $2,300. They knew the salesman and he knew the business in which they were engaged. The truck was financed at a bank and one month later was refinanced along with a stump grinder. U-J Chevrolet, Inc. was unable to deliver title to the truck until December 1982. The truck came into possession of U-J Chevrolet by being abandoned for its repair bill. There was a lien on the vehicle by the prior owner, which was satisfied, but the prior lienholder held the title for payment of some forty-nine dollars in late charges. Appellees used the truck for at least six months, in which they received two tickets for expired tag and allege that they ceased to use the truck on admonition of the traffic court judge to park the truck until they could get a tag. The truck was repossessed in October 1982 for non-payment, and a deficiency judgment in the sum of $5,000 was rendered against appellees in favor of the bank on both pieces of equipment.

Appellees sued appellant for breach of warranty of title and fraud.

Appellant contends on appeal that the evidence is insufficient to sustain the judgment of $3,500 awarded to the appellees. Appellant alleges the trial court ruled out fraud and stated, “the profit thing in this thing is so nebulous it’s just hard for me to swallow that,” and remaining evidence is insufficient to award $3,500 in damages.

Marcus and Miller purchased and had used the truck for a period of time without any notice' of defective title. There is some evidence that could reasonably imply appel-lees lost business, use of the truck, the truck itself, damaged a smaller truck used as a substitute, incurred subcontracting expenses and the deficiency judgment due to failure to timely deliver title.

The casting of a substantial shadow over a purchaser’s title to an automobile is sufficient to violate a warranty of good title, and the use of the vehicle for a period of time after sale without any notice of a defective title constitutes “special circumstances” and takes the case out of the “time and acceptance” provisions of § 7-2-714(2), Ala.Code (1975). City Car Sales, Inc. v. McAlpin, 380 So.2d 865 (Ala.Civ.App.1979); Ricklefs v. Clemens, 216 Kan. 128, 531 P.2d 94 (1975). The damages for breach of warranty are specified by the code and are controlling. §§ 7-2-714 and 7-2-715, Ala.Code (1975). Where the trial court takes ore tenus evidence without a jury, findings of fact based upon competent evidence are presumed to be correct and will not be disturbed on appeal if supported by evidence or any reasonable inference therefrom unless they are plainly and palpably erroneous or manifestly unjust. Drill Parts & Service Co. v. Joy Manufacturing Co., 439 So.2d 43 (Ala.1983). Upon a careful consideration of the matter, we feel satisfied that the trial court, from the evidence, had a basis upon which the amount of appellees’ loss could be determined.

The rule that damages, if uncertain, cannot be recovered applies to their nature, and not to their extent. If the damage is certain, the fact that the extent is uncertain does not prevent a recovery. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931).

Appellees’ cross-appeal alleges that the trial court erred in failing to award punitive damages on the question of fraud and failure to award damages for lost profits.

Punitive damages are only allowed where a material misrepresentation is made knowingly and falsely, was relied on by the injured party, and the fraud was gross, malicious, oppressive, and committed with an intent to injure. Huntsville Dodge, Inc. v. Furnas, 361 So.2d 585 (Ala.Civ.App.1978). There is no such evidence in this case.

The record is such that it is difficult to determine if the trial court completely ruled out damages for loss of profits. Where the quantum of damages is not susceptible of exact pecuniary estimate, the court on appeal will not set aside the verdict because in its opinion the jury gave too much or too little. Liles v. Montgomery Traction Co., 7 Ala.App. 537, 61 So. 480 (Ala.Ct.App.1913). Where testimony is presented ore tenus, the trial court’s findings and conclusions thereon are given the same weight as the verdict of a jury and will not be disturbed unless palpably wrong. Harrelson v. Glisson, 424 So.2d 591 (Ala.1982). A verdict as to damages is favored with presumptions of correctness, and a reviewing court will not substitute its judgment for that of trier of facts. Farmer v. Strother, 423 So.2d 252 (Ala.Civ.App.1982). We cannot say the trial court erred in awarding the amount of damages.

This case is due to be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as 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.

BRADLEY and HOLMES, JJ., concur.

WRIGHT, P.J., recuses himself.


text:
    H.R. SHOOK v. VERTAGREEN CREDIT UNION.
    Civ. 4355.
    Court of Civil Appeals of Alabama.
    Nov. 21, 1984.

      Bryce U. Graham, Tuscumbia, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a promissory note case.

The credit union instituted this civil action through a simple promissory note count against the maker, Mr. Shook. The defendant’s answer was a denial of the allegations of the complaint. After hearing some testimony upon the issue, the trial court granted a summary judgment in favor of the credit union. The defendant duly appealed and is represented in this court by able counsel. The credit union has not favored this court with a brief.

It was admitted by the defendant that he signed the note and that he has not paid it. He contends that he was physically disabled and that disability insurance should have paid the amount due upon the note. The premiums for the insurance were totally paid by the credit union. The policy was a master policy that covers all loans made by them. That coverage was provided by the management of the credit union to all credit union members without charge to the members. The defendant never filed a proof of loss or a claim against that policy in the nature of a physician’s statement regarding his disability and the extent of it. The parties disagree as to their conception of the coverage provisions of the policy of insurance, which was not introduced as evidence before the trial court. It is not disputed between the parties, however, that the defendant was, at least, a third party beneficiary of the insurance policy.

With relation to the disability insurance issue, this matter almost parallels the case of Barclift’s of Russellville, Inc. v. Etheredge, 385 So.2d 1324 (Ala.Civ.App.1980), wherein the following was stated:

“The insurance company was not a party to this civil action. The fact, if it be a fact, that the insurer was liable to the defendant for the outstanding balance due upon the account, but did not pay it, would not, as such, be a valid reason to prevent the plaintiff from recovery of a judgment against the defendant. Such a judgment would not bar any future litigation between the insured and the insurer upon the policy of insurance.”

385 So.2d at 1325.

In actuality, Mr. Shook’s dispute is with the insurer as to whether he is disabled to the extent that the policy should pay the balance due upon the note. However, regarding this litigation between the defendant and the credit union, there was no controversy over the note and its non-payment. Accordingly, the trial court correctly granted the credit union’s motion for a summary judgment.

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 § 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:
    SONNY LIVINGSTON BAIL BONDS, INC. v. STATE of Alabama.
    Civ. 4386.
    Court of Civil Appeals of Alabama.
    Nov. 21, 1984.
    John T. Kirk, Montgomery, for appellant. No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal concerns the validity of the final forfeiture of an appearance bond in a felony prosecution.

On April 1, 1983, the defendant Castle-berry was indicted for a felony offense. Her bond was set at $1,500. The bond was made on April 5, 1983, with the appellant bail bond corporation (the company) being her surety. The pertinent provisions of the bond were that the State of Alabama would be paid $1,500, unless Castleberry appeared to answer the particular indictment against her at the April 11, 1983 term of the circuit court, “and from day to day thereof and from Term to Term thereafter until discharged by law.” The defendant filed a written waiver of formal arraignment. On August 16, 1983, she pleaded guilty to, and was adjudged guilty of, the felony. The case against her was continued for sentencing to September 9, 1983, at which time Castleberry did not appear and her bond was conditionally forfeited. After proper notice was served upon it, the forfeiture was made final against the surety. The company filed a motion to reconsider or for a new trial which was denied by the trial court. This appeal by the surety timely ensued.

The company asserts that the sureties on a bail bond have completed their obligation when the defendant timely appears in the proper court and either pleads guilty or is found guilty. We disagree and affirm.

The bond bound the company for the appearance of Castleberry “until discharged by law.” An undertaking of bail binds the parties for the appearance of the defendant “until he is discharged by law.” § 15-13-60, Code of Alabama 1975.

At this time, the company cannot escape the consequences of its undertaking. The defendant has not yet been discharged by law. The sentence of the law was not pronounced upon the defendant and, until that occurs, the surety has control over the custody of their principal and can be held responsible. Livingston Bail Bonds, Inc. v. State, 450 So.2d 129 (Ala.Civ.App.1984). In comparing that case with the present case, there are no material differences in either the facts or in the applicable law. The bonds in each case assured the appearance of the defendant, “until discharged by law to answer the indictment.” In both cases the defendant pleaded guilty but failed to appear at a subsequent sentencing hearing. That decision is determinative of this appeal, especially where it stated that the defendant, “having failed to appear in court for sentencing, probation hearing, and restitution hearing as ordered, the trial court correctly forfeited his bond.” 450 So.2d at 130. In short, the two cases are substantially on all fours.

The trial court correctly forfeited the appearance bond and the judgment of the circuit court is 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:
    John GIBSON and Mary Gibson v. Tommy NIX and Joy Nix.
    Civ. 4405.
    Court of Civil Appeals of Alabama.
    Nov. 21, 1984.
    Jerry Guyton of Vinson & Guyton, Hamilton, for appellants.
    C. Harry Green, Hamilton, for appellees.
   WRIGHT, Presiding Judge.

This is a case involving a contract for the sale of land. The plaintiffs below (purchasers) appeal from the final judgment of the trial court, claiming that the damages which they were awarded by the trial court were inadequate.

The parties apparently entered into an oral agreement whereby the defendants would convey to the plaintiffs a house and lot for $46,000. The parties went to a local bank to draw up an agreement, but for some reason never signed it. Also, for another reason, which is not clear from the record, one-half acre of the one-acre lot upon which the house was located was sold separately to the plaintiffs for $1,000. This agreement was put into writing and signed by the parties. There was an understanding between the parties that if the sale of the house and other one-half acre did not go through, the plaintiffs would reconvey the $1,000 lot to the defendants.

A few weeks after the initial transaction, the plaintiffs also gave the defendants a $4,000 check.

The sale failed to go through, due to the inability of the plaintiffs to secure a VA loan. Subsequently, the plaintiffs asked the defendants to return their money. The defendants refused to do so, and the plaintiffs filed a claim against the defendants for $5,000.

The trial court, sitting ore tenus, entered an order awarding the plaintiffs $1,000. There was much conflicting testimony offered on the issue of what the $4,000 check was for. The defendants contended it was earnest money and therefore should be forfeited, and the plaintiffs contended that it was a down payment on a conditional sale where the condition did not occur, and therefore should be refunded. The trial court, after listening to the testimony, apparently agreed with the defendants on the nature of the $4,000 check and the plaintiffs on the nature of the $1,000 transaction for the lot. The plaintiffs filed a motion for a new trial, alleging that the damages awarded to them were inadequate. The trial court denied the motion.

On appeal, we are confronted with two problems in any attempt to resolve this case in the plaintiffs’ favor. The first problem is that the findings of a trial court, sitting ore tenus, are presumed correct and will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. Chaffin v. Hall, 439 So.2d 67 (Ala.1983). This presumption of correctness of the judgment rendered ore tenus is strengthened by the denial of the plaintiffs’ motion for a new trial. Jones v. LeFlore, 421 So.2d 1287 (Ala.Civ.App.1982).

The second obstacle we face in considering the plaintiffs’ arguments on appeal is that the only citation of authority or precedent in the plaintiff’s brief is one case involving the ore tenus rule. There is no authority given for the plaintiffs’ contentions that the damages award was inadequate. An appellant’s contentions must be supported by authority and the reasons for the contentions. Blair v. York Engineering Co., 380 So.2d 878 (Ala.Civ.App.1980); Rule 28, A.R.A.P. Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all of the legal research for an appellant. Shory v. Peavy, 431 So.2d 1319 (Ala. Civ.App.1983). Indeed, we are required to affirm this case, .because the brief does not contain the citation of any authority in support of the argument made in the brief. Neal v. First Alabama Bank of Huntsville, 440 So.2d 1111 (Ala.Civ.App.1983). Therefore, the case is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Susan K. WILLIAMS v. STATE DEPARTMENT OF PENSIONS AND SECURITY. (In the Matter of Susan Marie WILLIAMS and Louis Otto Williams, minor children).
    Civ. 4438.
    Court of Civil Appeals of Alabama.
    Nov. 21, 1984.
    Pamela E. Nail, Cullman, for appellant.
    Mary Lee Stapp and John Coleman Campbell, Asst. Attys. Gen., State of Alabama Dept, of Pensions and Sec., for appel-lee.
   HOLMES, Judge.

This is a termination of parental rights case.

The District Court of Cullman County, Juvenile Division, ordered the permanent termination of all parental rights of the mother and awarded the custody of the two children to the State of Alabama Department of Pensions and Security (DPS).

From this decree the mother, through able counsel, appeals, contending in the main that the evidence does not support the trial court’s action in terminating her parental rights.. We do not agree and affirm the trial court’s action.

Viewing the testimony with the attendant presumptions of correctness, we find the following:

Susan Marie and Louis Otto, the two children involved, were at the time of the hearing four years old and three years old, respectively. Each child was fathered by a man not married to the mother.

DPS first became aware of Ms. Williams’s children in 1981 when the youngest child was admitted to the hospital suffering from severe dehydration and malnourishment. The court granted temporary custody of both children to DPS in February of 1981, and they have remained in a foster home since that time.

There was testimony that the mother, who is thirty years old, is mentally handicapped. At different times, she has been a resident patient at the Partlow State School, Bryce State Hospital, and Lurleen Wallace Developmental Center. A psychological evaluation of her mental abilities suggested that her I.Q. was fifty-four.

The mother is able to read and write very little. She completed only the fourth grade in school, at which she was indefinitely suspended because of her uncontrollable and dangerous behavior.

The mother testified that she had never been employed and receives only a small monthly income for her disability.

As stated, the mother was not married to the children’s father. In fact, she testified that both children had different fathers. At the time of the hearing, the mother was living with a sixty-one-year-old man in a house that has no running water or inside bathroom.

DPS has made efforts to help the mother regain custody of the children. The agency suggested that she continue her mental health counseling and keep taking the prescribed medication for her mental condition. There was evidence that she failed to do either.

DPS also suggested that the mother should live in a permanent location rather than move from home to home. Evidence was presented that the mother has no permanent residence and has moved several times since 1981. Many times DPS did not know where the mother was living.

Additionally, there was testimony that the mother was arrested several times on alcohol and assault related charges. In 1981, she married a physically and mentally handicapped man. There was evidence that later that year she beat her husband to a point that he required hospitalization. The two were divorced in September of 1982.

The children have both been diagnosed as mentally retarded. The youngest child’s eyes are severely crossed and he has difficulty eating his food. The oldest child has an enlarged liver and refuses to permit her bowels to move. Both suffer from severe allergies and require constant attention because of their physical and mental conditions.

On April 5, 1984, DPS filed a petition for termination of parental rights and for permanent custody of both children. The petition was granted on July 3, 1984, and from this decree the mother appeals.

At this point we note, as in other cases heard ore terms, the decision of the trial court is presumed correct and will not be set aside unless it is so contrary to the evidence as to be plainly and palpably wrong. Stone v. State, Department of Pensions and Security, 421 So.2d 129 (Ala.Civ.App.1982).

In every case of this nature, the controlling consideration is the best interests of the child. In order to determine the child’s best interests, the trial court may examine the conduct and activities of the parent. In re Shivers, 440 So.2d 1081 (Ala.Civ.App.1983).

In view of the facts as set out above, the mother’s mental ability, her past behavior, her lack of a permanent residence and employment, her failure to improve her “parenting” skills, and the mental and physical condition of the children, this court cannot say that the trial court was plainly and palpably wrong in terminating the parental rights of the mother and awarding custody to the Department of Pensions and Security. This seems to be clearly within the best interests of the children. See Handley v. State Department of Pensions and Security, 455 So.2d 887 (Ala.Civ.App.1984).

Put another way, as we stated in Hand-ley, the judgment of the trial court in this case is supported by clear and convincing evidence and conforms to the principles stated by this court in the cases of Glover v. Alabama Department of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981), and Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.), writ quashed, 374 So.2d 1378 (Ala.1979).

The mother additionally claims that the trial court erred in admitting evidence of her arrests. This contention is without merit.

The case cited by the mother in support of her contention is Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967), which addresses the impeachment of witnesses.

Here, the arrest testimony was not introduced to impeach the mother’s testimony, but was used to show her past behavior so as to determine the best interests of the children. In a juvenile proceeding, the court has a wide latitude to decide which evidence it will consider. In re Shivers, 440 So.2d 1081 (Ala.Civ.App.1983).

This ease is due to be and is affirmed.

AFFIRMED.

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


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    David R. WEINBERG v. Jerome B. WEINBERG, as Guardian of Ruby L. Weinberg.
    Civ. 4441.
    Court of Civil Appeals of Alabama.
    Nov. 28, 1984.
    David R. Weinberg, pro se.
    J. Birch Bowdre and Deborah A. Pickens of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This case involves the conversion of estate property.

Mrs. Ruby L. Weinberg, mother of Jerome B. Weinberg (guardian) and David R. Weinberg, was declared to be of unsound mind (non compos mentis) on June 29, 1979, by the Jefferson County Probate Court. Jerome was appointed guardian of the estate and has remained so as of the date of trial'.

Prior to this event, Mrs. Weinberg had for several years been a widow. David lived with her. During the years following his father’s death, David had used a substantial portion of Mrs. Weinberg’s estate to invest in real estate. Although purchased with his mother’s money, the title to all but one parcel was taken in David’s name. David was sued for recovery of the property. In November 1979, an order was entered by the Jefferson County Equity Court requiring him to transfer title to thirteen parcels of real estate to the guardian for the estate of Mrs. Weinberg. He was also required to transfer and assign seven bank accounts to the guardian. One of these was a First National Bank of Birmingham account, number 155-2090, the subject of the case sub judice. The parties to the suit thereafter signed mutual releases.

On May 21, 1980, a check was drawn by David on the above account for the balance of $371.62. It was signed by Mrs. Weinberg and made payable to David. At the time, Mrs. Weinberg remained under the disability of non compos mentis.

The guardian initiated a suit to recover the money in the Jefferson County District Court. Following the entry of judgment in favor of the guardian, David appealed to circuit court for a trial de novo. The case was tried before a jury and at the close of all the evidence, the court charged the jury to return a verdict for the guardian and against David on the conversion claim, as well as David’s counterclaim, charging mismanagement of the ward’s estate by the guardian.

David’s first contention on appeal is that the release signed in 1979 bars any action on this checking account. However, it is noted that the release pertained to events prior to the date of the order and the check was written on May 21, 1980.

David, on motion for new trial, charged that the verdict was contrary to the evidence. A motion for new trial on the grounds that the judgment is against the weight of the evidence is properly overruled when there is evidence presented which, if believed, supports the verdict. Deal v. Johnson, 362 So.2d 214 (Ala.1978); Jackson v. Brown, 49 Ala.App. 55, 268 So.2d 837 (1972). We find sufficient evidence in the facts set forth above.

Finally, David contends the judgment is void because an indispensable party was absent from the action. More specifically, he contends a guardian ad litem or next friend should have been joined to represent the mother and to show that the guardian of the estate was guilty of mismanagement, waste and neglect. All attempts to raise this issue at trial were ruled irrelevant to the conversion issue.

We find the counterclaim charging mismanagement of the estate does not arise out of the same transaction and occurrence that is the subject matter of the guardian’s claim. Rule 13(b), A.R.Civ.P. It is therefore a permissive counterclaim which can be denied at the trial court’s discretion. T.J. Stevenson & Co. v. 81,193 Bags of Flour, 629 F.2d 338 (5th Cir.1980). We find no abuse of discretion here, and this case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Frances LOCKETT v. THERMAL COMPONENTS, INC., and INA/Aetna.
    Civ. 4319.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1984.
    Harold Howell of Howell, Sarto & Howell, Prattville, for appellant.
    N.T. Braswell III of Rushton, Stakely, Johnston, & Garrett, Montgomery, for ap-pellee Thermal Components, Inc.
    William I. Hill II of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee IN A/Aetna.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The Circuit Court of Montgomery County found that the employee’s claim for workmen’s compensation benefits was barred by the statute of limitations and granted the defendants a judgment on the pleadings. The employee appeals. We reverse.

Frances Lockett was employed by Thermal Components, Inc. (Thermal) on September 17, 1980, March 24, 1981, and September 16, 1981 when she alleges she suffered an on-the-job back injury. Claimant was hospitalized for tests and received workmen’s compensation benefits in October, November, and December 1981. She was released by her physician, Dr. Bostwick, on November 23, 1981 to return to work. Claimant returned to work and was laid off in January 1982. According to his affidavit, on October 18, 1982 Paul J. Lockett, claimant’s husband, got in touch with a representative of Thermal, requesting clearance for medicine for his wife. The representative told Lockett she doubted they would pay for the medicine. From then on the Locketts ran into difficulty. Aetna, Thermal’s workmen’s compensation insurance carrier after March 6, 1981, denied liability since claimant had told them that her claim was for an injury she received on September 17, 1980. CNA, the workmen’s compensation insurance carrier for Thermal up until March 6, 1981, denied liability for the coverage since Dr. Bo-stwick’s letter indicated that her injury was a new one or an aggravation of a preexisting condition. CNA later denied liability for the injury. Eventually, Aetna told claimant’s husband that they would not pay since the statute of limitations had run.

Claimant filed suit on January 19, 1983, claiming workmen’s compensation benefits based on her alleged September 17, 1980 injury. The trial court conditionally dismissed the complaint, giving claimant fifteen days to amend. Claimant amended her complaint by restating the original count and adding a second count alleging fraudulent representation by Aetna, CNA, and Thermal, and demanding $2,000,000 punitive damages for malicious fraud. The trial court dismissed the fraud allegations but allowed count one, claiming workmen’s compensation benefits, to stand.

On October 11, 1983 claimant filed an amendment to count one, now the only count before the court, to show that the defendant was estopped to raise the statute of limitations as a bar due to defendant’s and its insurance carrier’s fraudulent representations; to allege later injuries on March 24, 1981 and September 16, 1981; and to show that claimant had received workmen’s compensation benefits in October, November, and December 1981. This amendment was not verified. However, there was no need for it to contain a separate verification since it related back to the original complaint. Rule 15(c), Alabama Rules of Civil Procedure.

Aetna was allowed to intervene in the case at this point as a defendant.

A hearing was held on April 4, 1984, after which the trial court granted the defendants’ motion for a judgment on the pleadings, in effect holding that there was not a justiciable factual dispute in the evidence as to whether the one-year statute of limitations had been tolled. From this judgment claimant appeals.

Under the Alabama Workmen’s Compensation Act (the Act), §§ 25T5-1 to -203, -226, -227, -229, and -231, Code 1975, the claimant has one year to file a complaint beginning on the date of the accident, when the parties agree on the amount of compensation payable, or the date of the last payment of compensation. § 25-5-80, Code 1975. Phillips v. Opp & Micolas Cotton Mills, Inc., 445 So.2d 927 (Ala.Civ.App.1984).

The evidence before the court shows that claimant was last paid workmen’s compensation benefits in December 1981. Thus, the statutory period extended at least one year from then. The evidence also shows that claimant’s husband contacted Thermal’s various insurance carriers beginning in October 1982, within the one-year period of limitation. In November 1982 Thermal’s representative made an appointment for claimant with a neurological surgeon, Dr. Jackson L. Bostwick, who operated on claimant on November 11, 1982. In a November 24,1982 letter, CNA’s claims representative informed claimant that they had informed Dr. Bostwick that they were not “going to be responsible for the bills until we can clear up the coverage question.” The clear import of the facts before the court was that the claimant had probably suffered an on-the-job injury in September 1980 and again in September 1981, and that the two insurers were attempting to establish which one was liable for benefits. This indecision was communicated to the claimant. Aetna even requested of claimant’s husband a delay of several weeks so that a decision could be made about paying the claim. Then, on January 3, 1983, Aetna informed plaintiff’s husband that the statute of limitations had run and his wife would not receive any compensation.

The propriety of a judgment on the pleadings requires that the content of all the pleadings, including the answer, must be considered to determine whether there is a justiciable factual dispute. Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055 (Ala.1981); Rule 12(c), A.R.Civ.P.

As noted above, the pleadings, which had incorporated in them exhibits and affidavits, clearly revealed a factual dispute as to whether the agents of the employer had conducted themselves in such a manner as to mislead claimant in delaying the filing of her claim until the limitation period had expired. See L.W. Limbaugh Mining & Construction Co. v. Youngblood, 413 So.2d 1151 (Ala.Civ.App.1981), rev’d on other grounds, 413 So.2d 1153 (Ala.1982). This being the posture of the case, the trial court erred in rendering judgment on the pleadings.

REVERSED AND REMANDED.

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


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    Tom WILLIAMS v. Annie L. WILLIAMS.
    Civ. 4341.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1984.
    J. Richard Piel of Piel & Lynn, Montgomery, for appellant.
    R.S. Hill, Jr. of Hill & Hill, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

After ten years of marriage, the parties were divorced on February 29, 1984. Each party was given one-half the equity in the jointly-owned home. One-half of the equity was determined by the court to be $7,500. The parties were given the choice of one purchasing the interest of the other during a period of thirty days after the decree. If such purchase was not made, the property was to be sold by the Register at public sale. The husband made no offer of purchase during the thirty-day period. , Thereafter, the wife, through counsel, deposited her check for $7,500 with counsel for the husband as an offer to purchase. The husband refused the offer.

On April 19, the wife made known by petition to the court her offer to purchase husband’s interest in the home for the amount determined by the court to be the value of one-half the equity. She requested that he be required to accept the offer and convey to her his interest in the property.

After oral hearing, the court granted the wife’s petition and directed the Register to convey to the wife the husband’s interest upon her depositing the sum of $7,500 in court.

The husband appeals, contending the court abused its discretion in (a) giving to the wife a one-half interest in the equity in the home, and (b) in allowing the wife to purchase the interest of the husband by paying him $7,500, instead of holding a public sale as first directed.

It is well known that the division of property between parties in a divorce case is peculiarly a matter within the discretion of the trial judge. The exercise of that discretion, as entered in the decree of the court, is presumed correct upon appeal. Johnson v. Johnson, 423 So.2d 871 (Ala.Civ.App.1982); Cooper v. Cooper, 382 So.2d 569 (Ala.Civ.App.1980). Such presumption may be overcome only upon a showing of absence of support in the evidence or that the decree is unjust. Mack v. Mack, 402 So.2d 1038 (Ala.Civ.App.1981).

Our review of the record discloses ample support of the decree of the court in determining the value of the equity in the home and in the giving of one-half to each party. We perceive no purpose in detailing the evidence in that regard.

The husband contends that directing him to accept $7,500 from the wife as payment for his equity and interest in the property, rather than to hold a public sale as first ordered, was an abuse of discretion. Husband cites no authority for his contention, and we discern no such abuse. The court specifically retained jurisdiction after determining the interests of the parties and their value, for the purpose of implementing and enforcing its decree. The husband will receive the undisputed value of his equity. He had the first opportunity to give to the wife for her interest the amount he will now receive for his.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Richard A. ROBBINS v. Carmen J. ROBBINS (Majors).
    Civ. 4419.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1984.

      J. Richard Piel of Piel & Lynn, Montgomery, for appellant.
    J. Floyd Minor, James T. Sasser, and W. McCollum Halcomb of Wood, Minor & Parnell, Montgomery, for appellee.
   HOLMES, Judge.

This is a child custody visitation case.

The mother brought an action to modify the original divorce decree and terminate the visitation rights of the father.

After an ore terms hearing, the trial court found the father in contempt for violating the custody agreement and suspended his visitation rights.

The trial court further ordered the father to pay an amount of child support arrear-age and awarded an attorney’s fee to the mother. The father appeals and we affirm.

The father contends that the trial court abused its discretion in suspending his visitation rights. He additionally contends that the trial court erred in its determination of child support arrearage and in the award of an attorney's fee.

This is the second time these parties have been before this court. Interested persons can refer to Robbins v. Robbins, 447 So.2d 789 (Ala.Civ.App.1984).

As stated, the father first appeals from the suspension of his visitation rights to the couple’s five-year-old child.

There was uncontroverted evidence that the mother had been awarded custody of the child and that the father had twice taken the child without the mother’s permission. In both instances, the father kept the child until law enforcement authorities returned the child to the mother.

The last incident occurred on September 5, 1983, when the father did not return the child after exercising his visitation rights. In an effort to hide from the mother, the father took the child and moved to Florida, where he lived under an assumed name. The child was not returned until March of 1984 when F.B.I. agents located the father’s residence.

There was additional evidence that, when the child was returned home, she was dirty, smelled bad, and had sores on her head.

The trial court found the father to be in contempt and in effect suspended his visitation rights for twelve months, with future visitation rights contingent on his fitness to exercise such rights.

The trial court has a wide discretion in setting visitation rights, and this court will not reverse the lower court unless there is plain and palpable abuse of discretion. Tardzer v. Tardzer, 441 So.2d 934 (Ala.Civ.App.1983).

The primary consideration in visitation rights is the best interest and welfare of the child. Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983).

Due to the father’s actions, which, needless to say, were a clear disregard of the court’s custody order, we cannot say that the trial court abused its discretion in “suspending” the father’s visitation rights. We note that the court’s judgment allows the father to possibly resume visitation after twelve months, upon proof of his fitness to exercise such rights.

The father additionally appeals from the court’s determination of child support ar-rearage.

The original divorce decree awarded child support in an amount of twenty-seven dollars per week based on the father’s salary of $150 per week. There was evidence that the father had not paid child support since June of 1983 and had not satisfied a prior judgment of past-due child support in the amount of $486. The father, in addition, testified that his current take-home pay is $650 per week.

The determination of child support arrearage by the trial court will not be disturbed unless it is not supported by the evidence and is plainly erroneous and manifestly unjust. Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980).

In view of the unpaid and past-due child support and the unsatisfied judgment of child support, it seems clear that the evidence supports the trial court’s determination of the arrearage. From this order we can find no error.

Lastly, the father appeals from the trial court’s award of $2000 as an attorney’s fee to the mother.

It is a well-established principle of law that the award of an attorney’s fee in divorce matters is in the sound discretion of the trial court, and this court will not reverse except for abuse of that discretion. West v. West, 437 So.2d 583 (Ala.Civ.App.1983).

Here, there was evidence that the mother had to take legal action to find and regain physical custody of her child from the father. There was also evidence that legal assistance was necessary in order to modify the custody agreement and to compel payment of the child support arrearage.

The father’s disregard of the custody order and his non-payment of child support made it necessary for the mother to seek legal assistance to insure the protection and welfare of the child. Under these facts, coupled with the ultimate finding of contempt, we cannot say that the trial court abused its discretion in awarding an attorney’s fee to the mother.

The mother has requested an award for attorney’s fee for representation on appeal. An attorney’s fee of $500 is hereby awarded.

This case is due to be and is affirmed.

AFFIRMED.

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


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    William Franklin ADAMS v. Juanita G. ADAMS.
    Civ. 4431.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1984.

      Michael S. Evers, Dothan, for appellant.
    Joel M. Nomberg of Nomberg & McCabe, Dothan, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from the denial of a motion to modify alimony payments.

After twenty-seven years of marriage, these parties were divorced on July 1,1980, with written agreement as to alimony and other matters, which was incorporated in the divorce judgment. Appellant filed a motion to modify the alimony provisions of the judgment, and appellee filed a counter-motion to increase her benefits to include military privileges and a rule nisi for ar-rearage. The trial court denied both motions and awarded a judgment to appellee in the amount of $700 for arrearage, plus an attorney's fee.

Appellant’s sole issue on appeal is whether the trial court abused its discretion in refusing to reduce the amount of alimony. Appellant alleges as change of circumstances that he has remarried, he is unemployed, he has had heart surgery, and that his future employment, if any, is limited to light duty or work, and that he owes some $7,000 in medical bills.

The appellant had worked as a convenience store clerk at times prior to the divorce and at intervals after the divorce until his heart surgery. At the time the divorce was granted, appellant’s sole income was his military retirement pay, and at the time of the hearing on his motion, his sole income was his military retirement pay, which had increased over $100 per month since 1980. The appellee has varicose veins and works part time as a sitter for children or the elderly, making $75-$100 per month.

The burden of proving a change in the financial circumstances of a party as a basis for modifying an alimony award is on the party seeking such change. Meyer v. Meyer, 375 So.2d 799 (Ala.Civ.App.1979). “Where a decree of divorce has adopted an agreement with respect to alimony and maintenance, the court will not modify such agreed decree except on proof of changed conditions which justify the modification and only to the extent of such changed conditions.” Block v. Block, 281 Ala. 214, 216, 201 So.2d 51, 53 (1967).

Our well-established rule on appeal is that the trial court’s judgment will be presumed correct where it hears the evidence ore terms. Roberts v. Roberts, 395 So.2d 1035 (Ala.Civ.App.1981). The modification of a prior judgment for alimony, based upon changed circumstances of the parties, is a matter largely within the sound discretion of the trial court, and the exercise of that discretion will be disturbed on appeal only if, after reviewing the evidence, this court finds such an abuse thereof as to make the judgment plainly and palpably wrong. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979). We have carefully reviewed the evidence reported in the record, and although there was evidence that appellant’s ability to pay has been hindered by his remarriage and medical bills incurred, he has had an increase in his ine.ome. We find no palpable abuse of discretion in the trial court’s refusal to modify the alimony provision.

Appellee is awarded $250 as attorney’s fee on this appeal.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as 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.