text:
    In re The Matter of Jason Paul SHIVERS, Candy Lynn Shivers and Peter DeWayne Shivers. Larry David SHIVERS and Donna Hadley Shivers v. STATE DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 3724.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Rehearing Denied Sept. 28, 1983.

      John G. Cherry, Jr., Bay Minette, for appellants.
    E.E. Ball of Owen & Ball, Bay Minette, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

After receiving an anonymous report of child neglect regarding Jason, Peter and Candy Shivers on September 29, 1980, personnel from the Baldwin County Department of Pensions and Security (DPS) visited the Shiverses’ home. They found conditions there to be filthy. There were holes in the wall, dirty floors, and garbage knee-deep in the kitchen. The linens on which the children slept were black with dirt. The children were improperly clothed, dirty, malnourished and smelled of urine. One child had such a severe case of diaper rash that the affected area was raw and bleeding.

Numerous subsequent visits by DPS and Public Health personnel between November 21,1980 and May 26,1981, revealed that the home continued to be in “deplorable” condition. Food was thrown about. The house was cluttered with dirty diapers, dirty clothes, trash and beer cans. There was no evidence of even a minimal attempt at cleaning. There was no electricity nor running water. The entire house smelled of urine and body odor. The children were caked with dirt and slept on urine-soaked mattresses, which were black with dirt.

Due to the continued filthy conditions, DPS petitioned for and received temporary custody of all three children on June 16, 1982. Physical examinations at that time showed the two younger children, twin boys Jason Paul and Peter DeWayne, to be anemic and malnourished. Jason Paul had a neurological disorder. Although twenty-five months old, he could neither talk nor crawl. Expert testimony indicated that this was due to neglect.

The oldest child, Candy Lynn, appeared stunted and very withdrawn, indicating obvious abuse. She had a deep cigarette burn to the skull and impetigo secondary to untreated infected insect bites. She also suffered from rectal bleeding caused by Giar-dia, a gastrointestinal parasite, normally caused by poor hygiene. Evidence shows that she suffered from one of the worst cases of Giardia ever reported in the southeastern United States.

Following the award of temporary custody and placement of the children in foster homes, DPS entered into a service agreement with the Shiverses, whereby the children would be returned to them if the Shiv-erses kept the house clean and showed that they would care for the children’s medical needs. DPS informed the Shiverses that if conditions did not improve, the department would seek permanent custody. To aid the Shiverses in improving home conditions, DPS provided employment, housing and hygiene counseling.

Conditions in the home did not, however, improve. Subsequent DPS visits showed dirty dishes and clothes still lying about. There was still no running water or electricity. The Shiverses also failed to fill out forms for free medical care and failed to keep appointments to visit their children.

Consequently, DPS petitioned for permanent custody. At trial, in addition to the previously stated evidence, evidence was admitted showing that Mr. Shivers was a heavy drinker; that the family had been evicted for nonpayment of rent; that both parents had previously been convicted of burglary; and that Mr. Shivers was on probation relating to another conviction for theft. It was also shown that the mother had lost custody of another child eight years earlier and that she had made no attempt to visit the child for the last seven years, even though she had visitation rights and the child lived in the same general community.

After hearing the foregoing evidence, the Juvenile Court of Baldwin County awarded permanent custody to DPS on March 21, 1983.

The natural parents appeal here. They raise six issues on appeal. They assert that the trial court failed to inform them of their possible loss of custody as required by Rule 24 of the Alabama Rules of Juvenile Procedure (A.R.J.P.). They contend that with such knowledge they could have improved home conditions, worked out an agreement with DPS, or discussed viable alternatives with counsel. Rule 24 provides that the juvenile court should inform the parties of their rights, the allegations in the petition, and the nature of the proceeding. Similarly, § 12-15-65(b), Code of Alabama 1975, provides that: “The parties [to juvenile proceedings] shall be advised of their rights under the law in their first appearance at intake and before the court.”

Only after the requirements of § 12-15-65(b) have been met, may the trial court proceed to make a proper disposition of a case. Gallagher v. State, 425 So.2d 1079 (1983). However, where the parties have actual notice of the allegations contained in the petition, strict compliance with § 12-15-65 is not required. Phillips v. Alabama Department of Pensions and Security, 394 So.2d 51 (Ala.Civ.App.1981). The record shows that the petition adequately notified the parents and that they were otherwise informed that their rights were in jeopardy. Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.1979). Therefore, there was no error.

The parents also assert that the trial court erred in not requiring DPS to provide evidence of alternative custody plans for the three children. Such evidence is not required. Smith v. State Department of Pensions and Security, 340 So.2d 34 (Ala.Civ.App.1976). Although we are not bound by the decision in Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976); Smith, supra at 37, the record clearly shows that the due process requirements enumerated there have been met. Several alternatives including counseling, temporary custody and assistance were attempted before the Shiverses’ rights were terminated. The trial court, finding none of these alternatives to be in the children’s best interest, properly placed them under DPS custody. All that DPS was required to show was that terminating the parents’ rights was in the children’s best interest and that the department was equipped to provide care. § 12-15-71(a)(3)(a), Code 1975, In re Sanders, 420 So.2d 790 (Ala.Civ.App.1982). We believe the record shows that DPS so proved and that there was sufficient evidence to support the trial court’s determination of custody.

The parents also assert that the trial court erred by (1) allowing DPS to use leading questions on direct examination; (2) allowing a nurse to testify as to proper hemoglobin counts; and (3) taking judicial notice of material facts in dispute. We find no ground for reversal. In juvenile proceedings, where the proper custodian of a child is to be determined, the trial court has wide latitude to decide which evidence it will consider; which is competent, relevant and material. Worley v. Jinks, 361 So.2d 1082 (Ala.Civ.App.1978). The weight to be afforded the evidence is a matter of judicial discretion. Fassina v. Fassina, 401 So.2d 113 (Ala.Civ.App.1981). The record shows that identical evidence was admitted without objection. Thus, all three alleged errors are harmless within Rule 45, A.R.A.P. Bowlen v. State Department of Pensions and Security, 51 Ala.App. 665, 288 So.2d 728 (1974).

The final alleged error, admission of the mother’s loss of custody of another child eight years earlier, was not error at all. It was properly admitted to show her general lack of concern for the welfare of her children. Because the child’s best interest is the controlling consideration, the trial court may examine the conduct and activities of the parent. Crews v. Houston County Department of Pensions and Security, 358 So.2d 451 (Ala.Civ.App.1978).

Finding no prejudicial error, wé affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Charles D. EBERT, III v. Holly Holm EBERT.
    Civ. 3737.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Rehearing Denied Sept. 28, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-20.

      Thomas A. Deas and Donald C. Partridge of Deas & Boone, Mobile, for appellant.
    Reggie Copeland, Jr. of Nettles, Barker & Janecky, Mobile, for appellee.
   BRADLEY, Judge.

This is an appeal from the denial of a motion to modify a divorce decree.

On September 3, 1981 the parties to this appeal were divorced by a decree of the Circuit Court of Mobile County. In that decree the wife was awarded custody of the parties’ four minor children, and alimony and child support of $1,000 per month. The father also was ordered to maintain hospitalization insurance for the children, pay for major medical expenses incurred by the children, and to pay for their private school tuition, uniforms and books. All four children attend St. Paul’s, a private school in Mobile, Alabama. The court also disposed of certain properties of the parties and ordered the husband to pay the wife’s attorney fee.

Subsequently, the ex-wife filed a petition for a rule nisi, and the ex-husband filed a petition to modify the divorce decree to relieve him of paying the children’s private school costs in the approximate amount of $745 per month.

On January 14,1983, the day of the hearing, the parties entered into an agreement whereby the ex-wife agreed to relieve the ex-husband of certain obligations under the decree and, in exchange, the ex-husband agreed to deed his one-half interest in the family’s homeplace to the ex-wife. The husband was required to continue making the mortgage payment on the house but at a reduced rate. The agreement was adopted by the trial court and, after a hearing on the other aspects of the petitions to modify and for the rule nisi, the trial court denied the petitions. The ex-husband appeals.

Appellant contends here that the trial court erred by refusing to eliminate that ⅝ provision in the divorce decree requiring' him to pay for the children’s private school expenses. He says his income has declined to the point where he can no longer pay for those obligations required of him in the divorce decree, especially the private school expenses.

Alimony and child support awards can be modified only upon a showing of a material change in circumstances, and the modification of such a decree is within the sound discretion of the trial court and will not be reversed except for an abuse of that discretion. Sansom v. Sansom, 409 So.2d 430 (Ala.Civ.App.1981). Also, the movant has the burden of proving a material change in circumstances. Jenkins v. Jenkins, 418 So.2d 137 (Ala.Civ.App.1982).

In deciding whether to modify a child support decree, a court must consider the needs of the children and the ability of the father to satisfy those needs. Pruett v. Pruett, 333 So.2d 580 (Ala.Civ.App.1976). The father does not argue that there has been a change in the children’s need for a good education nor that the private school they attend is not providing a good education, but he is arguing that his income has declined to the point where he can no longer pay for private school education.

In support of his contention, the father says that he has suffered a nineteen percent decrease in income since the divorce decree in 1981 and an increase in expenses of twenty-five percent. He points out that he is presently being required to pay out $3,000 more a month under the decree than he receives as spendable income.

The evidence shows that the father is a plastic surgeon who has been practicing in Mobile for about nine years. His gross earnings for 1980 were about $177,000, with operating expenses of about $55,000. In 1981 his gross earnings were $122,000, with operating expenses amounting to $82,000. The 1982 gross earnings were $147,000, with operating expenses of $75,000. For 1982 the appellant said his accounts receivables amounted to about $6,000. The appellee testified that in 1980 the appellant’s accounts receivables amounted to about $50,000.

The record further shows that the appel-lee has paid some of appellant’s financial obligations and agreed to a reduction of some of appellant’s other obligations under the decree.

The record further shows that appellant is paying about $700 per month for a $300,-000 term life insurance policy and he testified that he had not attempted to find a cheaper rate of premium for a similar policy-

Although appellant says that he is required by the divorce decree to pay $3,000 more a month than he receives in net income, he asks only that he be relieved of the private school expenses for the children which presently amount to $745 a month.

In reviewing the trial court’s -decision not to modify the divorce decree by eliminating the children’s private school expenses, we look to see if the court abused its discretion in making such a decision.

Considering the conflicts in the evidence and particularly the conflict relating to the appellant’s accounts receivables, the reductions in the appellant’s obligations under the divorce decree agreed to by appel-lee, the possibility that a cheaper rate of premium on appellant’s term life insurance policy could be obtained, and that some of his other expenses could be reduced, we find that the trial court did not abuse its discretion in refusing to modify the divorce decree by eliminating appellant’s obligation for his children’s private school expenses. We believe that the trial court could have reasonably decided that appellant failed to satisfy the burden cast upon him of proving a material change in his circumstances to warrant a modification of the divorce decree.

Appellee’s request for an award of attorney’s fee on appeal is denied.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    ALLSTATE INSURANCE COMPANY, a corporation v. Marion REEVES d/b/a Reeves Body Shop.
    Civ. 3628.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.
    Rehearing Denied Oct. 5, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-126.

      Michael Gillion of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    John M. Tyson, Jr., Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an unjust enrichment case.

On January 30, 1982, a 1979 Datsun 280 ZX automobile was stolen from its Texas owner. The local Texas police department entered an erroneous vehicle identification number into the computer. Allstate Insurance Company (Allstate), being the insurer of such vehicle against theft, paid the owner for the car and obtained title thereto on April 12, 1982.

The vehicle was involved in an accident in Mobile on February 23, 1982. Reeves, who was in the wrecker business, was summoned by the Mobile Police Department to tow the Datsun to his place of business. In April 1982 and also in July 1982, Reeves reported the automobile as being an unclaimed vehicle to the Department of Revenue of the State of Alabama. On August 2, 1982, the department informed Reeves that the Dat-sun was neither titled nor registered in Alabama; that it was not listed as stolen in their records and that “[Disposition of the vehicle can now proceed in accordance with the proper statutes.”

Reeves did not attempt to title the car pursuant to any code section. No auction thereof was held, but he did obtain two separate bids, of $1,450 and $1,500, upon the vehicle in its wrecked condition. He decided to repair the automobile and to keep it as his personal vehicle. He and his wife used the Datsun for their personal and family uses.

In September 1982, Reeves ran an advertisement in the want ad section in two different issues of a Mobile newspaper as to the car being abandoned. Thereby, the curiosity of two members of the Mobile Police Department was aroused, which resulted in their ascertaining that Allstate had become the owner of the vehicle and that it had been stolen. On September 23, 1982, the Mobile Police Department removed the Datsun from Reeves’ possession.

The repairs performed by Reeves were reasonably worth $2,840.80, according to tendencies of the evidence. It was admitted that the vehicle was fully repaired. Reeves charged $3 daily for the storage of the automobile.

Reeves sued Allstate in detinue for the possession of the Datsun and for unjust enrichment based upon its storage and upon his work, labor and materials in repairing it. After a non-jury trial, judgment was rendered holding that Allstate had title to the automobile, but that Reeves was entitled to a lien upon the vehicle in the amount of $3,000. Allstate paid the $3,000 and appealed.

The primary issue in this case is whether plaintiff should recover from defendant the costs expended in towing, repairing and storing the car. Plaintiff may not recover either on the basis of a statutory lien or an equitable lien.

Section 32-13-3, Code of Alabama 1975, part of Alabama’s Abandoned Motor Vehicle Act, gives an automobile dealer, wrecker service, or repair service owner the authority to sell an abandoned vehicle in order to satisfy a statutory lien he has in the vehicle for its towing and storage. Bryce Hospital Credit Union, Inc. v. Warrior, 50 Ala.App. 15, 276 So.2d 602 (1973). The act does not permit one performing towing and storage service, at the request of a peace officer, the right to retain the vehicle for his own personal use, nor to receive pay except a reasonable fee for the towing and storage, from the proceeds of a sale according to the statute.

Section 32-13 — 4, Code of Alabama 1975, requires that notice be given of the public sale either by publishing in a local publication for two consecutive weeks or by posting at the county courthouse if the county has no available publication. Plaintiff did publish a notice but it failed to comply with the statute. The notice was as follows: “To whom it may concern — one abandoned, WRECKED 1979 Datsun 280-ZX, Serial number HS130 142 712 at Reeves Body Shop, 342-6622.” Section 32-13-4 requires first publication of notice of the public sale at least twenty days before the date of sale. “The notice shall include a complete description of the vehicle and the date and place the vehicle was found or taken into possession.” No sale was held in any event.

Ás indication of plaintiff’s lack of good faith, it is to be noted that he had repaired the car for use by him and his wife after learning that there was no title registered in Alabama and a month before publishing the insufficient notice. Without benefit of sale or title, he had the car insured, listing him and his wife as principal drivers. His actions clearly indicate he did not intend to comply with the statutory requirements, but rather to convert the car to his own use, contrary to law. Plaintiff’s violation of Alabama’s Abandoned Vehicle Act results in the loss of his statutory lien.

Equitable liens arise only when improvements or expenditures are made in good faith and under mistake as to title and not where expenditures are made with knowledge of the real state of the title. Johns v. Gilliam, 134 Fla. 578, 184 So. 140 (1938).

Plaintiff did not act in good faith when he repaired the car for his personal use, knowing he did not have title to the car. One is not entitled to the value of repairs made if they were for his own benefit and for which he received full use. See Pittman v. Pittman, 257 Ala. 80, 57 So.2d 510 (1952). Moreover, he did not have a reasonable expectation of compensation since he intended to keep the car for personal use rather than sell it or charge anyone for its repair. One may not recover for services gratuitously rendered to another with no expectation of payment. Jacks v. Sullinger, 284 Ala. 223, 224 So.2d 583 (1969). Plaintiff had no reasonable expectation for compensation, for a garageman acquires no lien for repairs to an automobile without the knowledge or consent of the owner. W.S. Brewbaker, Inc. v. McClinton, 37 Ala.App. 474, 70 So.2d 813 (1954).

The recovery of the value of goods or services on the principle of unjust enrichment is founded upon equity. There can be no equity in requiring one to pay for an unintentional benefit conferred upon him without his knowledge or consent, by the voluntary, officious and self-serving acts of the one demanding payment. The conduct of plaintiff makes evident that he repaired the vehicle not to confer a benefit upon the rightful owner nor to protect his interest but to serve his own unlawful purpose of taking a valuable property as his own. Defendant incidentally, and contrary to the intention of plaintiff, may be enriched but not unjustly enriched. 66 Am.Jur.2d Restitution and Implied Contracts, §§ 5, 23; 5 A.L.R. 4th 311, § 8(a) 343; Restatement of the Law, Restitution § 117; Hartford Fire Insurance Co. v. Albertson, 59 Misc.2d 207, 298 N.Y.S.2d 321 (1969). To permit plaintiff to recover would encourage others in such business to assume ownership and control of the property of others without consent or duty contrary to law and recover the value of repairs if discovered. Had plaintiff properly complied with the statute he would have been entitled to a lien for a reasonable fee for towing and storage service. These services were for protection of the property of defendant and authorized by statute. The reasonable value of such service is recoverable. We find the trial court incorrectly applied the law in entering judgment for the value of the repairs. The judgment is reversed in that respect. The case is remanded for determination of the reasonable value of towing and storage of the vehicle until the date that plaintiff took personal possession of it for repairs and subsequent use. When so determined, judgment for plaintiff may be rendered therefor.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.


author: HOLMES, Judge.

text:
    Jerry Donald LOTT v. Mary Frances LOTT.
    Civ. 3725.
    Court of Civil Appeals of Alabama.
    Sept. 7, 1983.
    Rehearing Denied Oct. 5, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-123.
    Talmadge H. Fambrough, Pell City, for appellant.
    Mark Baker of Legal Services Corporation of Ala., Anniston, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court, after an ore terms hearing, divorced the parties and in pertinent part awarded the wife periodic alimony plus an attorney’s fee.

The husband through able counsel appeals, contending that because of the sources of the husband’s income such funds are not subject to an award of periodic alimony. In the alternative, the husband contends that because of the amount of the award, the trial court so abused its discretion as to require reversal. The husband’s final contention is that the trial court erred in the award of an attorney’s fee. We find no error requiring reversal and affirm.

Viewing the record with the attendant presumptions accorded the trial court’s action, the following is revealed:

The parties were married in 1971. The husband was in the military service for a number of years. The wife has, during the marriage, been employed. The husband has had several heart attacks. The wife is in poor health.

The husband, as a result of his disability, receives approximately $700 per month from social security. He receives approximately $1,150 in the form of disability benefits from the Veterans Administration.

The trial court awarded the wife $750 per month for twelve months and thereafter she was to receive $600 per month as periodic alimony. Additionally, the wife was awarded a $750 attorney’s fee.

As indicated, the husband contends that social security benefits and Veterans Administration disability payments are not sources of “income” upon which an award of periodic alimony can be based. The husband cites to this court § 30-2-51, Ala.Code (1975), which is this state’s general alimony statute. Specifically, the husband states that the above sources of funds are not such an “estate” or “income” contemplated within the purview of § 30-2-51.

In Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979), this court held that military retirement benefits could be a source of “income” from which award of periodic alimony could be made. See also Johnson v. Johnson, 415 So.2d 1102 (Ala.Civ.App.1982); Dorey v. Dorey, 412 So.2d 808 (Ala.Civ.App.1982).

In Peek v. Peek, 417 So.2d 212 (Ala.Civ.App.1982), this court in effect held that social security disability benefits and military disability benefits were sources of income upon which an award of periodic alimony could be made.

This court now has the opportunity to specifically hold that social security disability benefits and Veterans Administration disability benefits may in appropriate circumstances be sources of “income” upon which an award of periodic alimony may be based. We now so hold, see Peek v. Peek, 417 So.2d 212; Johnson v. Johnson, 415 So.2d 1102; Dorey v. Dorey, 412 So.2d 808; and Kabaci v. Kabaci, 373 So.2d 1144, and find that this case is such an appropriate circumstance.

As to the husband’s contention that the amount of the award of periodic alimony requires reversal, we again do not agree.

The award and the amount of periodic alimony are matters within the discretion of the trial court and will not be reversed except for plain and palpable abuse of that discretion. Peek v. Peek, 417 So.2d 212.

While the award of approximately one-third of the husband’s income under the facts of this case may appear to be generous, it is not such an award as to require reversal. See 8 Ala.Digest, Divorce, Key No. 235. For this court to reverse would be to substitute our judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

We also find no abuse of discretion in the award of the attorney’s fee. See 8 Ala.Digest, Divorce, Key No. 227(1).

Both parties have favored this court with excellent briefs for which we are grateful.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Wayne T. PRENTICE v. Billie Anita PRENTICE.
    Civ. 3754.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.

      John E. Byrd of Byrd & Carter, Dothan, for appellant.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellee.
   HOLMES, Judge.

This is a divorce modification case.

The husband sought by modification of a prior decree of divorce to terminate an award of periodic alimony to the wife. After an ore terns hearing, the trial court refused to modify. The husband, through able counsel, appeals and we affirm.

The dispositive issue on appeal is whether the trial court so abused its discretion in failing to modify the prior decree of divorce that we must reverse. We find no such abuse of discretion as to require reversal and affirm.

We do not deem it necessary nor prudent to set out in detail the facts. Viewing the record with the attendant presumptions, the following is pertinently revealed:

The parties were divorced in 1974. The husband agreed to pay the wife $300 per month as periodic alimony. This agreement was incorporated into the divorce decree. At the time of the divorce, the husband earned approximately $20,000 per year as a jeweler. At the time of the divorce, the husband had a net worth of approximately $120,000.

The husband has remarried. His present wife earns approximately $15,000 a year, and she has approximately $120,000 in savings. The husband has been unemployed since 1976 and apparently has virtually no assets at this time. The following testimony was elicited by the trial judge from the husband at the modification hearing and, when viewed with the attendant presumptions accorded the trial court’s action, is pertinent:

“Q. (BY THE COURT:) Okay, You said you went through the State Employment Agency for a year?
“A. Yes, sir.
“Q. What year was that?
“A. I think it was 1977.
“Q. Okay, Have you been there within the past year?
“A. No.
“Q. Is the reason that you haven’t is because your present wife’s income either through employment or interest has been sufficient for you and she to live upon?
“A. That’s correct.
“Q. So, you have voluntarily chosen not to work?
“A. Well, it makes it a lot easier for my wife for me to be at home, if I could, to take care of the house, the yard work and raise a garden, vegetables and what not, it makes her working a whole lot easier than it would be if both of us were working.
“Q. In 1976, when you quit, it was your choice to quit, is that correct? I mean, you were not fired or—
“A. No, I wasn’t fired.”

As indicated, the trial court refused to terminate the award of periodic alimony, and the husband appeals.

At the outset, we note that the modification of alimony is within the discretion of the trial court. It will be reversed only where this court finds such an abuse of discretion as to render the judgment plainly and palpably wrong. Whitt v. Whitt, 276 Ala. 685, 166 So.2d 418 (1964); Wier v. Wier, 410 So.2d 78 (Ala.Civ.App.1982).

There are many factors to consider in awarding periodic alimony or, as in the instant case, in refusing to terminate an award. We find particularly applicable to the present case the rule of law that ability to earn, as opposed to actual earning capacity, is a proper factor to consider in determining the award of alimony or whether to terminate the award on modification. Robinson v. Robinson, 381 So.2d 637 (Ala.Civ.App.), cert. denied, 381 So.2d 641 (Ala.1980).

In the instant case, at the time of the divorce in 1974, the husband had the ability to earn approximately $20,000 per year. He was a jeweler and had graduated from a watch repair school. Additionally, he had a separate estate of over $100,000. His life style at present is as indicated above.

In view of what we have said above, we cannot find the trial court has erred to reversal; to do so would be to substitute our judgment for that of the trial court. This Alabama law does not permit. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

The wife has requested an attorney’s fee for representation on appeal. A fee of $500 is awarded.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Randolph E. NEAL, Jr. v. WILSON LUMBER CO., INC.
    Civ. 3825.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.

      Randolph E. Neal, Jr., pro se.
    Curran C. Humphrey of Humphrey & Smith, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case was previously before this court and our supreme court. Neal v. Wilson Lumber Co., 410 So.2d 404 (Ala.Civ.App.1981), aff’d, 410 So.2d 407 (Ala.1982). The matter was remanded to the circuit court for a hearing upon Mr. Neal’s rule 60(b)(4), Alabama Rules of Civil Procedure, motion which had been appealed from the small claims court to the circuit court. The facts as stated in those appellate decisions will not be repeated here.

Mr. Neal admits that, after our remand of his case to the circuit court, he did not appear at the circuit court hearing upon his 60(b) motion. As a consequence, the circuit court apparently dismissed his 1980 appeal to the circuit court on February 25, 1983 and remanded the matter to the small claims court. That action of the circuit court had the legal effect of denying Mr. Neal’s 60(b) motion and left standing the original 1980 monetary judgment of the small claims court against Mr. Neal. No appeal was taken to this court from the February 25, 1983 circuit court judgment, but on March 3, 1983 in the small claims court Mr. Neal filed a most confusing notice of appeal to the circuit court, the pertinent parts thereof being as follows:

“Date of Judgment/Order 4/22/80 Date of Post Judgment Order 2/25/83 “Notice is Hereby Given that Randolph E. Neal, Jr. appeals to the Circuit Court of Madison County, Alabama from the order of 2/25/80 in the Madison County Circuit Court, dismissing the appeal to the circuit court that was taken on 6/27/80 seeking to have the denial of defendant's motion to set aside default judgment found void and to be set aside. This appeal is for a trial de novo by a struck jury, which jury trial is hereby demanded by defendant now. This case has been remanded to the jurisdiction of the Small Claims Court as of 2/25/83.”

Apparently the stated date of “2/25/80” should have read “2/25/83.”

The circuit court dismissed Mr. Neal’s March 3, 1983 appeal on April 6, 1983 and he appealed to this court on May 16, 1983.

No appealable judgment has been entered in this case by the small claims court since 1980. No timely appeal to the circuit court could have been taken on March 3, 1983 from any small claims judgment.

In substance, the March 3, 1983 appeal was to the circuit court from the circuit court’s own judgment of February 25, 1983. This is impermissible, for an appeal from the small claims court to the circuit court must be from a final judgment of the small claims court. Rule M, Small Claims Rules; § 12-12-70(a), Code 1975.

By May 16, 1983 the time had expired within which Mr. Neal could directly appeal to this court from the February 25, 1983 circuit court judgment, and the procedures which Mr. Neal elected to use did not extend the time for perfecting such an appeal.

The circuit court properly dismissed Mr. Neal’s appeal of March 3, 1983 and we affirm the circuit court’s judgment of April 6, 1983.

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

AFFIRMED.

All the Judges concur.


text:
    Benjamin C. SMITH, Sr. v. Judith M. SMITH.
    Civ. 3843.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.
    David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellant.
    Edward L. Hopper, Huntsville, for appel-lee.
   WRIGHT, Presiding Judge.

Judgment was entered granting a divorce upon the petition of the wife. In addition to a division of property, the judgment granted to the wife alimony in the amount of $333 per month for thirty-three months. The husband appeals, presenting as the only issue that the court abused its discretion in granting the wife alimony.

Succinctly stated, the evidence heard orally disclosed that the parties originally married in 1975, divorced in 1979, remarried in 1980 and separated last in 1983. The parties were approximately fifty years of age at the time of their first marriage. They had minor children by prior marriages. They worked in the same department for the United States Government at Redstone Arsenal. The wife earned substantially more salary than the husband. The wife was fifty-seven years of age at the time of divorce, in poor health and facing disability retirement. There was evidence of serious misconduct of the husband, before and after separation, toward the wife and her minor son. He was held in contempt by the court for violating its restraining order. The court denied a motion for new trial when presented with the issue presented now on appeal.

After consideration of the judgment and the evidence, this court finds no palpable abuse of discretion of the trial court. Viewed with the presumption of correctness to which it is legally due and which was strengthened by the denial of the motion for new trial, the judgment of the trial court is due to be and is affirmed. Kennedy v. Kennedy, 410 So.2d 100 (Ala.Civ.App.1982); Hansen v. Hansen, 401 So.2d 105 (Ala.Civ.App.1981).

The request of the wife for an attorney fee on appeal is granted in the amount of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Elmer PATRICK v. Elvin MILLER, individually and d/b/a Miller’s Nursery, et al.
    Civ. 3874.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.
    Theodore L. Hall, Mobile, for appellant.
    Ronald P. Slepian and Joseph P. Jones, Jr. of McDermott, Slepian, Windom & Reed, Mobile, for appellees.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee appeals from a judgment granting employer’s motion for summary judgment, A.R.Civ.P. 56.

The issue on appeal is whether there was a genuine issue of a material fact thereby prohibiting summary judgment. We find that there was a genuine issue of material fact and the learned trial judge erred in granting summary judgment.

At the outset, we note the employer, through able counsel, contends that our standard of review should be limited to a determination of whether there is any evidence to support the trial court’s finding; that is the common standard of review for workmen’s compensation cases reviewed on writ of certiorari. Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982). However, the proper, in this instance, standard of review is that under which summary judgments are decided, to wit, is there a genuine issue of material fact? See Wiregrass Comprehensive Mental Health Clinic, Inc. v. Price, 366 So.2d 725 (Ala.Civ.App.1978), cert. denied, 366 So.2d 728 (Ala.1979); Sager v. Royce Kershaw Co., Inc., 359 So.2d 398 (Ala.Civ.App.1978). If there is a scintilla of evidence supporting the nonmoving party, summary judgment is inappropriate. Alside Supply Co. v. Meeks, 380 So.2d 910 (Ala.Civ.App.1980).

Viewed with the above in mind, the record reveals the following:

In August 1982, Patrick (employee) was employed by Miller’s Nursery (employer). The employee was injured during the course of his job changing a flat tire. The employee then filed a workmen’s compensation complaint against the employer.

The employer moved for summary judgment on the grounds that the employee was a “farm laborer” at the time of his injury and as such is exempted from workmen’s compensation coverage by Ala.Code § 25-5-50 (1975). The employer submitted an affidavit stating that the employee’s job functions consisted of planting, growing, harvesting, etc., of the nursery stock, as well as driving various vehicles associated with the business. The employee submitted an affidavit in opposition to the employer’s motion that, in effect, denied that he was employed as a “farm laborer.” The employee stated that his job functions were driving trucks and front-end loaders and some mechanic work. The employee specifically stated that he had no part in the planting, growing, maintaining, or harvesting of the nursery stock.

After considering the pleadings and affidavits, the trial court granted the employer’s motion for summary judgment and dismissed the case. The employee now appeals.

As mentioned earlier, our standard of review is whether, after considering the pleadings and affidavits before the court, there remains any genuine issue of material fact. If so, summary judgment is improper. Wiregrass Comprehensive Mental Health Clinic, Inc. v. Price, 366 So.2d 725 (Ala.Civ.App.1978), cert. denied, 366 So.2d 728 (Ala.1979).

Although this appears to be a question of first impression in Alabama, it is generally recognized that the exemption of farm labor from workmen’s compensation coverage is construed according to the character of the work regularly performed by the employee, not according to the nature of the employer’s business. See 1C A. Larson, The Law of Workmen’s Compensation § 53.00 (1982). In other words, it is the nature of the work the employee does that determines whether he is a “farm laborer” for purposes of Ala.Code § 25-5-50 (1975). Therefore, generally speaking, the employer’s business can be agricultural in nature, but if the employee’s work is nonag-ricultural or significantly disassociated from the normal routine of running a farm, the farm laborer exemption will not apply. On the other hand, if the specific employee’s work is nonagricultural, but is such an indispensable part of the normal routine of running a farm that the job is not merely incidental to the farming operation, then the farm laborer exemption will apply. Again, see 1C A. Larson, The Law of Workmen’s Compensation § 53.00 (1982) for a more detailed discussion.

In the present case, the evidence is sufficient to create a genuine issue of material fact. The employer maintains that the employee engages in the normal day-to-day operation of the nursery, helping plant, grow, tend, and harvest the nursery stock. The employee contends that he works as a truck driver and mechanic and that he has no part and nothing to do with the farming aspect of the nursery. Clearly, in view of the above, this presents a genuine issue of material fact. Therefore, summary judgment was improper in this instance.

We would be remiss in not commenting that we should not be understood as indicating whether or not the employee falls within the provisions of § 25-5-50. We only find that there is sufficient “evidence” when viewed in light of the presumptions surrounding summary judgments to present a genuine issue of material fact.

Furthermore, we should not be understood as necessarily deciding that a nursery is a farming operation within the scope of workmen’s compensation law. We refer interested parties to the annotations in 140 A.L.R. 399.

This case is reversed and remanded.

REVERSED AND REMANDED.

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


text:
    William H. BAKER and Ida J. Baker; George L. Burns, Jr., and Hilda Burns; John H. Heaton, Jr., and Evelyn Heaton v. STATE BOARD OF HEALTH OF ALABAMA, et al.
    Civ. 3986.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.
    James E. Hill, Jr., Leeds, for appellants.
    John R. Wible, Asst. Atty. Gen., for ap-pellees State Bd. of Health of Alabama, St. Clair County Bd. of Health, Mary Ann Pass, Health Officer of State Bd. of Health, Terry Young, Environmentalist for the St. Clair County Bd. of Health.
    William J. Trussell of Church, Trussell & Robinson, Pell City, for appellees Ingram, Jemison, Frame, Thompson, West, Sparks, and Campbell.
   HOLMES, Judge.

The plaintiffs-Baker, et al., sued the defendants-State Board of Health and St. Clair County Health Department, et al. The plaintiffs sought by injunction, mandamus and equitable means to require the defendants to enforce certain regulations pertaining to mobile home parks. After an ore tenus hearing, the trial court denied the requested relief and plaintiffs appeal. We affirm.

The dispositive issue is whether the trial court’s action is supported by the facts and applicable “law.” As indicated, we find no error in the trial court’s action and affirm.

Specifically, the plaintiffs, through able counsel, contend that the mobile home park is subject to the regulations governing subdivision development adopted by the Alabama State Board of Health requiring lots in a mobile home park to be on no less than 15,000 square feet of usable land and that the owners of the mobile home park in question are in violation of that requirement. The plaintiffs all reside in close proximity to the mobile home park.

The defendants, to the contrary, state that the above regulation is not applicable because of § 2-264 of the regulations which exempts subdivisions approved prior to the effective date of the regulation mandating the 15,000 square foot lots.

There was evidence presented to the trial court which reveals the following:

Development of the subject mobile home park dates back to at least 1974. In 1974, a Mrs. Campbell bought the real estate upon which the mobile home park is located.

In 1974, applicable state health department regulations permitted mobile homes utilizing septic tanks to be placed on 3,200 square foot lots. Mrs. Campbell secured authorization for septic tanks based upon the 3,200 square foot requirement.

Thereafter, she spent on the mobile home park approximately $32,000 purchasing equipment, clearing the property, and building roads.

Some time after 1974, Mrs. Campbell’s husband died. Thereafter, to complete the project, she formed a partnership with her brother. In 1977, this partnership, because of disagreement among the parties, was dissolved by judicial intervention.

In 1978, the mobile home park regulations were changed. The previous lot size was increased to 15,000 square feet, but the earlier 3,200 square foot requirement was, as correctly contended by defendants, “grandfathered in.”

In 1981, Mrs. Campbell was forced to sell the property. The property was purchased by a Mr. Ingram. Mr. Ingram testified he purchased the property “as a trailer park.”

In 1981 to 1982, Mr. Ingram, operating under Mrs. Campbell’s 1974 permit, invested approximately $4,000 in the project. In 1982, Mr. Ingram entered negotiations to sell the property. The instant lawsuit was then filed.

As seen from the above, the trial court had before it evidence which showed that Mrs. Campbell had a permit (to develop on 3,200 square foot lots) which was issued prior to the effective date of the 15,000 square foot regulation; that the permit was in effect “used” continuously; and that regulation 2-264 exempts subdivisions with prior approval from the 15,000 square foot requirement.

As to the contention that the mobile home project had been abandoned, we note the following: “Discontinuance or abandonment involves more than mere cessation. It results from the concurrence of two factors: 1) an intent to abandon and 2) some overt act or failure to act which carries the implication that the party neither claims nor retains any interest in the subject matter of the abandonment.... ” Quinnelly v. City of Prichard, 292 Ala. 178, 183, 291 So.2d 295, 299 (1974). See also Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 (1960) (must be clear and unmistakable affirmative act).

In the instant case there are no affirmative acts which would indicate a desire to abandon or discontinue the mobile home project. The evidence merely shows that there is a time span during which little or no development occurred. The trial court could have found that this inactivity was caused by external factors and, in any event, did not evidence abandonment. Be that as it may, whether or not abandonment occurred is a decision for the trier of fact. Tennessee & C. Ry. v. Taylor, 102 Ala. 224, 14 So. 379 (1894). In the instant case the trier of fact determined that there had not been an abandonment. The evidence supports a finding that no abandonment occurred.

In addition to the above, we find pertinent the defendants’ contention that the 15,000 square foot requirement should not be enforced because of general equitable considerations. The mobile home park was developed under a permit that allowed 3,200 square foot lots. The owners and their successors relied on the permit and expended time and money developing and improving the lots according to the regulations under which they acquired the permit. Equity adapts relief to the case and in so doing form gives way to substance. Segall v. Loeb, 218 Ala. 433, 118 So. 633 (1928).

This case is due to be and is affirmed.

AFFIRMED.

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

      . We make no comment of the propriety of the manner in which the plaintiffs sought relief or whether they were proper parties. The parties joined issue, the trial court decided the issue, and the decision on that issue is here on appeal. We, as did the trial court, simply decide the appeal in the manner presented.


text:
    PATRICK LUMBER COMPANY, INC. v. CENTRAL BANK OF ALABAMA, N.A.
    Civ. 3784-X.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.

      John F. Proctor, Scottsboro, for appellant.
    Morgan Weeks of Weeks & Weeks, Scottsboro, for appellee.
   ON REHEARING

HOLMES, Judge.

This court’s original opinion dated September 21, 1983, is withdrawn and the following is substituted therefore:

This is a case concerning a materialman’s lien.

Central Bank brought suit against the materialman, Patrick Lumber Company, Inc. (Patrick), to establish the priority of its mortgage over Patrick’s materialman’s lien. Patrick filed a counterclaim, alleging that its lien had priority and seeking judicial foreclosure according to the lien statutes.

From the pleadings and stipulations of the parties, the learned trial judge determined that Patrick’s lien was superior to the mortgage claimed by Central Bank. The trial court determined the amount of Patrick’s lien to be $5,404.88. Patrick appeals, contending that the trial court erred in refusing to award an attorney’s fee and 1½% interest per month on the unpaid balance as provided for in Patrick’s contract with the home owners, the Halls, or alternatively, interest at the legal rate. Central Bank appeals from the trial court’s determination of priorities. We affirm in part and reverse in part.

The record reveals the following:

Patrick Lumber Company entered into a contract with the Halls to furnish material for the construction of a house. The first materials were furnished on February 8, 1977, and Patrick continued to furnish materials until November 23, 1981.

On May 17, 1981, the Halls executed a mortgage to Central Bank. On February 12, 1982, Patrick filed a lien against the Halls’ land, buildings and improvements in the amount of $5,404.88. On May 25, 1982, Central Bank filed suit against the Halls to foreclose on the mortgage and against Patrick to establish the priority of the mortgage over the materialman’s lien.

The trial court held in pertinent part that Patrick’s lien was superior to Central Bank’s mortgage and awarded Patrick a judgment in the amount of $5,404.88.

The issues on appeal are whether the trial court erred in failing to award interest and attorney’s fees according to the contract between Patrick and the Halls, or alternatively, interest at the legal rate and whether the trial court erred in determining priorities.

Patrick alleges that its agreement with the Halls provided for a finance charge of 1-½% of the unpaid balance and an attorney’s fee of 15% of the unpaid debt in the event collection became necessary. Patrick now contends that it was error for the trial court to fail to award the finance charge and attorney’s fees as provided for in the terms of the agreement. We disagree.

The facts of this case were stipulated. There was no specific mention of interest or attorney’s fees other than in the written agreement between Patrick and the Halls referred to in the stipulations in the following manner: “2. That on Feb. 8, 1977, the said Charlotte Hall and David Hall entered into an agreement with Patrick Lumber Co. for the purchase of materials to be used in the construction for a house located upon said property. See Exhibit A.” Exhibit A is the contract. We do not believe that under the facts of this particular case the trial court can be placed in error for failure to award the interest and attorney’s fees when the only proof concerning such items is in the manner described hereinabove. To find error under these facts would be to, in effect, say that as a matter of law the trial court erred in failing to award the requested interest and attorney’s fees. This we are not prepared to do. Error committed below must be affirmatively demonstrated by the record before this court. Crowder v. Zoning Board of Adjustment, 406 So.2d 917 (Ala.Civ.App.1981). In the present case there was no evidence offered on this issue except as described above. Moreover, it appears to this court that the contract was stipulated to as evidence of the agreement between Patrick and the Halls in regard to the necessary elements of a materialman’s lien and not necessarily as proof of attorney’s fees and service charges. In any event, we do not believe that under these facts error has been affirmatively demonstrated. This is particularly true in view of the following:

Section 35-11-224, Ala.Code (1975), provides that once it has been determined that the plaintiff has a lien as claimed, “judgment shall be entered for the amount secured thereby, interest and costs.... ” Also, Crane v. Wilson, 288 Ala. 439, 261 So.2d 877 (1972), stands as authority for the awarding of interest on a materialman’s lien. Accordingly, we reverse the trial court’s action and award interest at the legal rate on Patrick’s judgment.

Lastly, Central Bank, through able counsel, contends that its mortgage should have priority over Patrick’s lien on any materials delivered after the mortgage was recorded. This contention is without merit.

Section 35-11-211, Ala.Code (1975), declares that materialman liens “shall have priority over all other liens, mortgages or encumbrances created subsequent to the commencement of work.... ” Central Bank relies upon a line of cases that hold that work commences according to the statute when the materials are delivered. See Gamble’s, Inc. v. Kansas City Title Ins. Co., 283 Ala. 409, 217 So.2d 923 (1969). Central Bank argues that in view of those cases, the materialman’s lien in the instant case did not accrue until such time as the materials were actually delivered to the construction site. Central Bank’s reliance is misplaced.

Here, the materials furnished could well have been determined to be part and parcel of one scheme of improvement and as such a lien for the full amount claimed in the verified statement is properly allowed. Wofford Bond & Mortgage Co. v. Adams, 222 Ala. 527, 133 So. 254 (1931).

This case is affirmed in part and reversed in part and remanded to the trial court in order that interest on Patrick’s judgment can be determined.

APPLICATION FOR REHEARING GRANTED.

OPINION SUBSTITUTED.

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

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


author: PER CURIAM.

text:
    BLUE CROSS-BLUE SHIELD OF ALABAMA v. Gerald B. BROADDRICK.
    Civ. 3690.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.

      William G. Somerville, Jr. and Lawrence B. Clark, of Lange, Simpson, Robinson & Somerville, Birmingham, and Robert M. Hill, Jr., Florence, for appellant.
    Eddie Beason of Fine & Associates, Rus-sellville, for appellee.
   PER CURIAM.

Broaddrick, an employee of Alabama Limestone, Inc., sued Blue Cross-Blue Shield of Alabama to recover benefits under a group health insurance contract maintained through his employer. Both parties filed motions for summary judgment on the basis of the pleadings, affidavits, and certain stipulated facts. From a summary judgment entered in favor of the plaintiff, defendant appeals.

Broaddrick and his family were covered by a Blue Cross group hospitalization plan administered through Alabama Limestone. The monthly premium, payable in advance, was $63.39. Of this amount $26.74 was regularly deducted from Broaddrick’s wages; the remaining $36.65 was paid by Alabama Limestone.

On January 1,1979, Blue Cross received a $63.39 premium from Alabama Limestone to cover Broaddrick and his family through January 31,1979. However, on January 17, 1979, Alabama Limestone terminated Bro-addrick. It issued Broaddrick a final paycheck on January 20, 1979, less $26.74 apparently deducted to cover a February health insurance premium. The facts are contested as to when Alabama Limestone discovered the $26.74 error and attempted to refund the amount to plaintiff. However, it is clear that this amount was never remitted to Blue Cross on Broaddrick’s behalf and that Alabama Limestone indicated to Blue Cross on the February health insurance billing that Broaddrick was no longer in its employ.

On February 11,1979, plaintiffs wife was hospitalized, incurring medical and hospitalization expenses which were not paid by Blue Cross. Plaintiff filed suit June 6, 1979, for $845.50 in benefits under the group hospitalization policy, contending that the January 20, 1979, paycheck deduction established coverage through the month of February. In awarding summary judgment in favor of the plaintiff employee, the learned trial judge apparently relied upon the case of Blue Cross-Blue Shield v. Thornton, 56 Ala.App. 678, 325 So.2d 187 (1975), to find that in withholding plaintiffs portion of the February premium, Alabama Limestone acted as the agent of Blue Cross and thereby bound Blue Cross to provide benefits for the February hospitalization.

The relevant provisions of the health insurance policy are as follows:

“If the Subscriber ceases, with or without cause, to be employed with the group through which he is paying fees at the time of such cessation of employment, this Contract and all rights hereunder shall terminate automatically and without notice as of the date to which fees are prepaid on the date of such cessation of employment.
“The Subscriber and not the Corporation assumes the responsibility for the failure of any Remitting Agent to pay fees to the Corporation when due.
“ ‘Remitting Agent’ means any individual, partnership, organization or corporation which, as agent for the Subscriber, has agreed with the Corporation to collect and remit the fees payable hereunder.”

The first provision quoted is unambiguous — an employee’s entitlement to post-termination coverage is measured as of the date of his cessation of employment. On January 17, 1979, plaintiff’s health insurance coverage was prepaid through January 31, 1979. Accordingly, under the terms of the policy, coverage was provided through the end of that month.

The controversy concerns the effect of the January 20, 1979, payroll deduction. Plaintiff contends that this deduction operates to extend the coverage effective on his termination date, which was set to terminate automatically as of January 31, 1979. For either of the two following reasons, this contention must be rejected.

First of all, this court must accept Blue Cross’s argument that Alabama Limestone was not its agent for the purpose of accepting premium payments. Under Blue Cross-Blue Shield v. Thornton, 56 Ala.App. 678, 325 So.2d 187 (1975), agency questions would normally turn on the facts of the particular case. However, in Blue Cross-Blue Shield v. Fowler, 43 Ala.App. 572, 195 So.2d 910 (1966), cert. denied, 280 Ala. 708, 195 So.2d 919 (1967), clauses which assign to the employee the risk of the employer’s failure to remit deducted premiums were upheld. The Fowler case, especially the opinion on rehearing, makes it clear that despite normal agency rules, an insurance company can contract so as to place the risk of non-remittance of deducted premiums on the covered employee. Id. at 581, 195 So.2d at 918. The clauses relied upon in the present case are very similar to the ones in Fowler. They go so far beyond merely reciting that Alabama Limestone is the agent of the covered employee for the purpose of collecting premiums; they specifically put the risk of non-remittance on the covered employee. Blue Cross having specifically contracted that Broaddrick would assume the responsibility for Alabama Limestone’s failure to remit deducted amounts to Blue Cross, the trial court erred in deciding that Alabama Limestone acted as Blue Cross’s agent. The Thornton-mandated fact-finding process should have been preserved for a case in which the insurance contract was otherwise silent as to the role of the employer. Fowler, id., at 581, 195 So.2d at 918.

Second, even if it were conceded that Alabama Limestone acted as the agent of Blue Cross in deducting plaintiff’s portion of the premium from the January 20, 1979 paycheck, plaintiff failed to establish either that Alabama Limestone had authority to modify the policy’s express termination provision or that Alabama Limestone’s actions rose to the level of an intentional and knowing modification or waiver of that termination. As discussed above, the payroll — with the health insurance deduction— was sent to a computer center for processing prior to plaintiff’s termination date. Though it is unclear when Alabama Limestone discovered the error and attempted to return the money to plaintiff, it is clear that prior to plaintiff’s wife’s hospitalization Alabama Limestone affirmatively deleted plaintiff’s name from the February listing of covered employees and returned the list to Blue Cross without making a February payment on plaintiff’s behalf. These circumstances are insufficient to indicate a modification or waiver of the express termination provision. See Wiregrass Construction Co. v. Tallapoosa River Electric Cooperative, 365 So.2d 95 (Ala.Civ.App.1978).

In view of the above, the trial court erred in granting summary judgment in favor of Broaddrick. The case is reversed and remanded for entry of a judgment not inconsistent with the above.

REVERSED AND REMANDED.

All the Judges concur.

      . The affidavit of Bonnie Straub, Secretary of Alabama Limestone, establishes that the January 20, 1979, payroll was sent to a computer center for processing — with the health benefit deducted — prior to plaintiffs termination date.


text:
    S.A. PRUITT, d/b/a Pruitt’s Bar-B-Q v. Benjamin KIRKLAND.
    Civ. 3717.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Randy B. Brooks, Anniston, for appellant.
    James M. Campbell, Anniston, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case where the only appellate issue is whether the employee willfully violated a rule or policy of his employer that employees not use an elevator. The testimony of the parties and of two additional witnesses was heard by the trial court as to that issue. That evidence conflicted. In the judgment as to liability, the trial court made a comprehensive finding of fact and concluded that the employee did not willfully violate his employer’s rule and that the employee was entitled to recover workmen’s compensation.

Some of the evidence which supports the findings of the trial court follows. The employee, while working for his employer, was injured when he fell from the elevator located in his employer’s restaurant. The building was then being cleaned prior to the business’s opening. The elevator door exhibited a sign which read “Dangerous Do Not Ride.” However, the elevator was used by the employees in their work. One witness testified that the purpose of the sign was to prohibit salesmen from using it since they were not acquainted with its method of operation. There was evidence that the only time that the employer told the employees not to use the elevator was when the elevator was being repaired. The employee’s brother testified that when his brother was injured his brother had been sent to the attic of the restaurant by the employer’s wife to obtain some detergent to be used in cleaning the kitchen of the restaurant. Detergent, glasses, dishes, and items used in the restaurant were stored in the attic. According to the employee, the only access to the attic on that occasion was by means of the elevator. A ladder, which was an alternate method of going from the second floor to the attic, had been moved. The employer controverted much of that evidence.

A limited scope of review is imposed upon this court in workmen’s compensation cases. We are required to examine the trial evidence, without weighing it, to ascertain if any legal evidence upholds the findings of the trial court. If so, we are required to affirm the judgment of the trial court. Martin Industries, Inc. v. Dement, 435 So.2d 85 (Ala.Civ.App.1983); Goodyear Tire & Rubber Co. v. Greene, 426 So.2d 851 (Ala.Civ.App.1983). While the evidence in this case clashed and was in much disagreement, the testimony which we have summarized fully supported the trial court’s findings. Accordingly, we affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Ex parte PERSONNEL BOARD OF JEFFERSON COUNTY, ALABAMA, and Melvin Bailey, the Sheriff of Jefferson County, Alabama. (Re Cleveland B. JONES v. PERSONNEL BOARD OF JEFFERSON COUNTY, ALABAMA, and Melvin Bailey, the Sheriff of Jefferson County, Alabama).
    Civ. 3896.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.

      David P. Whiteside, Jr. of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for petitioner the Personnel Board of Jefferson County, Alabama.
    J. Fred Wood, Jr. and Ezra B. Perry, Jr. of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for petitioner Melvin Bailey, The Sheriff of Jefferson County, Alabama.
    Lewis Fred Pickard, Birmingham, for ap-pellee.
   HOLMES, Judge.

This is an employee demotion case. Jefferson County Deputy Sheriff Cleveland B. Jones was demoted from sergeant by the Sheriff of Jefferson County. This action was later reversed, the Personnel Board appeals, and we affirm.

Jones was demoted by his employer. Jones contested the employer’s action and appealed to the Jefferson County Personnel Board. The Board appointed a hearing officer. A hearing was held and the hearing officer sustained the employer’s demotion of Jones. The Personnel Board agreed with the action and sustained the demotion.

Pursuant to section 22 of the Personnel Board’s Enabling Act, Jones filed notice of appeal to the Circuit Court of Jefferson County. A three-judge panel as provided by the Enabling Act was appointed by the presiding judge of the circuit court to review questions of law and to determine whether or not the Board’s decision was supported by the substantial and legal evidence. The three-judge panel found the Board’s action was not so supported and reversed the Personnel Board’s action.

The Personnel Board properly appeals by writ of certiorari to this court. See Ex parte Smith, 394 So.2d 45 (Ala.Civ.App.1981).

After a careful review of the record before this court, we affirm the three-judge panel action.

The record before this court reveals the following:

At three o’clock on the afternoon of April 22, 1982, Jones and a fellow officer and personal friend, B.R. Wilson, went to the county firing range in Hoover, Alabama. They practiced pistol shooting until about seven that evening. After going “off duty” they drove their county vehicles to Wilson’s place of business, a bait shop in Bessemer, where they could talk. They arrived at approximately 8:15 p.m. and talked until one or one-thirty in the morning. While there Jones drank three, possibly four, beers.

After leaving the bait shop Jones wrecked his county-owned vehicle, injuring his legs and causing about $1,300 worth of damage to the car. He attempted to call for help on his car radio and on a portable radio, but neither unit was functioning. He then left the car and began to knock on the doors of nearby houses until he found someone to call the local police for him. The police arrived at approximately 2:30 a.m. and made out an accident report.

When the police arrived Jones informed them that he needed to report the accident to his superior at the Sheriff’s Department. Jones was told that a Sergeant Eddings (who was not Jones’s superior) was in the vicinity. The police put in a call for Ed-dings, and when he arrived he reminded Jones to report the accident to his superior officer, Lieutenant Jacobs. Jones made no further attempt at that time to contact Jacobs.

The wrecker that towed the wrecked vehicle gave Jones a ride home. Jones arrived home between 5:00 and 5:15 a.m., whereupon he cleaned and bandaged his hurt legs. Jones then decided that he would postpone reporting the accident for a couple of hours until he knew the lieutenant would be awake. He set his alarm for 7:00 a.m. and went to bed. Sometime between 7:00 and 7:30 a.m. he awoke and called Lieutenant Jacobs.

As indicated above, after a disciplinary hearing on May 10, 1982, Jones’s employer demoted him to the position of deputy sheriff based on the following charges: Jones operated a county vehicle while under the influence of alcohol, Jones wrecked the county vehicle, and Jones failed to promptly notify his superior of the wreck as required by department policy. Jones appealed the sheriff’s decision to the Jefferson County Personnel Board. The Board appointed a hearing officer who conducted an evidentia-ry hearing and rendered written findings, upholding the demotion solely on the intoxication charge. No findings were made regarding the other charges. After reviewing the hearing officer’s findings, the Personnel Board sustained the demotion. Jones then appealed to Jefferson County Circuit Court as allowed by statute.

The three-judge circuit court panel, as stated above, overturned the Personnel Board decision, sending it back for a further hearing, citing insufficient evidence of legal intoxication as the basis of its decision. Further, the circuit court specifically refused to sustain the demotion on the alternate ground, Jones’s failure to promptly notify his superior, because the Personnel Board hearing officer had made no findings on the evidence offered on that charge.

Before this court the Personnel Board makes no contention regarding the intoxication issue, apparently conceding that the evidence presented on that charge was legally insufficient. Specifically, the Personnel Board, through able counsel who has favored this court with an excellent brief, states in brief as follows:

“The lower court’s remand on the issue of intoxication is not currently being contested by the petitioners. What the petitioners do raise is their claim that the Sheriff presented sufficient evidence to show that Jones did not notify his superi- or promptly of the accident, and that this evidence alone was sufficient to sustain the disciplinary action.”

From the above we take the dispositive issue before this court to be whether the circuit court panel erred in refusing to affirm disciplinary action taken by the Personnel Board on the basis of a charge presented to but not relied upon by the Board.

In view of the specific finding by the hearing officer and the action of the Personnel Board, and after having considered general principles of administrative law, this court must answer this question in the negative.

In general, the review by a court of any Personnel Board action is extremely limited. Templin v. City Commission, 279 Ala. 473, 187 So.2d 230 (1966). The determination of the weight and credibility of the evidence presented is solely within the province of the Board; the review here is limited to the proper application of the relevant law and whether the Board’s ruling is supported by any legal evidence. Id. This narrow scope of appellate review is in keeping with the general principles underlying certain important doctrines in administrative law which come into play when judicial review of administrative actions is involved. See generally Fraternal Order of Police, Strawberry Lodge # 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975) (exhaustion and primary jurisdiction doctrines).

Agencies tend to develop a recognized competence or expertise in the specific fields of operation entrusted to them by the legislature, and judicial deference to the administrative agency in the first instance tends to insure uniformity and consistency of decisions in these special areas. Id. Initial review of a matter by an agency can do more than merely assist a court in its consideration; it might alleviate entirely any need to invoke the court’s aid. Id. However, if judicial review is ultimately necessary, the special competence of the agency lends great weight to its reasoning and decision. See, e.g., Glen McClendon Trucking Co. v. Hall Motor Express, Inc., 285 Ala. 98, 229 So.2d 488 (1969). When the legislature delegates a discretionary function to an agency to be exercised in light of the agency’s special competency, a court frustrates legislative intent and usurps that discretionary role by stepping in when the agency’s choice is not clearly unreasonable or arbitrary. See State ex rel. Steele v. Board of Education, 252 Ala. 254, 40 So.2d 689 (1949).

After applying these general propositions to the case at bar this court is of the opinion that the effect of the legislature’s delegation of Jefferson County personnel decisions to the Jefferson County Personnel Board could be undermined if a reviewing court were allowed to uphold disciplinary actions on the basis of charges presented to but not passed upon the Board itself. The instant facts present a particularly compelling argument in support of judicial deference as first, the Personnel Board should be given the initial opportunity to construe the “promptly” provision of the Jefferson County Sheriff’s Department Policy and Procedure Manual, and second, a variety of disciplinary actions is available in this situation.

Our review of the record reveals that in its original action the Personnel Board ordered a demotion on the basis of the employer’s charge that Jones was driving and wrecked a county vehicle while under the influence of alcohol. That charge can no longer be relied upon to sustain the demotion because of the circuit court’s action and petitioner’s concession. For this court to sustain the demotion on the basis of the promptness charge would deprive the Personnel Board of its right to, in first instance, resolve disputed facts, interpret the applicable provisions, weight evidence, judge credibility, and formulate a discipline appropriate to the wrong done. We have no basis for saying that the same discipline would have been imposed by the Board on a promptness finding, if in fact it had been made.

In effect, were this court to decide this matter on the “promptness” theory, we would, in view of the “findings” as shown by the record, be deciding this case on a charge different from that upon which it was decided. This the law does not favor. See generally 2 Ala.Digest, Appeal & Error, Key No. 171(1).

In view of the above, the circuit court was correct in remanding this action to the Personnel Board of Jefferson County. Accordingly, the decision is due to be affirmed.

AFFIRMED.

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


text:
    Helen Fay Beaird PRICE v. John PRICE.
    Civ. 3905.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Howard B. Warren of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellant.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for appellee.
   BRADLEY, Judge.

The appeal is from a child custody decree.

The parties to this proceeding were divorced on January 7, 1983 by the Circuit Court of Marshall County, Alabama. The divorce decree incorporated an agreement of the parties. The agreement specifically requested that the custody of the parties’ minor child not be addressed by the trial court in its decree. The trial court did not provide for child custody in the decree.

On April 26, 1983 the mother filed a motion for relief from the final decree and a petition for modification of the final decree. The requested relief in both the motion and the petition was for custody and support of the child.

After an ore tenus hearing, the trial court awarded custody of the male child to the father and gave the mother specific visitation rights. The mother appeals.

The paramount consideration for a court in a child custody case is the best interests and welfare of the child. Lowery v. Lowery, 391 So.2d 120 (Ala.Civ.App.1980). And a trial court’s decision to award the custody of a child to one of its natural parents will not be overturned except when the trial court abuses its discretion in making such an award. Lowery v. Lowery, supra. Likewise, a trial court has broad discretion in the award of visitation rights to a noncustodial parent and the exercise of such discretion will not be reversed except for abuse of that discretion. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981).

The pertinent facts reveal that the parties to this proceeding were married for about twenty years. They had one child, a boy, now ten years old.

The evidence showed that the wife had been employed outside the home during most of the marriage. She had an affair with a man that lasted for several years. The wife also attempted suicide.

There is ample evidence that the father loves his son, is solicitous of his needs, both physical and emotional, and has been the parent who has most often satisfied those needs. The wife was away from the home more often than the husband, and this was one of the reasons for the breakup of the marriage.

The child loves both parents and has a good relationship with both of them. He is doing well in school and is happy living with his father and stepmother.

The trial court heard the testimony and saw the witnesses testify; we cannot say that its decree awarding custody to the father is an abuse of discretion. Neither is the visitation award made to the wife an abuse of the trial court’s discretion. To hold otherwise would be for this court to substitute its judgment for that of the trial court; this we are not permitted to do. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

The judgment of the trial court is affirmed.

AFFIRMED.

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


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    Randolph E. NEAL, Jr. v. FIRST ALABAMA BANK OF HUNTSVILLE, N.A., d/b/a Master Charge.
    Civ. 3914.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Randolph E. Neal, Jr., pro se.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The First Alabama Bank of Huntsville (the bank) filed its complaint against Mr. Neal in the district court for the breach of a written credit card agreement. Mr. Neal was served with a copy of the summons and complaint and his answer consisted of a general denial. After a trial in the district court, a judgment was entered for the bank and against Mr. Neal. He promptly appealed to the circuit court where the bank filed a motion for a summary judgment. Mr. Neal made a written “objection” to the bank’s summary judgment motion. The circuit court granted the bank’s motion and rendered a summary judgment for the bank and against Mr. Neal for $2,875.64. Mr. Neal timely appealed to this court.

When the issues raised by Mr. Neal are considered, condensed and consolidated, his argument is that, after he appealed the case from the district court to the circuit court, the bank did not file in the circuit court, or serve upon him, a new complaint and he contends that the circuit court’s judgment against him is void on that account. The argument here made by him comports with the matters which he raised by his “objection” to the bank’s motion for a summary judgment. Mr. Neal has a misconception of the meaning of the term “trial de novo" in the circuit court after an appeal from a final district court judgment. A trial de novo is concerned with another trial, a new trial, a re-trial of the case and means “trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered.” (Citation omitted.) (Emphasis supplied.) Rudolph v. State, 286 Ala. 189, 238 So.2d 542 (1970); Slaughter v. Martin, 9 Ala.App. 285, 63 So. 689 (1913). There is no requirement that the plaintiff file a new complaint in the circuit court following an appeal from a district court’s final judgment. The trial in the circuit court usually proceeds upon the issues which were made by the pleadings as filed in the district court. However, further or amended permissible pleadings may be filed in the circuit court by any party. The “objection” filed by Mr. Neal to the motion for a summary judgment was baseless. The bank’s supportive affidavit and other matters upon which the summary judgment was granted were not controverted in any meritorious manner by Mr. Neal. Accordingly, the summary judgment as rendered by the trial court is affirmed upon its merits.

Additionally, we are required to affirm this case because Mr. Neal’s brief does not conform with Rule 28(a) of the Alabama Rules of Appellate Procedure since it does not contain the citation of any authority in support of the argument made in the brief. Shory v. Peavy, 431 So.2d 1319 (Ala.Civ.App.1983).

Mr. Neal requests that he be awarded an attorney’s fee on this appeal. That request is denied.

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: PARKER, Retired Circuit Judge.

text:
    Susan Kristine JOHNSTON v. Gregory A. JOHNSTON.
    Civ. 3930.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.

      E.H. Hawkins of Dishuck & Hawkins, Tuscaloosa, for appellant.
    Robert F. Prince, Tuscaloosa, for appel-lee.
   PARKER, Retired Circuit Judge.

This is an appeal from denial of a writ of habeas corpus for custody of a child under Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, and the Uniform Child Custody Jurisdiction Act, § 30-3-20 to 46, Code of Alabama 1975.

The record reveals Gregory Ryan Johnston was born in Tuscaloosa County, Alabama, on July 24, 1980, and in 1981 he and his parents moved to the State of Texas where the parents were divorced by judgment dated January 12,1982. In that judgment Susan Johnston was given custody of Gregory Ryan Johnston with certain visitation rights given to Gregory A. Johnston, with periodic support payments required. In September 1982, Gregory A. Johnston returned to Tuscaloosa, Alabama, and by agreement Gregory Ryan Johnston accompanied him. On November 10, 1982, a change of custody motion was filed but was dismissed on December 6, 1982, for lack of jurisdiction. On March 2, 1983, Gregory A. Johnston again filed a change of custody motion, and on that date a temporary order of custody was granted to him by the court. A copy of this order and one of the motion were served on Susan Johnston on March 16, 1983, by registered mail. A plea to the jurisdiction was filed on March 30, 1983, and hearing was held on April 18,1983. On June 9,1983, the trial court held that it had jurisdiction over the case and set the trial, at the convenience of appellant, on August 15,1983. On August 2,1983, appellant filed for a writ of habeas corpus, which was heard on August 11, 1983, and denied. From that ruling she appeals.

Appellant claims the trial court erred in failing to issue the writ of habeas corpus as the ex parte custody order rendered on March 2, 1983, was without notice to her as required by § 30-3-24 of the Code. Appellant cites Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ.App.1981), which states that procedural due process should be scrupulously observed by perfecting service of pleadings and of reasonable notice of setting of the matter for trial.

Appellee moves to dismiss the appeal as the denial of the writ of habeas corpus was not an appealable order.

The order granting temporary custody of the child to Gregory A. Johnston was an interlocutory order pending a hearing on the merits of the motion to modify. The trial court, in June, held that it had jurisdiction over the parties and issues and set the case for trial on August 15, 1983.

The review of an interlocutory ruling is by mandamus. Ex parte Cairns, 209 Ala. 358, 96 So. 246 (1923); Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976). The appellant chose to file for a writ of habeas corpus. The order denying the writ is not a final appealable order under Rule 54(b), A.R.Civ.P. As stated in Morgan v. Black, 402 So.2d 1040 (Ala.Civ.App.1981), “[Hjabeas corpus may not be utilized as a substitute for an appeal.”

“Even if we accept as true the alleged violations of the code and/or various rules, the matters complained of were procedural violations of such a nature that they did not render the final judgment of the juvenile court to be void. All such issues could and should have been raised by appeal not by habeas corpus.”

Id. at 1041.

The judgment in this case is not final and will not support this appeal. Goza v. Everett, 365 So.2d 658 (Ala.1978).

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

APPEAL DISMISSED.

All the Judges concur.


text:
    MONTGOMERY BRIDGE & ENGINEERING, INC. v. STATE OF ALABAMA HIGHWAY DEPARTMENT and Ray Bass, Highway Director.
    Civ. 3963.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Sterling G. Culpepper, Jr., and David R. Boyd of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for appellant.
    Jack F. Norton and Edward H. Brogden, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

Appellant Montgomery Bridge and Engineering, Inc., is a pre-qualified contractor which sometimes bids on State highway construction jobs. On February 25, 1983, Montgomery Bridge submitted its bid on Federal Aid Project No. F-188(25) (herein the project) which included the construction of two 0.108-mile bridges in Marengo County, Alabama. The notice to contractors announcing the intent to receive bids on the project stated that “the bracket estimate on this project is from $1,000,000.00 to $1,500,-000.00.” The bracket estimate is the range within which appellee, the State Highway Department (herein the department) would ordinarily expect the bids to fall.

Montgomery Bridge’s bid on the project was submitted on standard forms prepared by the department. The form provided an item-by-item breakdown with the bid for each item written in words in one place and in numerals in another place and a grand total expressed on the last page.

Items 510C-010 and 510C-011 called for itemized bids on reinforced concrete parallel bridge superstructures for the left and right lanes of a highway. The description of the two bridges was otherwise identical in materials and construction.

On the left-lane item, Montgomery Bridge wrote in figures under the “Amount Bid” column “80,600.00” and under the “Item With Unit Price Written in Words” column wrote “Eighty thousand six hundred [Dollars] & no [Cents Per Lump Sum].” The bid expressed in words coincided exactly with the bid expressed in figures.

On the right-lane item Montgomery Bridge wrote “80,600.00” in the “Amount Bid” column, but wrote in “eight thousand six hundred” in the other column. (Emphasis added.) The grand total of the bid was shown as $1,305,091.00, which is the total that one would reach using the amount of “Eighty thousand six hundred dollars” as the bid on the right-lane bridge.

The department determined the bid on the right-lane bridge to be $8,600.00 rather than $80,600.00, which was a difference of $72,000. Montgomery Bridge was the low bidder at either price. Upon learning that the department intended to award it the contract at the price reduced by $72,000.00 or require the forfeiture of its bid bond if the contract was not accepted at the lower figure, Montgomery Bridge filed suit in the Circuit Court of Montgomery County seeking a writ of mandamus and in the alternative for declaratory judgment seeking preliminary and permanent injunction.

After the trial court denied relief, Montgomery Bridge accepted the contract at the lower price in order to continue to keep its employees working and appealed to this court seeking relief.

Though several questions and arguments are advanced by both parties, the disposi-tive issue is whether § 39-2-7, Code of Alabama 1975 is to be construed strictly in the event of a discrepancy between the amount expressed in words and that expressed in figures in a bid for a public contract.

We begin our analysis with § 39-2-7, Code of Alabama 1975, which deals with the effects of errors and discrepancies in bids. It reads, “In case of error in the extension of prices in bids, the unit price will govern. In case of a discrepancy between prices shown in the figures and in words, the words will govern.”

The department argues it was only following the law as stated when it changed the amount of the bid upon discovering the error after the bids were opened. The department in its brief emphasizes that an obvious purpose of the statute is to remove ambiguity and contradictions in bids by using a strictly neutral statutory interpretation rule and thereby avoiding any subjective inquiries into a bidder’s intent. The department stresses the necessity of strictly interpreting the statute in order to protect reputable contractors and the public from unjustified manipulation of bids and also to protect public officials and employees from charges of collusion and corruption by relieving them of the responsibility of determining the intent of the bidder. Moreover, though the department does not charge any wrongdoing in this particular case, they caution that because of the various items of a bid and the numerous ways in which a bid can be manipulated to appear as simple error, true intent is difficult to ascertain when errors, contradictions or ambiguities are presented.

Montgomery Bridge urges that an inflexible mechanical reading of the statute produces unfair and punitive results. Essentially Montgomery Bridge argues the great inequity and absurdity in the department’s using a strict reading of the statute to hold them to the error in the bid, when the nature of the error is so obviously typographical and the department recognizes it as such.

In the resolution of this case we must hold so as to ascertain and effectuate the legislative intent. The purpose of interpretation is not to improve a statute but rather to explain the express language used in the statute. Lewis v. Hitt, 370 So.2d 1369 (Ala.1979). When the language of a statute is clear and unambiguous, there is no room for judicial construction. Employees Retirement System of Alabama v. Head, 369 So.2d 1227 (Ala.1979).

The language of § 39-2-7 is clear in its intent and purpose which is to serve as a rule of construction in the event of a discrepancy between amounts expressed in figures and in words in a bid for a public contract. There is nothing inherently correct in designating that words will control figures in case of discrepancy, but rather it is a matter of legislative discretion and judgment.

The purpose of the statute is clear. Without the application of § 39-2-7, there is no way to determine absolutely what the intent is in a given situation. The statute seeks to avoid a potential quagmire likely to result from making subjective inquiries into a bidder’s intent. To require the department to delve into subjective conjecture external of the instrument would not only cause undue delay and chaos in the department’s processing of bids, but would also open the door to favoritism, fraud and corruption in the letting of public bids.

While this court recognizes the seeming inequity that can result from a strict adherence to § 39-2-7, to do otherwise would be more harmful, in the long run, to the department, bidders and the taxpaying public. To make an exception in this case would be to set a harmful precedent to chip away and erode the statute in future cases involving seemingly innocent mistakes in bids.

Though Montgomery Bridge found itself caught between the proverbial rock and hard place of either forfeiting its bid bond or accepting the contract at the lower price, “[A]ll men are charged as a matter of public policy with a knowledge of the law pertaining to their transactions.” Barber Pure Milk Co. v. Alabama State Milk Control Board, 275 Ala. 489, 494, 156 So.2d 351, 355 (1963), quoting Birmingham Bar Association v. Phillips & Marsh, 239 Ala. 650, 656, 196 So. 725, 731 (1940). Furthermore, “every contract is made with reference to existing law and every law affecting the contract is read into and becomes a part of the contract when made.... ” Bush v. Greer, 235 Ala. 56, 58, 177 So. 341 (1937).

Public contract bidders have long been aware of the need for meticulous care in the preparation of bids, for § 39-2-7 was enacted by the legislature in 1947 (1965 Ala. Acts 492 at 340). Though the statute may seem harsh and inflexible, when applied to the facts of this case, the severity of its application is lessened by the fact that participants in the public bidding process are familiar with the statute and the attendant consequences of its application.

Though we may sympathize with a bidder making an innocent mistake in his bid, the long term protection of the department, bidders and public compels our affirmation of the trial court’s strict adherence to the statute.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.