author: PRATHER, Justice, BROOM, Presiding Justice,

text:
    J.R. VINCE v. J.D. BROOME.
    No. 53919.
    Supreme Court of Mississippi.
    Dec. 14, 1983.

      Keith Starrett, Magnolia, for appellant.
    James H.C. Thomas, Jr., Hattiesburg, for appellee.
    Before BROOM, DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Plaintiff J.R. Vince, the purchaser of cattle, sued J.D. Broome, the seller of the cattle and the stockyard through which the cattle were sold, Southeast Mississippi Livestock Farmers Association, for breach of implied warranty of merchantability of the cattle under Uniform Commercial Code. From a jury verdict for $2,640.23 in favor of the plaintiff in the County Court of Forrest County, the defendant seller appealed. The circuit court reversed holding that the Uniform Commercial Code did not apply to a sale of livestock and that the county court erred in submitting to the jury the factual determination of the merchant status of a farmer. The reversal of the judgment of the county court gave rise to this appeal.

The question for determination here is whether a farmer selling cattle through the stockyard was a merchant under Mississippi Code Annotated section 75-2-314 (1972) at the time this action arose.

I.

On May 19, 1980, J.R. Vince purchased fifteen head of cattle at a cattle auction barn owned and operated by the Southeast Mississippi Livestock Farmers Association (Stockyard). Vince was an order buyer and as such, purchased cattle for resale to feed lot operations. After purchasing these cattle, Vince transported them some sixty miles to his farm and unloaded them. During transfer and shortly afterwards the cattle became ill. Five of them died and five others lost a great amount of weight from illness.

On the day of the purchase Vince notified Jack Minter, the manager of the Stockyard, of his sick and dead cattle. J.D. Broome, the seller of the cattle, was also notified. Broome admitted that prior to taking the cattle to the sale, some of his cows had accidentally gotten into his feed lot and had overeaten. The veterinarian who treated the cattle verified that they were suffering from a toxic condition caused by overeating.

This lawsuit alleged that by selling cattle that were sick at the time of the sale, J.D. Broome breached the implied warranty of merchantability under the Uniform Commercial Code under section 75-2-314. Although suit was brought against both the seller and the stockyard, the trial court sustained a motion for directed verdict as to the stockyard.

II.

Initially, this case addresses the merchant status of a farmer and raises for this Court’s first consideration the question of whether our Uniform Commercial Code exempts farmers from the application of the entire Code.

We look to legislative history for answers to questions of such import where the enactment of such provides a guideline. Here, however, our original legislative history provides no enlightenment as to whether the question was even anticipated. From a study of the Code, we find no exemption of farmers as a merchant class.

However, subsequent to the original enactment of the Uniform Commercial Code on July 1, 1981, the legislature did amend one section of the Code, section 75-2-314, to exclude the sale of cattle, hogs, and sheep from the implied warranty of merchantability. Inferentially by this action the legislature acknowledged that a farmer may factually in a particular case be considered a “merchant” under the Code definition (section 75-2-104), but the legislature did not exclude farmers as a merchant class from the definition under section 75-2-104.

We are compelled to note that some farming operations are worth millions of dollars. These farmers are engaged in multicommercial transactions and are generally considered to be agribusiness persons. It would stretch the imagination to conclude that all these operations were exempt from coverage under the Commercial Code.

On the other hand, some farming operations are performed by such casual and inexperienced sellers that they would not be included within the merchant definition.

Therefore, this Court concludes that farmers as an occupation may be a merchant class where their particular factual situation falls into the definition of merchant as defined in Mississippi Code Annotated section 75-2-104.

III.

Having determined that farmers may be a merchant class within the provisions of the Uniform Commercial Code, we next address this particular lawsuit involving an alleged breach of an implied warranty under section 75-2-314 where “goods” were sold by a “merchant.”

There are five elements which a plaintiff must prove to recover under section 75-2-314: (1) That a “merchant” sold “goods,” and he was a merchant with respect to “goods of the kind” involved in the transaction, (2) which were not merchantable at the time of the sale, and (3) injuries and damages to the plaintiff or his property, (4) caused proximately and in fact by the defective nature of the goods, and (5) notice to the seller of the injury. See, White and Summers, Uniform Commercial Code § 9-6 (1980).

Reference to several pertinent sections of Mississippi Uniform Commercial Code sections 75-1-101 (1972) et seq., is in order.

“ ‘Goods’ means all things ... which are movable at the time of identification to the contract for sale other than money ..., investment securities. ‘Goods’ also includes the unborn young of animals and growing crops and other identified things attached to realty_” Miss.Code Ann. § 75-2-105 (1972). Therefore, this Court concludes that livestock are “goods” within the definition of the Uniform Commercial Code and are covered under the law governing commercial transactions.

When a sale of goods is made, there is an implied warranty that the goods are merchantable if the seller is a “merchant with respect to goods of that kind.” This implied warranty provision is contained in Mississippi Code Annotated section 75-2-314 (1972).

Implied Warranty: merchantability; use-age of trade.

(1) A warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.... (Emphasis added).

The defendant Broome does fiot question here that the plaintiff proved the above last four elements necessary for recovery. Nor is issue raised that cattle are not “goods” as defined in Mississippi Code Annotated § 75-2-105(1), or that a contract for sale existed.

The only disputed element here is whether Broome under the particular factual situation here was a “merchant with respect to goods of that kind” (cattle), under section 75-2-314 Mississippi Code Annotated (1972). If he is not a “merchant with respect to goods of that kind,” he does not give the section 75-2-314 implied warranty of merchantability.

At the outset, we observe that the merchant definition needs addressing. A merchant is defined under Mississippi Code Annotated section 75-2-104 (1972), as:

A person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. (Emphasis added).

Note that in suits on implied warranty under section 75-2-314, such as here, the definition of “merchant” is more limited than the general definition contained in section 75-2-104. Siemen v. Alden, 34 Ill.App.3d 961, 341 N.E.2d 713 (1975), states: “[T]he definition of merchant within § 2-314 is a narrow one and that the warranty of merchantability is applicable only to a person who, in a professional status, sells the particular kind of goods giving rise to the warranty.” There is an implied warranty only when a seller is a “merchant with respect to goods of that kind.” The other definitions of merchants contained in section 75-2-104 do not apply to implied warranty suits.

IV.

Broome, who had been in the cattle business for twenty years, owned approximately 2,000 head of cattle, and annually sold about 1,000 head. He operated a feed lot operation, feeding and fattening cattle for sale to meat packing plants for slaughter. This activity of selling to slaughter houses comprised approximately 90 percent of his business. Only occasionally did he sell cattle in the manner in which he sold them to Vince through the auction barn. Other businesses operated by Broome include a Case tractor dealership, bowling lanes, and a construction operation. Broome claimed the construction business to be his main occupation; however, cattle farming was a major part of his business according to his testimony.

Broome’s argument that he is not a merchant is two-fold. First, he states that 80 to 85 percent of his time is occupied in businesses other than his cattle operation. Secondly, of that portion of his time con-tributable to his cattle operation, Broome stated 90 percent of his operation is raising cattle for slaughter and not raising cattle for resale through a stockbarn.

Mr. Broome relies on Loeb v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975) for the proposition that a farmer is not a merchant. The Alabama Court opined that since the farmer in that case never “sold anyone’s cotton but his own”, then “[H]e was nothing more than an astute farmer selling his own product.” Therefore, he was not a merchant. Id., 321 So.2d at 202.

A case most similar to the instant case is Bennett v. Jansma, 329 N.W.2d 134 (S.D. 1983), where a cattleman regularly dealt in cattle transactions and employed an intermediary auctioneer to sell cattle. The South Dakota Court determined that the cattleman was a merchant with respect to goods of that kind under Uniform Commercial Code provisions.

A contrary conclusion was reached factually in Fear Ranches, Inc. v. Berry, 470 F.2d 905 (10th Cir.1972). A farmer, selling his cattle under a forced sale because of financial difficulties, was not found to be a merchant who dealt in goods of that kind when he made a single isolated sale to a nonpacker. He had generally sold his cattle to packing houses. Also see Prince v. LeVan, 486 P.2d 959, 9 U.C.C. Reporting Service 367 (Alaska 1971); Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).

V.

Applying the Uniform Commercial Code to the facts of this case for analysis, we conclude that Broome has dealt with raising and selling cattle regularly for twenty years.

To have grown from a small business twenty years ago to one that owned 2,000 head, impliedly shows regular dealing in cattle raising and selling. Additionally, in response to the question, “You are an experienced cattleman, are you not, sir?” Broome answered, “Well, reasonably so, yes, sir.” The reasoning that Broome asserts that he is not a merchant because he only sells what he raises and that he has no knowledge or skill peculiar to selling cattle through a livestock sale, is not acceptable to us under these facts.

[I]t is not the kind of business that makes a merchant a merchant, but rather it is the status of the person to the merchandise which is sold that assists in arriving at a conclusion as to whether or not a person is a merchant. (Squillante, Is He Or Isn’t He A Merchant? — The Farmer, 82 Comm.L.J. 155 (1977).

Nor is it logical to draw a distinction between cattle sold for slaughter and cattle sold to feed lots for resale. He must only deal in goods of the kind involved in the transaction.

Additionally, the fact that Broome had multibusinesses makes him no less a professional cattleman. Whether he deals in other goods, as here, is immaterial.

We emphasize that each case is determined individually, based upon its particular factual situation. A cattle farmer is a merchant only if he fits within the definition of a merchant with respect to goods of that kind. Each case will be decided on its own facts.

We hold that Broome’s cattle operation was of sufficient size, extent, and duration that he was an experienced cattleman and a knowledgeable seller. He dealt with goods (cattle) of a kind, and had expertise peculiar to cattle transactions. We conclude that under the facts of this case Broome was a “merchant dealing in goods of that kind” (cattle) and that an implied warranty of merchantability arose from the sale of cattle.

VI.

The second assignment of error addresses the county court's submission of the factual issue of the defendant’s merchant status to the jury. The question presented for our determination is whether the merchant status of a farmer is a question of fact for the triers of the facts or a question of law for the court.

Questions of facts are for the jury’s determination. However, when the jury is faced with no reasonable alternative to these facts and no reasonable minds can draw any different conclusion, then the question becomes one of law. The Court then instructs the jury as to that legal conclusion. Sand Seed Service, Inc. v. Poeckes, 249 N.W.2d 663 (Iowa 1977).

Paraphrasing a recent decision of this Court, we stated whether there exists circumstances alleged to constitute [merchant status] is a question of fact for the jury’s determination. But whether supposing them to be true, as alleged, they establish [one to be a merchant], is a question to be decided by the court. It is error to refer the determination of whether [one is a merchant] to the jury without declaring to them the principles by which they must be governed in determining that question. Owens v. Kroger Co., 430 So.2d 843 (Miss.1983); Whitfield v. Westbrook, 40 Miss. 311 (1866); Greenwade v. Mills, 31 Miss. 464 (1856).

We conclude that the county court did not err in submitting the factual question to the jury for its determination upon proper instruction. The court’s instruction of the statutory definition of a merchant under section 75-2-104 was given to the jury for it to analyze with the testimony to determine the ultimate question. The ultimate question of whether a person comes within the definition of merchant is a mixed question of law and fact. We find no error in this assignment.

We hold, therefore, that the opinion of the circuit court is reversed and the judgment of the county court of Forrest County is reinstated.

REVERSED AND JUDGMENT OF COUNTY COURT REINSTATED.

PATTERSON, C.J., and BOWLING, HAWKINS and ROBERTSON, JJ., concur.

BROOM and WALKER, P. JJ., and ROY NOBLE LEE and DAN M. LEE, JJ., dissent.

BROOM, Presiding Justice,

dissenting:

Views set forth in the majority opinion appear to be a misapplication of Mississippi Code Annotated § 75-2-314 (1972). Therefore, although with deference, I must dissent.

Analysis of § 75-2-314, supra, shows that “farmers” are not mentioned or in any manner defined. The majority opinion states that an amendment to § 75-2-314, enacted subsequent to the accrual of the present action somehow “inferentially” places farmers within the scope of our Uniform Commercial Code. Such a construction is simply lacking of logic.

The majority “concludes that farmers as an occupation” fall within the definition of “merchant” and cites Mississippi Code Annotated § 75-2-104 (1972). Such a conclusion is reached without referring to any mention of “farmers” within any part of the U.C.C. Apparently hereafter a “farmer” in Mississippi is to be governed by the same laws as that of merchants, such as ear dealers,, retail establishments of all kinds, and “commercial” operations of most varieties. It follows that most' farmers should immediately enroll in a law school or employ regularly retained counsel who have expertise in and a deep understanding of “commercial law” now codified as our Uniform Commercial Code. To put such a burden on Mississippi “farmers” is not reasonable or justifiable and was not intended under any cited section of the U.C.C. The very title “Commercial Code” indicates that the U.C.C. was not aimed at farmers.

Our sister states of Alabama and Arkansas, which perhaps are more like Mississippi than any other state, have both declined to hold a farmer to be a merchant, subject to the U.C.C. Pertinent language is the following excerpted from Loeb and Company, Inc. v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975):

We do not think the framers of the Uniform Commercial Code contemplated that a farmer should be included among those considered to be “merchants.”
In order for a farmer to be included within the § 2-104 definition of “merchants,” he must do one of the following:
1. deal in goods of the kind;
2. by his occupation hold himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction; or
3. employ an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

Id. 321 So.2d at 201-02. See also Cook Grains v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965).

The present record establishes that the litigant now held by the majority to be “merchant-farmer” spends over 80% of his time in the construction business. His cattle operation is usually as a feeder for slaughter, and ordinarily does not raise cattle for “resale” as he did here in an isolated case. No evidence is pointed out that he ever sold cattle other than cattle which were his own. In this regard, the rationale of Pierson v. Arnst, 33 U.C.C. Rep. 457, 534 F.Supp. 360 (D.C.Mont.1982), is particularly appealing,

This court is convinced that although a farmer may well possess special knowledge or skills with respect to the production of a particular crop [or livestock], the term “merchant”, as used in the Uniform Commercial Code, contemplates special knowledge and skill associated with the marketplace_ It is inconceivable that the drafters of the Uniform Commercial Code intended to place the average farmer who merely grows his yearly crop [or his livestock] and sells it to the local elevator, etc. on equal footing with the professional commodities dealer whose sole business is the buying and selling of farm commodities.

Id. at 460, 534 F.Supp. at 362 (emphasis added). See also Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323, 18 U.C.C. Rep. 1160, 1167 (1976). Returning to the instant case, the proof clearly shows that Broome possessed no special knowledge or skill of the marketplace. He may very well have possessed special skill with regard to raising the cattle and thus might very well have been a merchant if he was offering his services as a herdsman. But, here he was simply selling the cattle he had raised. It is expertise and professionalism in the buying and selling of cattle that makes a cattle operator a merchant, not expertise and professionalism in the raising of that cattle. According to the proof, Broome is not a “dealer” within general usage of the term.

Mississippi Code Annotated § 75-2-509 (1972) makes it clear that when the seller is not required to ship goods to a buyer, such a buyer assumes the risk of loss. Here it is clear that the buyer received the cattle prior to the loss, negating liability of Broome. Here the cattle became sick by accidental over-feeding. Although the original declaration charged intentional overfeeding, the amended declaration made no such charge. The cattle appeared normal at the sale and the buyer (Plaintiff) made no effort, prior to the auction sale, to ascertain their condition. Manufactured (commercial) goods by their very nature cannot accidentally overfeed or self-destruct, and they are the type articles logically covered by the cited parts of the ' U.C.C.

For these reasons, I cannot subscribe to the views of the majority opinion.

WALKER, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ., join in this dissent.

      . Mississippi Code Annotated section 75-2-314 was amended to exclude cattle, hogs, and sheep from an implied warranty of merchantability effective July 1, 1981. This action arose on May 19, 1980; therefore, we interpret this statute prior to the amendment.

      . As to the stockyard that sold the cattle, their written forms state: "note. We are not responsible for sickness or death. We are agents only.". No error is assigned as to this action by the county court, nor is it addressed in this appeal.

      . Likewise, although Article 9 of the Uniform Commercial Code deals with secured transactions, it recognizes that “farm products” may be used as a source of collateral in commercial transactions. Admittedly, however, it does not control the question presented here.

      . Broome testified that there was no express warranty given, no representation about the cattle as to their intended use or suitability for any purpose. Broome denied knowingly selling sick cattle; he also lost some cattle from the same cause. Section 75-2-314 involves an implied warranty. An express warranty is not required under this section..


source: Caselaw Access Project

license: Public Domain

text:
    Cornelius Dennis BRISLAWN, Jr. v. Beverly Joan Gatewood BRISLAWN.
    Civ. 3222.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1982.
    Rehearing Denied Sept. 29, 1982.
    Sam E. Loftin, Phenix City, for appellant.
    Kenneth L. Funderburk of Phillips & Funderburk, Phenix City, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

On December 29, 1978, the parties were married at Fort Benning, Georgia, where the husband was stationed as an army officer. He lived on the post at that time. The wife had resided in Columbus, Georgia, for approximately two months, but, for the month preceding their marriage, she had resided with her parents in Russell County, Alabama, having moved there in anticipation of her marriage and of his already pending assignment to Germany. The wife was a legal resident of Alabama. The husband’s domicile at the time of the marriage and at the time of the trial was in the state of Washington.

After spending their wedding night in Columbus, Georgia, the parties stayed at the home of the wife’s parents until January 9, 1979, when he left for his new station in Germany for a three-year tour of duty. The wife testified that their approximate ten-day stay at her parents’ home was temporary and that the husband did not change his legal residence, did not buy any Alabama property of any nature, did not register to vote in Alabama, and did not apply for an Alabama driver’s license. During that ten-day period, he did no act in Alabama other than to come to her parents’ home after work each day. Those few days which he spent in the home of the wife’s parents constituted the only time that the husband ever lived in Alabama and it was the only contact with this state which is established by the evidence. There is no evidence that any problem or difficulty occurred between this couple before he went overseas.

The wife joined her husband in Germany in February 1979, where they lived together until August 1980, when the parties separated and the wife returned to her parents’ home. The husband remained in Germany until December 1981. A child was born on April 16,1981. At the time of the February 1982 trial he was again stationed at Fort Benning.

Through an Alabama circuit court, the wife sought and obtained a divorce and other affirmative relief. The husband was served with a copy of the summons and complaint by certified mail while he was still in Germany.

The trial court properly granted a divorce. The wife, by allegations and proof, has shown compliance with the six months residence requirement of § 30-2-5, Code 1975. As to the divorce, the circuit court had jurisdiction over the wife as an Alabama resident and over the marital res. However, a judgment as to a child’s paternity and support is a personal judgment which requires that the court have personal jurisdiction over the person of the husband. Lightell v. Lightell, 394 So.2d 41 (Ala.Civ.App.1981). The primary issue before this court is whether the husband had sufficient contacts with this state so as to confer upon the courts of Alabama in personam jurisdiction over him by reason of extraterritorial service of process upon the husband by certified mail. That jurisdictional problem was properly raised by the husband and the decision of the trial court thereon was adverse to him.

In the instant case, the husband had far less contact with Alabama than did the husband in Corcoran v. Corcoran, 353 So.2d 805 (Ala.Civ.App.1978). There it was held that such minimum contacts did not exist so as to allow personal jurisdiction in this state over the husband. The facts in the present case dictate the same result.

On this appeal, the husband seeks a reversal of those portions of the judgment (1) which pertain to the child in any respect, (2) to child support and (3) whereby the husband was ordered to pay the wife’s attorney’s fees. For the reasons heretofore set forth, we are required to reverse as to those three aspects of the judgment. However, all of the other provisions of the judgment are hereby affirmed. 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 § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Beverly Joan Gatewood BRISLAWN. (Re Cornelius Dennis BRISLAWN, Jr. v. Beverly Joan Gatewood BRISLAWN).
    82-9.
    Supreme Court of Alabama.
    June 3, 1983.
    Rehearing Denied July 8, 1983.
    Certiorari Denied Jan. 9, 1984.
    See 104 S.Ct. 704.
    Sam E. Loftin, Phenix City, for petitioner.
    Kenneth L. Funderburk of Phillips & Funderburk, Phenix City, for respondents.
   FAULKNER, Justice.

This is a review by certiorari of the Court of Civil Appeals’ decision in a divorce case. The facts are as follows: On December 29, 1978, Beverly Joan Gatewood and Cornelius Dennis Brislawn were married at Fort Benning, Georgia, where the husband was stationed as an army officer. After spending their wedding night in Columbus, Georgia, the parties stayed at the home of the wife’s parents in Alabama for ten days. Subsequently, and up until the time the parties were separated in August, 1980, the couple lived in Germany. At that time the wife returned to her parents’ home in Alabama, where a child was born. Through an Alabama circuit court, the wife sought a divorce and other affirmative relief. The trial court granted a divorce, gave custody of the minor child to the wife, determined the husband to be the father, and required the husband to pay child support and attorney’s fees. The Court of Civil Appeals, 443 So.2d 31, found that the trial court properly granted a divorce, but reversed the trial court’s judgment as to the matters concerning paternity, custody, support, and attorney’s fees.

The wife filed an application for rehearing, which was denied. This court granted her petition for writ of certiorari and subsequently heard oral arguments.

The issues presented in this case are:
(1) Whether the Court of Civil Appeals erred in holding that Cornelius Dennis Brislawn, Jr. did not have the minimum contacts with Alabama necessary to give the Circuit Court of Russell County personal jurisdiction over him to decide child support and attorneys fees; and
(2) Whether the Court of Civil Appeals erred in holding that in personam jurisdiction is required over the husband, even where the mother and minor child are residents of Alabama, in order to establish paternity, custody and control of the minor child and any other matters pertaining to, the child in any respect.

First, we will address the issue of whether Mr. Brislawn had sufficient minimum contacts with this state “so that the prosecution of the action against [him] in this state is not inconsistent with the constitution of this state or the constitution of the United States_” Rule 4.2(a)(1)(B), A.R. Civ.P.

We dealt with this principle in Mann v. Frank Hrubetz & Co. Inc., 361 So.2d 1021 (Ala.1978), where we quoted from International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945):

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”...

The test requiring that defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Thus, we must determine if Mr. Brislawn had certain minimum contacts with this state so that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice,” by examining the facts in this case.

In this case, the Court of Civil Appeals held that Mr. Brislawn did not have the required minimum contacts. That court cited Corcoran v. Corcoran, 353 So.2d 805 (Ala.Civ.App.1978), as factual authority for this conclusion, stating that in this case the husband had far less contact with Alabama than did the husband in Corcoran.

We opine that Corcoran is distinguishable from this case. In Corcoran, the last place in the United States that the parties were domiciled together as husband and wife was in North Carolina, not Alabama. They had not lived in Alabama for over four years before the wife returned to Alabama to file for a divorce.

Unlike Corcoran, the State of Alabama represents the only place in the United States where the Brislawns lived together as husband and wife, except for their wedding night, which they spent in Columbus, Georgia. They moved from Alabama to Germany, separated in Germany, and the wife returned to Alabama, where the child was born. To say that Corcoran had more contact with Alabama than Brislawn for purposes of jurisdiction overlooks this distinction between the two factual situations.

The rule of “minimum contacts” has generally been given broad interpretation. For instance, in Calaqaz v. Calhoon, 309 F.2d 248 (5th Cir.1962), it was pointed out that mere correspondence with persons in a state may establish sufficient contacts with the state to subject a nonresident to a suit in that state on a cause of action arising out of those contacts. Also, in McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), it was held that state jurisdiction over a foreign corporation may be sustained on the basis of a single transaction — a single insurance contract — within the forum state.

We are careful to note, however, that the United States Supreme Court in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), recognized the trend of expansion of in personam jurisdiction over nonresidents, but warned that “it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.”

Under the facts of this case we have determined that it is reasonable to require Mr. Brislawn to come to Alabama to conduct his defense on the matters concerning paternity, custody, support, and attorney’s fees. The facts of this case establish the necessary minimum contacts.

REVERSED AND REMANDED.

TORBERT, C.J., and JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX, J., dissents.


text:
    Cornelius Dennis BRISLAWN, Jr. v. Beverly Joan Gatewood BRISLAWN.
    Civ. 3222.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1983.
    Certiorari Denied, Dec. 22, 1983 Alabama Supreme Court 83-128.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The original opinion of this court of September 1, 1982, 443 So.2d 31, was reversed and remanded by the supreme court, 443 So.2d 32, and, in accordance with that court’s mandate of July 27, 1983, this court’s September 1, 1982 opinion in this cause is set aside and held for naught.

The supreme court referred this matter to this court for further proceedings. Other issues were raised by the husband’s appeal which were not considered or decided in this court’s 1982 opinion. After remand, this court rendered an opinion upon those other issues on August 24, 1983. The husband filed an application for rehearing which is well taken and which is granted. The opinion in this cause dated August 24, 1983, is withdrawn and the following is substituted therefor.

The husband disputed that he was the father of the child born to the wife, and he moved that the trial court require the wife and child to submit to a physical examination in the nature of blood grouping tests. Notice of that motion was provided to the wife, and an evidentiary ore tenus hearing was held. The trial court initially granted the husband’s motion for blood group testing. Subsequently, however, the trial court considered Mason v. Mason, 276 Ala. 265, 160 So.2d 881 (1964), and the husband’s motion for the laboratory tests was then denied. From the comments made at the trial by the circuit court, it is clear that that final ruling upon the motion was solely based upon the trial court’s opinion that it had no authority to order the tests. However, in a divorce case it is now within the judicial discretion of the trial court to order, or refuse to order, the blood group testing of the parties and of a child. Balfour v. Balfour, 413 So.2d 1167 (Ala.Civ.App.1982). We are convinced from the remarks of the learned trial court that no discretion was exercised by it when that court rendered its order overruling the husband’s motion for blood group testing. The trial court should have the opportunity to decide whether, in the exercise of that court’s judicial discretion, the blood grouping tests of the parties and child should be ordered, or whether the tests should be denied, and we reverse and remand this case to the circuit court for that determination to be there made.

The husband’s discovery through written interrogatories propounded to witnesses in Germany shall be promptly allowed and completed if the husband elects to proceed with that discovery. Thereafter, in the trial court’s discretion, additional evidence may be presented upon the blood grouping tests problem before the submission of that issue for the trial court’s decision. We do not impliedly, or otherwise, express any opinion as to what action the trial court should take upon that question; but, if the husband’s motion for the laboratory tests is granted, the trial court would be then authorized to hear additional evidence, after the test results are available as evidence, and to determine the paternity of the child, child support and related issues in any and all respects as if such matters had never been decided by the trial court in the original divorce judgment, and, in that regard, the court may consider the previously heard evidence along with any newly presented evidence.

OPINIONS OF THIS COURT DATED SEPTEMBER 1, 1982, AND AUGUST 24, 1983, ARE SET ASIDE AND HELD FOR NAUGHT.

APPLICATION OF APPELLANT FOR REHEARING GRANTED.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, Alabama v. Dorothy L. WRIGHT, et al.
    Civ. 3502.
    Court of Civil Appeals of Alabama.
    April 15, 1983.
    Rehearing Denied June 1, 1983.

      Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    Gregory B. Stein of Blacksher, Menefee & Stein, Mobile, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from the denial by the Circuit Court of Mobile County of a petition for writ of mandamus filed by the Board of School Commissioners of Mobile County (Board) and directed to the Alabama State Teacher Tenure Commission (Commission). The petition for writ of mandamus was brought under authority of § 16-24-38, Code of Alabama 1975.

The matter began and has transpired as follows: Three teachers were employed by the Board as “Instructional Specialists.” Each of them had attained continuing service status or tenure under the Alabama Teacher Tenure Law. §§ 16-24-1 to -38, Code 1975. Each of them was employed by contract for a term of ten months for the 1980-1981 school year, August 11, 1980-June 16, 1981. On or about October 7, 1981, new contracts were sent to each of the three teachers providing employment from August 28, 1981 through June 4, 1982. (That term resulted in a decrease of one month with resultant loss of pay from the contract for 1980-81.) Each of the teachers signed the new contract and returned it to the superintendent with a letter attached. The letters were identical, as set out below:

“Dear Dr. Hammons:
“I was recently sent a contract for the 1981-82 school session pursuant to my Instructional Specialist position. Please be advised that I am returning this document to your office signed and dated; however, please be further advised that this contract is signed under protest and under duress.
“I am specifically concerned about the severe reduction in salary which is stated in the contract when compared to that which was expected given my additional experience and training. Prior to receipt of the contract dated September 28,1981,
I was given no official notice of any intent to reduce my salary.
“I ask that this letter be attached and filed with my 1981-82 contract as an official record of my position on this matter.”

On October 28, 1981, counsel for the teachers sent a letter to the superintendent relating to the contracts, stating that though the teachers had signed them, they had done so under protest and duress and did not consent to the provision which decreased the term of employment. Demand was made for a hearing before the Board, as provided for cancellation of a contract by §§ 16-24-8, -9.

Counsel’s letter was answered by a letter from the deputy superintendent for the Board. The letter stated that the signed contracts were on file, in effect, and no further action needed to be taken.

Appeal to the State Tenure Commission was filed by each teacher under authority of § 16-24-3, Code 1975. Hearing was held by the Commission and order entered on December 7, 1981. The Commission found the appeal proper and held that “[T]he action of the board in reducing the term of employment of the teachers was in effect a cancellation of an existing contract in that it changed a material provision of the contract in violation of § 16-24-5.” The Commission reversed the action of the Board for failure to follow cancellation procedures required by the Code.

The Board thereafter petitioned for writ of mandamus to review the order of the Commission. The writ was denied. The Board has appealed.

This court has before it the same record as that before the Commission and the circuit court. As there was no testimony taken in this case at any stage of the proceedings, it was the responsibility of the circuit court to review the decision of the Commission to determine if it was taken in accord with teacher tenure law. DeCarlo v. Tarrant City Board of Education, 52 Ala.App. 220, 291 So.2d 155 (1974). We review the ruling of the circuit court in the same manner.

There are lengthy contentions by the Board and by the Commission in brief. However, our review indicates that the case must primarily turn upon consideration of the appropriate provisions of the tenure law.

The teachers brought their case to the Commission, claiming right of direct appeal from the denial of a hearing by the Board under § 16-24-37. That section was added to the Teacher Tenure Act by the legislature in 1973. It generally provides a right of appeal directly to the Commission by a teacher with tenure when he or she has been dismissed or transferred without being afforded a hearing by the Board as required by § 16-24-6 or § 16-24-9. In the event of such an appeal, the Commission reviews the teacher’s petition and the answer of the Board and determines whether or not the Board has complied with the tenure law. Based upon its findings the Commission shall: “(1) order a hearing before the Board; (2) determine the teacher has been transferred or dismissed in violation of law and rescind the action of the Board; or (3) sustain the action of the Board.” § 16-24-37, Code 1975.

In this instance the Commission found that the action of the Board in reducing the term of the contract of the teachers from ten months to nine months was, in effect, a cancellation of the contract in violation of § 16-24-5.

It is in the determination that the Board had, in effect, cancelled the contract of the teachers that we find the Commission erred.

At the time the teachers were presented the contracts for school year 1981-82, the contracts which they had signed for the year 1980-81 remained in effect. § 16-24-3 provides that a contract of employment of any teacher with tenure shall remain in full force and effect unless superseded by a new contract signed by both parties or cancelled as provided in § 16-24-9 or § 16-24-10. Thus they were fully protected under the same contract until it was cancelled for one of the grounds set out in § 16-24-8 after hearing, according to § 16-24-9. There clearly could not be a cancellation of the effective contract merely by the Board presenting a new one. Schneider v. Mobile County Board of School Commissioners, 378 So.2d 1119 (Ala.Civ.App.1979), cert. denied, 378 So.2d 1122 (Ala.1980). The petition and answer before the Commission does not indicate that the Board presented the new contract with any accompanying threats of dismissal or notice of cancellation. Though the petitioner claims duress, there are no facts alleged describing any duress. It must be presumed that teachers were familiar with all the protection from dismissal afforded them by the tenure act.

The apparent position of the Commission and its argument here is that the signing of the new contract had no legal effect. There is only reference to a cancellation of the prior contract. Commission submits that the signing of new contracts is not the issue; the question is whether they consented to the change. It insists that attaching the letter after signing discloses lack of consent.

We have carefully examined the letter of the teachers and find no reference therein to failure to consent. The letters mention “protest” and “duress” and profer concern about the resulting reduction in salary. However, the letter first acknowledges receipt of the contract, signing it, dating and returning it. The first reference to absence of consent is found in the letter of the teachers’ counsel, sent to the superintendent some three weeks after the signing. Expression of lack of consent at that time could have no legal effect upon the prior execution of the contract. Neither could the concurrent demand for a hearing under the tenure law.

We are cited to no authority on the effect of first signing an employment contract and thereafter protesting the economic impact and expressing concern for having accepted the terms of it. The use of the term “signed under protest” appears to have no legal significance as used in this instance. It implies only that the signing was done contrary to the desire of the signor. See Steinberg Press, Inc. v. Charles Henry Publications, Inc., 68 N.Y. S.2d 793 (1947).

The assertion of duress apparently refers to economic pressure or the need to keep their jobs. It is said that economic duress must be based on conduct of the opposite party and not merely on the necessities of the purported victim. The entering into a contract with reluctance or even dissatisfaction with its terms because of economic necessity does not, of itself, constitute economic duress invalidating the contract. Unless unlawful or unconscionable pressure is applied by the other party to induce the entering into a contract, there is not economic compulsion amounting to duress. Chouinard v. Chouinard, 568 F.2d 480 (5th Cir.1978). The record fails to disclose any basis for the claim of economic duress.

It is the opinion of this court that the contract of each teacher in force and effect at the time the new contract was presented to and signed by them was not cancelled but was superseded by the new contract under § 16-24-3; that the signing by both parties effected a valid contract; that the accompanying letter of the teachers merely expressed dissatisfaction and did not affect the validity of their acceptance; that the Commission erred as a matter of law in finding there had been a cancellation of the teachers’ contracts and a failure by the Board to comply with the provisions of §§ 16-24-9, -10. Therefore the denial of the writ of mandamus by the Circuit Court of Mobile County was error, and the same is reversed with direction to that court to issue its writ to the Commission, directing said Commission to set aside its order of December 7, 1981, and dismiss the direct appeal of each of the teachers.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY, J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

I cannot, under the facts of the instant appeal, agree that the teachers consented to the “new” contract.

The Teacher Tenure Act has as its primary purpose the securing of permanency in the teaching force and is remedial in nature and is therefore to be liberally construed in favor of the teacher. Alabama State Tenure Commission v. Board of School Commissioners of Mobile County, 378 So.2d 1142 (Ala.Civ.App.1979).

With the above principle in mind, it appears to me that rather than “consenting” to the contract in question the teachers took rather deliberate steps to indicate to all concerned what their position was regarding the contract.

I note that the contract was signed on October 7 with the accompanying letter and just three weeks later the teachers’ attorney contacted the school board and specifically informed the board that the teachers did not consent to the contract. I further note that while the record before this court is not a paragon of clarity it appears that both the Tenure Commission and the circuit court decided the case on what might be termed the merits rather than whether the contract was signed with consent. Put another way, the case was decided on the basis that the school board by reducing the pay period, in effect, can-celled the contract.

The majority opinion does not address the issue of whether the action of the school board was a cancellation of the teachers’ contract; therefore, neither does this dissent.

I should not be understood as finding that the action of the teachers was the best or most appropriate way to ultimately challenge the contract, only that under the instant circumstances a conclusion that the teachers consented to the contract is contrary to the stated purpose of the Teacher Tenure Act.

      . There is either error or mistake in the finding of violation of § 16-24-5. That section has no relation to cancellation, but refers to transfer.


author: TORBERT, Chief Justice. FAULKNER and JONES, Justices

text:
    Ex Parte Dorothy L. WRIGHT, et al. (In re BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, Alabama v. Dorothy L. WRIGHT, et al.)
    82-877.
    Supreme Court of Alabama.
    Nov. 10, 1983.

      Gregory B. Stein, of Blacksher, Menefee & Stein, Sp. Asst. Attys. Gen., Mobile, for petitioner.
    Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for respondents.
   TORBERT, Chief Justice.

Certain Mobile County public school teachers, who had attained continuing service status under the Alabama Teacher Tenure Act, were presented new contracts for the next school year that reduced by one the number of months they would be employed, with a resulting reduction in pay. Each signed and returned the contract with a letter attached expressing the teachers’ displeasure and advising that the contract was signed “under protest and under duress.” Subsequently, an attorney acting for the teachers sent a letter to the superintendent, again stating the teachers’ displeasure with the contract. The school board maintained the new contracts were valid.

The teachers, contending the new contracts were invalid, appealed to the State Tenure Commission, which found the appeal proper. The Commission found that the school board had improperly cancelled the teachers’ contracts. The board then petitioned for a writ of mandamus to review the order of the Commission. The writ was denied and the board appealed. The Court of Civil Appeals, 443 So.2d 35, reversed the decision of the Commission. The State Tenure Commission (composed of Dorothy L. Wright, et al.) sought review of the Court of Civil Appeals decision by writ of certiorari, which we granted. We reverse.

The part of the Teacher Tenure Act that is central to this litigation is Code 1975, § 16-24-3, which in pertinent part states:

“The contract of employment of any teacher who shall attain continuing service status shall remain in full force unless superseded by a new contract signed by both parties, or cancelled as provided in §§ 16-24-9 or 16-24-10

It is uncontroverted that the teachers’ prior contracts were not cancelled under the provisions of § 16-24-9 or § 16-24-10. We are therefore confronted with the issues of whether the new contracts superseded the old, and if they did, whether the adoption of the new contracts could be used to effectively cancel the old contracts.

The Court of Civil Appeals concluded that the teachers had consented to the change, and that their signing of a new contract incorporating that change brought the board’s actions within the terms of § 16-24-3. We disagree. We do so because ordinary contract principles do not control when they conflict with the intent of the tenure law. Barger v. Jefferson County Board of Education, 372 So.2d 307 (Ala.1979); Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So.2d 233 (1972).

It is well established that the Teacher Tenure Act has as its primary purpose the securing of permanency in the teaching force and that it is remedial in nature and is therefore to be liberally construed in favor of the teacher. State Tenure Commission v. Board of School Commissioners of Mobile County, 378 So.2d 1142 (Ala.Civ.App.1979); Haas v. Madison County Board of Education, 380 So.2d 873 (Ala.Civ.App.1980). While the letters by the teachers, attached to the signed contracts, do not use the words “I do not consent,” it is clear that the teachers did not agree with the terms of the new contract and failed to consent to the changing of the terms. The teachers’ attorney sent another letter to the superintendent, further stating the teachers’ position that they did not consent to the terms of the new contracts. In light of the liberal construction principle, we hold that the teachers took adequate steps to state their position as to the contract.

Even under common law contract principles, the return of the proposed new contract with the attached letter was more in the nature of a counter-offer than an acceptance. An acceptance is required to be identical with the offer; otherwise, there is no meeting of the minds and no agreement. Smith v. Chickamauga Cedar Company, 263 Ala. 245, 82 So.2d 200 (Ala.1955). The teachers’ actions with regard to the proposed contract indicate that their “acceptance” was not identical to the offer. Therefore, there was no meeting of the minds and therefore, no new contract.

Even if this Court were to find that the teachers did agree to the new contract, we would apply the principle that an attempted waiver of the protection afforded by teacher tenure laws is ineffectual on public policy grounds. Haas v. Madison County Board of Education, 380 So.2d 873 (Ala.Civ.App.1980). The Teacher Tenure Act creates permanency by providing that cancellation of a teacher’s contract can be done only on the grounds set forth in Code 1975, § 16-24-8, pursuant to the procedure set out in Code 1975, § 16-24-9. Faircloth v. Folmar, 252 Ala. 223, 40 So.2d 697 (1949). The Court of Civil Appeals decision in effect would mean that the teachers, by signing a new contract, waived any rights they had to protest the partial cancellation.

There can be no quéstion that there was a partial cancellation, since the teachers’ old contract, providing that they would work ten months at a certain annual salary, was replaced by a new contract that provided they would work only nine months at a commensurately reduced annual salary. Although Code 1975, § 16-24-4, permits school boards to make changes in compensation if they are made “to accord with a general salary schedule adopted by the employing board,” that is all it permits. It does not allow the board to reduce the number of months the teacher will be employed. While it may be a technical distinction to say that the board could reduce the salaries directly but could not shorten the duration of employment with a resulting reduction in pay, the liberal construction policy in favor of the teachers compels us to find that the board cannot exceed the specific limited provisions for changed compensation.

REVERSED AND REMANDED.

SHORES, EMBRY and ADAMS, JJ., concur.

MADDOX, ALMON, and BEATTY, JJ., concur in the result.

FAULKNER and JONES, JJ., dissent.

FAULKNER and JONES, Justices

(dissenting).

We would affirm, agreeing with the reasoning in the majority opinion by the Court of Civil Appeals in this ease.


author: WRIGHT, Presiding Judge.

text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, Alabama v. Dorothy L. WRIGHT, et al.
    Civ. 3502.
    Court of Civil Appeals of Alabama.
    Dec. 14, 1983.
   WRIGHT, Presiding Judge.

Whereas, on November 10, 1983, the Supreme Court of Alabama, 443 So.2d 40, reversed the decision of this court entered on April 15, 1983, 443 So.2d 35, in this case and remanded same for further proceedings,

Therefore it is adjudged that the judgment of the Circuit Court of Mobile County, heretofore entered in this cause is affirmed in all respects.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Jerry A. SMITH v. Elizabeth A. SMITH.
    Civ. 3897.
    Court of Civil Appeals of Alabama.
    Dec. 14, 1983.

      James W. Parkman III, Dothan, for appellant.
    H.J. Martin of Amos & Martin, Dothan, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil contempt proceeding against a father for his failure to pay court ordered child support to his former wife. The primary questions involve credits against his arrearage.

The parties were divorced on October 9, 1976 after a twelve year marriage. Mr. Smith, the husband and father, was ordered to pay to Mrs. Smith, the wife and mother, the sum of $250 each month for the support of their three minor children, whose custody was granted to the mother. The divorce judgment has never been modified.

In June 1983 the mother sought to place the father in contempt of court for his failure to make the required child support payments. After both parties testified before the circuit court, a judgment was entered which found the father to be in contempt, determined his arrearage to be $19,-950, and allowed him to purge himself of contempt by making monthly payments of $400 to the mother, $250 thereof to be applied to current child support payments and $150 to past-due compensation. The father duly appealed. We treat the appeal as being certiorari proceedings.

As to the individual children, the father contends that he was entitled to credits against his arrearage for various reasons. The facts and the law shall be developed and applied as to the issues concerning each child’s support.

Barbara

Barbara married on October 22, 1979. At that time she was only fifteen years of age. She is now nineteen and resides in Florida with her husband. The father contends that, on account of Barbara’s marriage, he is due a credit, commencing as of the date of her marriage, against his delinquent child support. No such credit was allowed by the trial court:

This aspect of the ease is controlled by Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982), where the ordered child support was set at $60 per week for two daughters. The father was current in his payments when the older daughter married but, at that time, he unilaterally reduced his payments to $30 each week. The mother sought a judgment for the weekly difference of $30 between what he paid and what she contended he was due to pay. In substance, the trial court relieved the father of such difference from the date of the daughter’s marriage. We reversed, holding that a judgment for child support arrearage should have been entered, and the following was stated:

“We have consistently held in recent cases under similar facts that a father may not unilaterally reduce child support payments where the decree does not so provide. Events such as the marriage of a minor child provide cause to seek modification. See, Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.), cert. denied, 401 So.2d 78 (Ala.1981). See also, In re Weaver, 412 So.2d 286 (Ala.Civ.App. 1982); McDaniel v. Winter, 412 So.2d 282 (Ala.Civ.App.1982); Parker v. Parker [415 So.2d 1089], (Ala.Civ.App. 1982).”

412 So .2d at 822.

For those same reasons, the father in the instant matter may not be credited because of Barbara’s marriage or due to her recently reaching her majority, for neither automatically modified the child support judgment, but either, or both, only provided cause for seeking child support modification. Wood v. Wood, 434 So.2d 800 (Ala.Civ.App.1983). There was no abuse of discretion and the trial court did not err in not allowing any credit for Barbara’s support.

Bobby

Because the mother had difficulty controlling their son, Bobby, she allowed him to reside with his father in accordance with the boy’s wishes. From about eighteen months after the divorce until the present time, Bobby has lived either with the father or with his father’s parents. The father provides food and clothing for this son and purchased an automobile for him. There was no testimony as to the amount of expenditures which were made by the father for Bobby’s support, maintenance, or education at any time. The father complains that the trial court erred in not granting credit against his delinquent child support during the extended period of time that Bobby has lived with him. For the reasons which follow, we find no such error in that regard.

More than one child was here involved and the trial court could not overlook the support needs of the third child, Deborah, who has always been in the mother’s actual custody except for a few weeks. Sutton v. Sutton, 359 So.2d 392 (Ala.Civ. App.1978). The divorce judgment as to support did not provide for a reduction of a particular amount when each child married, reached majority, or became self-supporting (including being actually supported by and living with either the father or a third person); and a unilateral reduction in the amount of child support payments could not be made by the father in this case. Owens v. Owens, supra; McDaniel v. Winter, 412 So.2d 282 (Ala.Civ.App.1982); Weaver v. Weaver, 401 So.2d 77 (Ala.Civ. App.), cert. denied, 401 So.2d 78 (Ala.1981).

We certainly have no quarrel with the fair, just, and equitable rule of law as it was stated in Nabors v. Nabors, 354 So.2d 277 (Ala.Civ.App.1978), that, in the discretion of the trial court, an arrearage of ordered child support may be credited for amounts which were expended by an obligated parent when that parent actually furnishes support for a child while in his custody or in the custody of another. However, the unilateral reduction prohibition, as it was delineated in the Owens case, supra, and in the other similar recent decisions cited therein, is an element to be given much consideration by a trial court in the exercise of its discretion. Judicial discretion still remains with the trial court as to credits. McDaniel v. Winter, supra. For a case which reconciles any imagined conflicts between the Owens and Nabors decisions, see Kinsey v. Kinsey, 425 So.2d 483 (AIa.Civ.App.1983).

Also, the father wholly failed to present any direct or opinion proof as to any average or specific amounts which he furnished or expended for any or all purposes at any time or during any given period of time for Bobby’s support. That lack of proof, in itself, is justification enough for the discretionary denial of a credit concerning Bobby’s maintenance by his father. Credit is not allowed where the father is not able to prove such expenditures. Wood v. Wood, supra; Anonymous v. Anonymous, 428 So.2d 109 (Ala.Civ.App.1983); Weaver v. Weaver, supra. In the absence of proof of such facts, there was no abuse of the trial court’s judicial discretion in disallowing credit for Bobby’s support while living with his father. Under the circumstances the amount of any credit would be mere speculation. Consequently, for this court to reverse on that alleged ground would be an unauthorized substitution of our judgment upon factual matters for that of the trial court.

Deborah

The youngest child, Deborah, is seventeen years of age and has resided with her mother since the divorce except for one period of time when she lived with the father in order to attend a particular school. The mother swore that Deborah stayed with the father for only six weeks at that time but the father testified that she dwelled with him for more than one year.

The award or the denial of a credit against child support is within the trial court’s discretion and the decision of the trial court will not be reversed in the absence of an abuse thereof. Kinsey v. Kinsey, supra. In Marsh v. Marsh, 426 So.2d 847 (Ala.Civ.App.1983), the trial court had decided that the father was not entitled to a credit against child support arrearage. There was a conflict in the trial evidence, of from six weeks to fourteen weeks, as to how long the child was maintained in the father’s home. This court affirmed the decision of the trial court. It was determined that the trial court did not abuse its discretion and due consideration was given by this court to the relatively short period of time there involved. Likewise, the trial court in the present case did not abuse its discretion in denying a credit to the father for there was credible evidence that Deborah’s stay with her father was as brief as six weeks.

Additionally, the rationale as to Bobby’s support pertaining to the absence of proof and to a lack of an abuse of discretion is equally applicable as to a credit as to Deborah’s living with her father.

For the above reasons we find no palpable abuse of discretion by the trial court, and no error, in failing to grant to the father any credits against -the arrearage occasioned by Barbara’s marriage and reaching her majority, because of Bobby’s living with his father or on account of Deborah’s staying with him for a relatively short period of time. Finally, the trial court had the discretion to conclude that the entire amount of support awarded was necessary for Deborah’s support and thus the trial court was authorized to refuse to reduce the arrearage by credits occasioned by the situations which had existed as to Barbara and Bobby. Sutton v. Sutton, supra.

The trial court acted within its discretion, or within the law, in not allowing credit for those matters in this case. If there is any relief due to the father for ordered future child support, it lies in modification proceedings. Apparently, modification of the child support judgment has never been sought by him.

Other Credits

As an additional issue, the father contends that he was not in arrears in his support payments in the ascertained amount of $19,950. During that time period between the date of the divorce judgment and the hearing on the rule nisi, the father was due to have made eighty-one monthly payments of $250 each, totaling $20,250. As evidence of the payments made by him to the mother during that time frame, the father only introduced three checks payable to the mother for $100 each. Evidently, he was given credit for $300 for those three payments.

The father swore that he gave to the mother about $500 a year in addition to purchasing clothes in the approximate annual amount of $250 for Deborah but that he could not locate any additional checks other than the three for $100 each. The wife denied the $500 yearly payments, stating that he had only paid a total of $200 to her since the divorce; however, she admitted to receiving the three $100 checks when they were exhibited to her. She further stated that he purchased clothing for Deborah only as Christmas presents or out of the goodness of his heart. We will not reverse under this state of conflicting facts. The ore tenus rule applies and, also, the award of credits is discretionary with the trial court. Sutton v. Sutton, supra. There was no palpable abuse of discretion by the trial court in not granting credit for those alleged payments of money and clothing.

In addition to the three $100 checks, the mother expressly testified that the father paid to her $100 in June 1983. He was not credited by the trial court with that $100 payment. We affirm the judgment of the trial court but, since the mother admitted that she received that June 1983 payment of $100, we instruct the circuit court to immediately enter an order granting to the father a credit, as against the ascertained child support arrearage, for that payment of $100 in June 1983.

We affirm with instructions.

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 WITH INSTRUCTIONS.

All the judges concur.