author: PER CURIAM.

text:
    Sally Holly BURROUGHS & Gladys P. Thomas v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
    83-554.
    Supreme Court of Alabama.
    Dec. 28, 1984.

      Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellants.
    James M. Powell and Wade E. Ballard of Haynsworth, Baldwin, Miles, Johnson, Greaves & Edwards, Greenville, S.C., and James J. Jenkins of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for ap-pellee.
   PER CURIAM.

Appellants Sally Burroughs and Gladys Thomas filed separate complaints in the Circuit Court of Tuscaloosa County, alleging that appellee, The Great Atlantic and Pacific Tea Company (A & P), had discriminated against each in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. (1982). Appellants alleged that A & P committed two independent and actionable types of discrimination: first, reducing the appellants to part-time status due to their age; and second, discharging appellants because they filed ADEA actions concerning the reduction in employment.

Defendant moved for partial summary judgment on the theory that the charges of age discrimination had not been timely filed with the Equal Employment Opportunity Commission (EEOC). Plaintiffs responded to the motions. The court granted summary judgment for the named individual defendant Jim Oswalt.. No appeal was taken from that ruling. A & P’s motion for summary judgment was denied on December 29, 1982. A & P then removed the two cases to the United States District Court, which remanded both cases to the state court.

The cases were then consolidated and tried without a jury. The trial judge did not write an opinion or make findings of fact. On August 12, 1983, the trial judge entered this order on the case action summary sheet: “The Court having heard the evidence in this case, finds for the defendant with costs taxed to the Plaintiff.” From this judgment, plaintiffs appealed to the Court of Civil Appeals. The appeal was transferred to this Court on February 23, 1984.

I. Facts

Appellants Thomas and Burroughs both worked for A & P for more than twenty-five years. Each spent most of her career at the A & P store in the Parkview Shopping Center in Tuscaloosa. Thomas was first employed in 1956, while Burroughs was first employed in 1951. Both were grocery checkers or cashiers. Until their dismissals, which are the subject of this appeal, neither had been disciplined. Thomas was born August 6, 1934; Burroughs was born December 19, 1926.

Appellee A & P, once the nation’s largest retail food chain, has experienced shrinking sales and profits since the early 1970’s. A & P has recently closed over 75% of its stores in an effort to become profitable. In 1980, A & P lost $43 million and faced the prospect of bankruptcy. In order to save additional money, A & P initiated a program in late 1980 to reduce the number of full-time employees. The manager of the Parkview A & P was directed to reduce full-time employees.

On November 3, 1980, appellants and nine other Parkview checkers were reduced to part-time status. Of the other nine, only one was over 40 years old. Appellants earned $7.16 per hour when reduced to part-time. All the other employees reduced to part-time earned $7.16 per hour or more. Although the hourly wage rate was unaffected by the change of status, fringe benefits, including vacation, hospital pay, health insurance, life insurance, and pension plan participation, were affected.

Initially, appellants’ work hours were reduced to 27 per week. Gradually, these were further reduced. By the spring of 1981, appellants were working 12-15 hours weekly. The other nine reduced checkers also found their hours further reduced. A & P presented evidence at trial that appellants worked more hours than most of the other checkers. After appellants filed ADEA charges with the EEOC on May 29, 1981, their hours worked were increased, but were still irregular.

In March 1982, Dayton Dawkins became manager of the Parkview A & P. He was aware of the ADEA complaints filed by appellants. In April, he began to monitor appellant Burroughs’s grocery purchases for coupon misuse. Dawkins monitored Burroughs only when she checked her groceries out with Thomas. He checked three times to see if she had merchandise for each coupon redeemed. On each occasion, the merchandise and coupons matched. Dawkins did not check coupons against merchandise for anyone else. Dawkins testified that he investigated Burroughs because another cashier, Dana Coussement, reported that Burroughs had tried to get her to redeem coupons without purchasing the merchandise.

On April 19, 1982, Dawkins observed Burroughs shopping after work. He testified that she had a large number of coupons. Dawkins instructed Betty Day, the head cashier, to monitor the purchases of Burroughs on the display unit located in the office.

The monitoring showed that Burroughs presented 18 coupons with her purchases on April 19, 1982. To determine if each coupon used by Burroughs matched up with a purchase, Dawkins took the coupons he found in the cash register drawer of cashier Thomas and matched the prices against merchandise in the store. Dawkins testified that 14 coupons did not match up with merchandise purchased by Burroughs. These coupons had a face value of about $5.00.

Dawkins consulted with his supervisor, Ernest Broderick. Each spoke with appellants. Burroughs denied any wrongdoing. Thomas admitted that Burroughs had checked groceries through her lane and misused coupons for years. Other cashiers admitted that Burroughs had attempted to misuse coupons when she checked out with them. Both appellants were suspended on May 12, 1982. On May 31, 1982, both Thomas and Burroughs were fired for misuse of coupons. A & P has a graduated system of discipline. No lesser sanction was imposed.

The A & P coupon policy apparently prohibits the redeeming of coupons without the simultaneous purchase of merchandise. Three checkers testified that they regularly violated the coupon policy by giving credit for earlier purchases by customers (for example, the day before) or in situations where the item was not purchased. Several checkers testified that they had on occasions accepted coupons from Burroughs in violation of the policy, although they later refused to do so. One checker testified that she would probably violate the policy again the next day.

In the A & P southeastern region (Alabama, Florida, Georgia, Kentucky, Mississippi, and Tennessee), only two other checkers have been discharged for misuse of coupons. Geneva Thomson was discharged after redeeming approximately 130 coupons worth $95.00 in violation of company policy. Phyllis Bennett was discharged after redeeming 319 coupons at one time in violation of A & P policy. However, these two employees were discharged after appellants were, but before the trial of this case. Prior to the discharge of appellants, no A & P checker in the southeastern region had ever been discharged for coupon misuse.

The A & P coupon policy is contained within the written company rules. Those rules provide in pertinent part:

“VIOLATION OF THE FOLLOWING COMPANY RULES AND/OR CRIMINAL STATUTES, WHEN COMMITTED ON COMPANY PROPERTY, WILL RESULT IN YOUR SUSPENSION OR DISMISSAL FROM THE COMPANY.
“ACCEPTANCE OF GIFTS OR GRATUITIES FROM A VENDOR (ON OR OFF COMPANY PROPERTY). '
“MISAPPROPRIATION OF FUNDS, UNAUTHORIZED REDEMPTION OF COUPONS OR REFUNDS BY A CASHIER OR PERSON AUTHORIZED TO ACT AS A CASHIER.
“AIDING, ABBETTING OR ENCOURAGING ANOTHER EMPLOYEE TO VIOLATE THESE RULES.
“FAILURE OF ANY EMPLOYEE IN A SUPERVISORY POSITION TO ENFORCE ANY OF THE LISTED REGULATIONS.
“VIOLATION OF THE EMPLOYEE PURCHASING PROCEDURE.”

Although A & P presented testimony indicating that the application of the rules was based on a case-by-case discretionary review, no evidence was presented to suggest that the non-supervisory employees were notified of the informal policy to the extent it differed from the written rules.

While he was the store manager, Dayton Dawkins violated several A & P policies without being fired. These violations were: 1) he accepted a gift of candles from a vendor; 2) he rang up his own merchandise; and 3) he allowed his wife to sign a ticket for merchandise instead of paying for it at the time. Dawkins was not disciplined for these rule violations.

II. Issues

Three issues are raised in this appeal. First, did appellants satisfy the time requirements of ADEA when they filed their charges with the EEOC? Second, was the trial court’s finding that A & P’s reduction of appellants to part-time status was not based on age clearly erroneous and against the great weight of the evidence? Third, was the trial court’s finding that appellants were not discharged in retaliation for filing ADEA complaints clearly erroneous and against the great weight of the evidence?

III. Timeliness of Charges

In order to preserve an ADEA action, a plaintiff must file administrative charges of discrimination with the EEOC “within one hundred and eighty days after the alleged unlawful practice occurred.” 29 U.S.C. § 626(d)(1) (1982).

Appellants were each reduced to part-time status on November 3, 1980, and did not file EEOC charges until late May 1981, more than 200 days later. A & P argues that the appellants’ claims were time barred for failure to satisfy the requirement of the statute.

Appellants contend that the reduction to part-time status constitutes a continuing violation for purposes of tolling the running of the 180-day period. Although no reported cases involving ADEA have considered the issue, a number of cases considering the similar 180-day requirement under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (1982), have reached this question. The United States Courts of Appeals for the old Fifth Circuit and the new Eleventh Circuit have adopted Title VII cases as precedent for ADEA cases. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir.1981) (en banc). See also, Anderson v. Savage Laboratories, Inc., 675 F.2d 1221 (11th Cir.1982).

Title VII cases expressly recognize the concept of a continuing violation. In Clark v. Olinkraft, Inc., 556 F.2d 1219, 1222 (5th Cir.1977), the court recognized that the failure to promote a plaintiff is a continuing violation which tolls the time for filing. Because the management assigned varying hours to the appellants from week to week, appellants contend that each periodic decision by management constituted a continuation of the original decision. We agree. Appellants’ continued involvement as part-time employees makes this case distinguishable from those cases where the failure to hire does not constitute a continuing violation. See, e.g., East v. Romine, Inc., 518 F.2d 332 (5th Cir.1975). The weekly assignment of hours by A & P’s Parkview management constituted continuous maintenance of allegedly illegal employment practices, extending the time for filing charges until 180 days after the last occurrence. Downey v. Southern Natural Gas Co., 649 F.2d 302, 304 (5th Cir.1981); Gonzales v. Firestone Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir.1980).

A & P further argues that appellants failed to file timely administrative charges regarding their retaliatory discharge complaints. Appellants amended their original complaints in court to allege they had been fired in retaliation for filing ADEA charges and simultaneously filed amendments with the EEOC, more than 180 days after the discharge. An additional EEOC filing was unnecessary; the right to judicial relief for the retaliation charge grew out of the first action. See, Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978) (court impliedlyallowed additional damages from on-going discrimination without additional EEOC filings). We find that appellants timely filed charges with the EEOC.

IV. Reduction to Part-time Status

The trial court, sitting without a jury, heard ore tenus evidence, and found for A & P on all counts. On appeal, this Court will review the trial court’s findings with “a presumption of correctness ... if these conclusions were based totally or in part on oral testimony. This Court will not disturb the trial court’s conclusions unless they aré clearly erroneous and against the great weight of the evidence.” First Ala. Bank of Montgomery, N.A. v. Martin, 425 So.2d 415, 425-26 (Ala.1982). “Where the evidence before the trial court [is] undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.” Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980).

The elements of proof in an ADEA action have recently been announced by the United States Court of Appeals for the Eleventh Circuit. In order to make out a prima facie case, plaintiff must show

“ ‘facts sufficient for a reasonable jury to infer that discrimination has occurred.’ McCorstin v. United States Steel Corp., 621 F.2d 749, 754 (5th Cir.1980). Such an inference is generally established by proving that the plaintiff 1) belongs to the statutorily protected age group; 2) was qualified for the job; 3) was discharged; and 4) was replaced by a person outside the protected age group.”

Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1223-24 (11th Cir.1982).

“[OJnce a prima facie case has been established, the employer has the burden of producing evidence tending to show that the employee’s discharge was for a legitimate, nondiscriminatory reason such as good cause.” 675 F.2d at 1224. If the employer comes forward with a nondiscriminatory reason, then the employee “must show by a preponderance of the evidence that the employer’s asserted legitimate reason for the discharge is merely pretextual.” Id. The nondiscriminatory defense must be one allowed by the ADEA.

Plaintiff need not show that age was the sole reason for his discharge or reduction, “but only that age whs a determinative factor in the employer’s decision to fire him.” Id. at 1224. See, Pace v. Southern Ry. Sys., 701 F.2d 1383, 1387 (11th Cir.1983). Plaintiff must “produce some evidence that an employer has not treated age neutrally, but has instead discriminated based upon it.” Williams v. General Motors Corp., 656 F.2d 120, 129-30 (5th Cir.1981).

Regardless of these elements and burdens, plaintiff still carries the ultimate burden of proof. In a Title VII case, the United States Supreme Court stated, “The defendant need not persuade the court that it was actually motivated by the proffered reasons_ It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” The Court added, “The plaintiff retains the burden of persuasion.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 256, 101 S.Ct. 1089, 1094, 1095, 67 L.Ed.2d 207 (1981).

Applying these rules to the present case, we conclude that the trial court did not err in finding that A & P did not discriminate against appellants on an age basis in the time reduction decision. The undisputed evidence shows that A & P eliminated all full-time checker positions in order to increase efficiency and reduce costs. Eight of the eleven reduced employees were younger than 40 years old. In scheduling appellants’ work hours, management gave both of them as many hours as other reduced workers, or more hours. A & P did not hire full-time checkers to replace appellants; instead, A & P hired part-time workers who averaged fewer hours per week than appellants. On the basis of this evidence, it would appear that A & P did not discriminate at all with respect to appellants. Among all the checkers, appellants were treated most favorably.

Testimony was presented at trial that suggested A & P targeted appellant Burroughs for mistreatment. This issue was disputed at trial and cannot serve as a basis for reversal. Even so, appellants did not present any evidence that age discrimination was the basis for, or a factor in, A & P’s policies or decisions. With the burden of persuasion under the ADEA always resting with plaintiff to prove age was a determinative factor in the employment decision, this Court will not reverse the trial judgment when the evidence is in dispute. We find substantial evidence to support the trial court’s conclusion that A & P did not discriminate in the time reduction decision.

V. Retaliatory Discharge

Appellants alleged in their amended complaints that they were discharged in retaliation for having filed ADEA charges. Appellants contend that A & P’s reason for discharge — abuse of the coupon policy— was a pretext for discriminatory behavior. The trial court apparently found for A & P on these issues.

The ADEA makes it unlawful for an employer to discharge an employee because he has filed an age discrimination charge. 29 U.S.C. § 623(d) (1982). To establish a case under Title VII’s analogous provision, 42 U.S.C. § 2000e-3(a) (1982), plaintiff must establish by a preponderance of the evidence that 1) he engaged in protected activity; 2) he suffered an adverse employment action; and 3) participation in the protected activity was causally connected to the adverse employment action. Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580 (5th Cir.1981). Participation in’a protected activity includes filing an employment discrimination claim. Ap-pellee concedes that appellants satisfied elements one and two.

When an employee is fired for violating a work rule, the employee can prove his firing was pretextual by showing “either that he did not violate the work rule or that, if he did, other employees not within the protected class who engaged in similar acts were not similarly treated.” Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1224 (11th Cir.1982). Appellants argue that other employees committing similar violations were treated dissimilarly. We will treat each appellant’s claim in turn.

There was substantial evidence at trial that appellant Burroughs frequently violated A & P’s coupon work rule. A & P presented evidence that Burroughs had given coupons to a number of the checkers when she did not have the matching merchandise. Burroughs benefited financially from receiving credit for these coupons. Although Burroughs denied long-term abuse and although the abuse on April 19, 1982, amounted to only $5.00, A & P did present sufficient evidence to prove a pri-ma facie case of a serious violation of its work rule.

Burroughs further argues that other checkers had not been fired for coupon abuse. A & P presented two examples of checkers who were discharged for serious coupon abuse. One checker improperly redeemed $95.00 in coupons, while the other checker improperly redeemed 319 coupons. Burroughs contends that her $5.00 abuse was not comparable. However, the $5.00 abuse was not the sole violation; the evidence at trial revealed years of abuse. The trial court could have properly concluded that Burroughs was not treated differently.

Burroughs finally contends that the evidence shows work rule abuses by the store manager, Dayton Dawkins, which did not result in discharge. A & P admits that Dawkins rang up his own purchases on two occasions, that Dawkins had allowed his wife to sign a ticket for merchandise without paying for it at the time, and that Dawkins accepted candles from a vendor. The company work rules clearly state that these acts “WILL RESULT IN ... SUSPENSION OR DISMISSAL FROM THE COMPANY.” Even so, A & P presented testimony that these violations were not severe enough to justify dismissal. In addition, Dawkins paid for his purchases and his wife’s ticket, and the gift candles were displayed at the store. The limited number of violations and extenuating circumstances, coupled with the discharge of two other checkers, provided enough evidence to permit a trial court finding that Burroughs was treated similarly to other employees who engaged in similar acts. This finding was not clearly erroneous and against the great weight of the evidence. We affirm as to Burroughs’s claim for retaliatory discharge.

In contrast, appellant Thomas’s coupon abuse was entirely different from that of Burroughs. Thomas did not financially benefit from the abuse. Her abuse was different in degree as compared to Burroughs’s. Thomas had earlier complained to the head cashier, Betty Day, about Burroughs’s attempts to get her to take coupons without the corresponding merchandise. Day told Thomas that she should not accept the coupons. Assuming Burroughs was violating the coupon policy and Day knew it, the head cashier was obligated under the work rules to discipline Burroughs following this report. The work rules provide that “FAILURE OF ANY EMPLOYEE IN A SUPERVISORY POSITION TO ENFORCE ANY OF THE LISTED REGULATIONS” shall constitute a dischargeable offense. Rather than back up Thomas, the Parkview A & P management pushed the responsibility on to the employee. Thomas does not, however, contend that Day’s action waived the work rule or estopped A & P from enforcing it.

A & P argues that it presented evidence of similar acts committed by checkers who were discharged. The two discharged checkers committed substantial coupon abuse for financial reward. There was no evidence that the checkers who accepted the coupons from the two discharged employees were themselves discharged. Indeed, A & P presented no evidence that any other employee was ever fired for improperly accepting coupons. On the other hand, Thomas presented substantial evidence that other checkers who participated in abuse of the coupon policy similar to Thomas’s abuse were not discharged. The evidence discloses that three other checkers improperly redeemed coupons from Burroughs. Moreover, although they ultimately stopped improperly accepting coupons from Burroughs, the testimony at trial revealed that the coupon policy is routinely ignored by checkers in other circumstances. Regular customers are often granted credit for claimed past purchases when presenting a coupon on a later visit. One checker testified she would probably violate the policy again “tomorrow.” A & P does not argue that improper redemption of coupons from customers is different in kind from improper acceptance of coupons from fellow employees.

Thomas’s claim is further supported by the undisputed evidence that the A & P management investigated Burroughs only when she checked out with Thomas. The manual and electronic monitoring was specially directed and was not a part of a store-wide investigation of coupon abuse.

Finally, Thomas argues that A & P overlooked more severe violations of the work rules committed by Dawkins. We have treated this issue earlier and have found some evidence to suggest that A & P’s treatment was not inappropriate. Even so, the fact that Dawkins was not discharged is proof that the work rules are not applied literally in all cases. Certainly, A & P’s treatment of Dawkins does not in any sense support A & P’s position that Thomas was treated the same as other employees committing similar violations.

In reviewing the record, we find that A & P presented no evidence that any checker was ever fired for improperly accepting coupons. On the other hand, Thomas presented substantial evidence of selective enforcement of the coupon policy and other work rules. Under these facts, the trial court should have found that Thomas was not similarly treated compared to other employees not within the protected class who engaged in similar acts.

The trial court’s decision for A & P on Thomas’s ADEA retaliatory discharge claim was clearly erroneous and against the great weight of the evidence.

VI. Conclusion

This Court affirms the trial court’s judgment as to appellant Burroughs’s claims, and affirms as to appellant Thomas's claim of age discrimination in A & P’s decision to reduce her to part-time status. However, we find that the trial court erred as to Thomas’s retaliatory discharge claim; as to this claim, we reverse and remand this cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

ADAMS, J., concurs in all aspects, except that he dissents as to the affirmance with respect to Burroughs’s discharge claim.

      . Witnesses for A & P explained that A & P had high labor costs and operational inflexibility because 60⅜ of its workforce was full-time, compared to an industry average of 30%. Part-time employees cost less in direct and fringe benefits than full-time employees. In addition, part-time employees can be scheduled for peak demand periods, while full-time employees work a standard 40-hour week.

      . Employees working less than 1000 hours per year (approximately 20 per week) lose their right to further participation in the A & P pension plan.

      . We need not reach the issue of A & P's “business necessity” defense, because appellants failed to prove the issue of discrimination in a clear and undisputed manner. We note that recent decisions have rejected cost savings as a defense and now require proof of a compelling need in order to maintain an employment practice which is otherwise illegal under the ADEA. See, e.g., Leftwich v. Harris-Stowe State College, 702 F.2d 686, 692 (8th Cir.1983).

      . Although A.R.Civ.P. Rule 52 makes discretionary the issuance of written findings of fact when the trial judge sits as factfinder, we observe that written findings would be very helpful in this kind of case. Whenever the cause of action involves multiple elements or novel concepts, or both, the appellate process would be substantially aided by written findings.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Troy E. FORD v. Charles R. SCOTT.
    83-907.
    Supreme Court of Alabama.
    Jan. 4, 1985.

      Nelson Allen, Jasper, for appellant.
    Robert T. Wilson of Wilson & King, Jasper, for appellee.
   BEATTY, Justice.

Appeal by the plaintiff, Troy E. Ford, from a judgment for the defendant, Charles R. Scott, in plaintiff’s action for breach of contract. The evidence was presented ore tenus. We affirm.

Scott was the owner of all of the stock of the B & S Trenching and Excavating Company, Inc. (B & S). B & S submitted a successful bid on a waterline contract with a third party, but later B & S was unable to obtain bonding on the project. Scott, therefore, sold 76 percent of the B & S stock to John Thornton, and, in return, Thornton made a $150,000 cash bond and agreed to finance the project to completion.

Thereafter, Thornton brought Ford into B & S as president. Scott was still working for the company and still owned 24 percent of the company’s stock. Ford purchased Scott’s 24 percent of the stock and certain promissory notes made by B & S which were payable to Scott. Ford paid Scott $25,000. Scott also executed a promissory note, prepared in Ford’s office, payable to Ford in the amount of $10,000.

Scott continued to work for B & S for wages after this sale, but left the company after about three weeks. Ford left the company before the job was completed. He sold his stock to Thornton, after offering it to Scott, at the time the project was finished.

Thereafter, Ford sued Scott on the $10,-000 promissory note, which we reproduce below:

“$10,000.00 DATE: January 22, 1980
“The undersigned, for value received, promises to pay to the order of Troy E. Ford, Rt. 2, Box 34D, Quinton, AL, the sum of Ten Thousand and no/100 ($10,-000.00), together with interest on the unpaid portion thereof from date at the rate of 1½ percent per month, on demand, until said sum is paid in full, payable at $ (see terms below), or at such place or places as the owner or holder hereof may from time to time designate. All payments shall be applied first to interest on the unpaid balance of principal, and the balance to principal.
“Each maker and endorser hereby waives all right of exemption under the Constitution and Laws of Alabama, and agrees to pay the cost of collection, in-eluding a reasonable attorney’s fee, if this obligation is not paid at maturity.
“Demand, protest, and notice of protest, and all requirements necessary to hold them liable, are hereby waived by each and every maker and endorser of this note.
“This note is given, executed and delivered under the seal of the undersigned.
“/s/Charles R. Scott
“Witness /s/Dorothy L. Hill
“Terms: Full amount payable for release of assignment on stock from Charles R. Scott to Troy E. Ford (90 shares of B. & S. Trenching & Excavating, Inc.) due ten days after final payment on contract between said B. & S., etc., and Bryan Burn-well Water Authority.”

In his answer to the complaint, Scott alleged the following:

“2. Defendant, Charles R. Scott, says prior to the execution of the promissory note made the basis of this suit, that the said Charles R. Scott, was the sole owner of B and S Trenching and Excavating, Inc. That B and S Trenching and Excavating, Inc., bid on a Bryan-Burnwell Water Authority job in the amount of Four Hundred Thirty-Three Thousand and no/100 Dollars ($433,000.00), and that the said Charles R. Scott, was not financially strong enough to bond the job and transferred seventy-six percent (76%) of the stock of B and S Trenching and Excavating, Inc., to John Thornton, who put up a cash bond in the amount of One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) guaranteeing the performance of the job. The Defendant further says that Troy Ford, the plaintiff, was brought into the job picture and that the defendant did sell to him for Twenty-Five Thousand and no/100 Dollars ($25,-000.00), the remaining stock in B and S Trenching and Excavating, Inc. It was understood that Troy Ford would run the project and he and John Thornton would share in the profit and that Charles R. Scott was to be paid Four Hundred and no/100 Dollars ($400.00) per week for his labor. At the time the promissory note was signed, Ford agreed that when the job was finished that Charles R. Scott had an option to purchase back the stock for Ten Thousand and no/100 Dollars ($10,000.00) provided he did it within ten days of the completion of the job. When the Bryan-Burnwell Water Authority job was completed, there was nothing else for B and S Trenching and Excavating, Inc., to do and they had no other job going, so Charles R. Scott, did not exercise his option to purchase the stock and he denies that he is in any way indebted to Troy Ford.”

Following a hearing, the trial court rendered a judgment for the defendant. Plaintiff’s motion for a new trial was denied and this appeal ensued.

The plaintiff’s principal contention on appeal is that the typewritten language at the bottom of the note does not render the note ambiguous, but that it is harmonious therewith. According to the plaintiff’s testimony, the “Full amount payable” includes $10,000, plus the interest described due 10 days after final payment on the waterline job, AND an option to Scott to repurchase the 90 shares (24%) he had sold to Ford at a price set by Ford himself but not expressed in the note.

Scott, on the other hand, testified that Ford agreed to give Scott an option to repurchase a 9 percent interest in B & S at the conclusion of the waterline project. The terms of this option, according to Scott, were that he would have the option either to buy the 90 shares back or keep the $10,000, at his option.

The terms of the note’s “payable” provision, and Ford’s own actions, tend to support Scott’s position on the effect of the note’s language. The record establishes that Ford asked Scott if he wanted the stock before Ford later sold it to Thornton, thus supporting the conclusion that Scott could buy or not buy the stock for $10,000. Additionally, the language of the provision, “Full amount payable for release of assignment on stock” can be interpreted as meaning that Scott was to pay the $10,000 to have his former “assignment” released (returned) to him. Indeed, each party had his own interpretation of the meaning of the note’s terms, and, those terms being ambiguous, it was the trial court’s responsibility to resolve their meaning. Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975). The trial judge has resolved the facts in the defendant’s favor, and, under the evidence, this Court cannot conclude that his findings are palpably wrong. Harrelson v. Glisson, 424 So.2d 591 (Ala.1982).

Ford also contends that the trial court committed reversible error when, over a general objection, the court allowed Scott’s lawyer to ask Ford questions on cross-examination concerning Thornton’s out-of-court assertions that Ford had embezzled B & S funds. This line of questioning followed inquiry into the identity of the company’s management.

Of course, this case was tried without a jury, and in such a case an erroneous admission of evidence, if this was erroneous, does not render a judgment reversible when the trial court’s conclusions are supported by substantial evidence. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666 (Ala.1981). Here, there was substantial evidence to establish that Scott sold his 24 percent interest in B & S to Ford for $25,000, and that he received an option to repurchase 9 percent for $10,000, following the completion of the waterline project.

Let the judgment be affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.


author: ALMON, Justice.

text:
    Ronald Edward JACKSON v. The ALABAMA STATE BAR.
    82-1048.
    Supreme Court of Alabama.
    Jan. 4, 1985.

      J. Mason Davis, Birmingham, for appellant.
    John A. Yung IV, Asst. Gen. Counsel, Alabama State Bar, Montgomery, for ap-pellee.
   ALMON, Justice.

Ronald Edward Jackson appeals from the judgment of the Disciplinary Board of the Alabama State Bar finding him guilty of fourteen charges of disciplinary rule violations and suspending him from the practice of law for three years.

On March 30, 1983, the Grievance Committee of the Birmingham Bar Association filed two complaints with the Alabama State Bar. The first complaint recited four charges arising out of Jackson’s representation of Carl E. Smith in the matter of Smith’s allegations of employment discrimination against the Tennessee Valley Authority. The second complaint recited twenty-five charges arising out of a closing of a real estate sale conducted by Jackson. After a hearing, the Disciplinary Board found Jackson guilty of two charges in the first complaint and twelve charges in the second complaint.

Jackson argues that multifariousness and prolixity of the complaints prevented him from preparing an adequate defense; that the Grievance Committee did not carry its burden of proof; that the findings of guilty on some charges were inconsistent with findings of not guilty on other charges; that he was denied the right to present his defense to the first complaint; and that the three-year suspension was too severe a penalty.

The evidence presented on Complaint I showed that in August 1981 Smith came from Huntsville to Birmingham to retain Jackson to help him with an administrative action against TVA for employment discrimination. Smith testified that Jackson mentioned the possibility of a suit in federal court. Jackson asked Smith for a $400 retainer, of which Smith paid $50 at the time and the balance in two later payments of $150 and $200. Jackson mailed Smith a contract of employment, which Smith signed and returned without keeping a copy. Smith testified at the hearing that the first page of the contract which Jackson produced in evidence was not the same as the first page of the contract which he signed.

Smith testified that after paying the retainer, he was unable to contact Jackson, despite numerous telephone calls, appointments which Jackson did not keep, visits to Jackson’s office, and letters to which Jackson did not reply. Jackson never provided Smith with any assistance in his action before TVA, nor did he file suit in federal court. Smith wrote Jackson on August 11, 1982, asking him to refund the retainer and provide a list of services rendered. When he received no response to this request, Smith went to the Grievance Committee of the Birmingham Bar Association and filed a complaint.

The evidence presented on Complaint II showed that Jackson represented both the seller, Arthur Shedrick, and the purchasers, Mr. and Mrs. Charlie Williams, Sr., at the closing of the sale of Shedrick’s home on November 23, 1979. Jackson prepared the instruments executed at the closing: the closing statement, the deed, the mortgage, and mortgage note. These documents contained several errors: for example, the mortgage reverses the parties, listing Shedrick as the mortgagor and the Williamses as the mortgagees; and the mortgage note calls for payments which would require five years to pay off the principal, although the terms of the note specify that it is to be paid within three years. Jackson did not fill in the acknowledgment form which he signed as a notary public in witnessing Shedrick’s signature to the deed.

Jackson did not have the deed recorded until two weeks later, and he never had the mortgage recorded. He collected the following sums listed in the closing statement: $255.00 to obtain title insurance, $418.19 to pay a judgment against Shedrick in favor of Pizitz, Inc., and $209.02 to pay property taxes. Jackson did not make any of these payments. When Shedrick later asked him if he had paid the taxes, he at first said that he had, but later gave Shedrick a check to refund the money. He apparently told Shedrick that he would deposit money in his account the next day to cover the check, but when Shedrick presented the check at the bank three days later, it was refused for insufficient funds. The following week Shedrick negotiated the check to a third party, who later informed him that the check had been returned because of insufficient funds.

Shedrick tried unsuccessfully to reach Jackson to have him make the check good. In October 1982 he reported the bad check to the Grievance Committee. In January 1983 he sent Jackson a registered letter threatening to swear out a warrant for his arrest. Jackson promptly left on She-drick’s door a note stating that he had been “trying to contact you to make good the check that I issued.” Shedrick then went' to Jackson’s office, and Jackson paid him cash.

Jackson testified at the hearing that he had deposited the purchase money paid by the Williamses into his trust account and paid the realtors’ commissions and the balance due after closing costs to Shedrick. He reconstructed this from his bank account statement. He was not able to verify whether he had paid the sums he collected at the closing to the respective parties to whom they were due, nor to account for those monies: “I did not have available to me, records, and I could not ascertain or tell anything about what had happened in 1979 in terms of financial transactions on this account as relates to this particular matter.” Jackson stated that his office had been burglarized and some records lost, but he did have his file for this transaction.

Complaint I recited facts regarding the Smith case and alleged that Jackson “knowingly failed to pursue the matter on behalf of Mr. Smith, and knowingly failed to apprise Mr. Smith of the status of the matter.” The four charges, based on the single set of factual allegations, charged Jackson with violations of four different Disciplinary Rules of the Code of Professional Responsibility of the Alabama State Bar, 293 Ala. XXIII. The Disciplinary Board found Jackson guilty of violating DR 6-101(A), “A lawyer shall not willfully neglect a legal matter entrusted to him,” and DR 7-101(A)(2), “A lawyer shall not intentionally ... [f]ail to carry out a contract of employment entered into with a client for professional services....” The Board found him not guilty of violating DR 7-101(A)(1), “A lawyer shall not intentionally [fjail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules ...,” and DR 7-101(A)(3), “A lawyer shall not intentionally ... [pjrejudice or damage his client during the course of the professional relationship....”

The charges in Complaint II fall into seven groups. Charges I-IV allege the errors in the closing documents, the delay in recording the deed, and the failure to record the mortgage. Each of these charges accuses Jackson of violating one of the four above-quoted rules on the basis of these allegations. The Board found him guilty on all four charges.

The second, third and fourth groups of charges follow a pattern. Charges V-VIII are based on Jackson’s failure to secure the title insurance, and charge him with violation of the following rules, respectively: DR 1-102(A)(4), “A lawyer shall not ... [ejngage in conduct involving dishonesty, fraud; deceit, or misrepresentation, nor be guilty of wilful misconduct”; DR 1-102(A)(6), “A lawyer shall not ... [ejngage in any other conduct that adversely reflects on his fitness to practice law”; DR 6-101(A), quoted above; and DR 7-101(A)(l) through (3), the three rules quoted above, included as a single charge. The Board found him guilty of violating DR 1-102(A)(4) but not (A)(6), and guilty of violating DR 6-101(A) (willful neglect) but not 7-101(A)(l) through (3) (intentionally failing to act or damaging a client).

Charges IX-XII make the same charges based on the failure to pay the Pizitz judgment, and charges XIII-XVI make the same charges based on the failure to pay the taxes. The Board made parallel findings of guilty and not guilty.

Charges XVII-XIX recite the delivery of the funds to Jackson at the closing. Charge XVII alleges that Jackson violated DR 9-102(A): "All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts .... ” Charge XVIII charges him with violation of DR 9 — 102(B)(3): “A lawyer shall ... [mjaintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.” Charge XIX accuses him of violating DR 9-102(B)(4): “A lawyer shall ... [n]ot misappropriate the funds of his client, either by failing promptly to pay over money collected by him for his client or by appropriating to his own use funds entrusted to his keeping.” The Board found him not guilty on charge XVII, and guilty on charges XVIII and XIX.

Charges XX and XXI raise Jackson’s failure to deliver the deed to the Williamses as violations of DR 1-102(A)(6) and DR 6-101(A). The final group of charges concerns Jackson’s dealings with Shedrick regarding the refund of the money for the property tax, and alleges violations of DR 1-102(A)(3) (conduct involving moral turpitude), DR 1-102(A)(4), DR 1-102(A)(6), and DR 7-102(A)(5) (knowingly making a' false statement). The Board found him not guilty on all of these charges.

An allegation of prolixity similar to Jackson’s has been answered in a controlling decision of this Court. In Cain v. Board of Comm’rs of Alabama State Bar, 345 So.2d 1343 (Ala.1977), Cain raised a due process argument based on the difficulty of defending the numerous charges (he had been found not guilty of 39 and guilty of 19). This Court found no due process violation:

“[Ajlthough the charges filed against him were rather lengthy, we cannot say that they were so prolix, redundant, repetitive, or vague as to prejudice Cain. In several instances, more than one charge was based on a single alleged act of Cain, but in each of those instances, each separate charge alleged the violation of a different rule. There were also numerous different wrongful acts alleged. The lengthiness of the charges could have been avoided only by omitting some of the alleged wrongful acts or by combining some of the charges. The former alternative would have placed a premium on the proliferation of wrongful acts; the latter would have served no purpose and might even have impaired the effectiveness of the notice to Cain of the charges against him.”

Id., at 1345-46.

The complaints in this case are carefully drafted to allege the various acts related to the Grievance Committee by Jackson’s clients and apparent from the documents he prepared. The division of the complaints into separate charges, each alleging a violation of a single disciplinary rule, does not render the complaints redundant, multifarious, prolix, or in any way so complicated and overwhelming as to prejudice Jackson’s right to defend himself. Rather, this careful drafting protects Jackson’s right to notice of the charges against him.

We have set out the charges at some length to answer both Jackson’s charge of prolixity and his charge of inconsistency. We find, just as in Cain and Dodd v. Board of Comm’rs of the Alabama State Bar, 350 So.2d 700 (Ala.1977), that there is no inconsistency between the findings of guilty and the findings of not guilty. The Board has accepted as true the facts alleged, and we find support in the record for the Board’s findings. Indeed, Jackson’s testimony contradicted very little of the evidence that he had done the acts alleged—he mainly tried to justify or extenuate his actions. See the discussion below for Jackson’s allegation that the Board gave him no opportunity to present his defense to the Smith case.

The Board’s failure to find that these-actions supported all of the violations predicated upon them by the Grievance Committee imparts no impermissible inconsistency to the Board’s findings. Granted, the rules which the Board found Jackson to have violated are similar in some instances to the rules which it found him not to have violated, but there are shades of difference —otherwise, why have separate rules?

For example, the finding in the Smith case that Jackson violated DR 6-101(A), willfully neglecting a legal matter, is distinguishable from the finding that he did not violate DR 7-101(A)(l), intentional failure to seek the lawful objectives of his client. Jackson’s knowledge that Smith was pursuing his administrative action on his own would support a finding that he did not intentionally fail to seek Smith’s objectives, but would not preclude a finding that he willfully neglected to assist him, as he had been hired to do.

Jackson asserts that the Grievance Committee did not sustain its burden of proof. The charges must be proved by clear and convincing evidence. Worley v. Disciplinary Board of the Alabama State Bar, 407 So.2d 822 (Ala.1981); Hunt v. Disciplinary Board of the Alabama State Bar, 381 So.2d 52 (Ala.1980). We have reviewed the record and find that the evidence supports the Board’s findings.

Jackson also argues that the Board violated his rights to due process of law, guaranteed by the Fourteenth Amendment to the United States Constitution, when it did not allow him to present his defense in the Smith case. Counsel for the Bar proceeded directly from the Smith case to the Shedrick case. The Bar responds to Jackson’s argument by saying that this followed the usual manner of conducting disciplinary hearings involving more than one complaint: “Unless there is a prior stipulation between the State Bar and respondent’s counsel to proceed in a different fashion, the State Bar always presents its evidence as to all of the complaints before the respondent attorney presents his evidence in defense.” (Emphasis by the Bar.)

Whether or not this is indeed the Bar’s normal practice makes no difference. Jackson made no objection when the Board instructed counsel for the Bar to proceed with Complaint II. At the close of the proceedings, the Board noted that no questions had been asked about the Smith case. Jackson’s attorney responded,

“We were not given an opportunity to put Mr. Jackson on the stand at the end of Mr. Yung’s case. He went directly into the other case.
“If the Panel would like to give to Mr. Jackson the reputation [sic—refutation?] of the allegations made by Mr. Smith, we’d be glad to do that. But, I would certainly like to argue testimony given by Mr. Smith, and the evidence that has been placed, written evidence that has been placed into evidence, here.”

Counsel then proceeded directly into his argument. This exchange clearly shows that he was aware of the opportunity to place Jackson on the stand to respond to Smith’s allegations, but chose not to do so. The Board not only gave Jackson the opportunity to present his case, but also pointed out that he had neglected to do so with regard to Complaint I. There was no due process violation here.

Finally, Jackson argues that the three-year suspension was too severe a penalty. We disagree. The essentially uncontested facts showed Jackson’s continuing disregard for his clients’ affairs and appropriation of their money without providing the services for which he was retained. The Board’s punishment for this conduct was not too severe.

For the reasons stated, the judgment is affirmed.

AFFIRMED.

All the Justices concur except ADAMS, J., who recuses.


author: HOLMES, Judge.

text:
    Clarke Liddell COOK and Henry Cook and Vonda Cook v. Donna Carol COOK.
    Civ. 4367-X.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1984.
    Stephen R. Arnold, Birmingham, for appellants.
    Leo E. Costello of Costello & Stott, Birmingham, for appellee.
   HOLMES, Judge.

This is a child custody modification case.

The father sought to modify the original divorce decree that awarded custody of the parties’ minor child to the mother. The father’s parents intervened in the suit and petitioned the trial court to award custody to them, the paternal grandparents.

After an ore tenus hearing, the Circuit Court of Jefferson County denied both the father’s and the grandparents’ petitions to modify and allowed custody to remain with the mother.

The father and the grandparents appeal; however, the father does not favor this court with a brief. The grandparents, through able counsel, contend that the trial court erred in failing to award custody of the child to the grandparents. We disagree and affirm.

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

The parties were divorced on December 4, 1981; custody of the child, who is now three years old, was awarded to the mother with visitation rights to the father. Shortly after the divorce, the mother remarried.

The grandparents allege that the stepfather is not a suitable parent and is guilty of outrageous and appalling conduct toward the child.

Most of the evidence was in conflict as to the stepfather’s conduct toward the child. There was testimony that the stepfather used excessive discipline and spoke offensive language in the presence of the child. There was also medical testimony from a child psychologist that the child had been treated too strictly.

There was, however, ample evidence that the child was healthy and well-adjusted and loved both his stepfather and mother. Additionally, there was other medical testimony that the child displayed normal behavior and showed no signs of abuse.

When the trial court renders its judgment after an ore tenus hearing on a petition to modify the child custody provisions of a divorce decree, this court presumes that the trial court correctly applied its discretionary authority and adjudged the best interests of the child. We will not disturb the trial court’s judgment unless it is so unsupported by the evidence as to appear plainly wrong. Lightfoot v. Bylsma, 412 So.2d 813 (Ala.Civ.App.1982).

There is also a rule of repose applicable to a petition to modify a prior custody decree. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). In order to overcome these presumptions, the grandparents and/or the father must have presented evidence that a change in custody would “materially promote” the child’s best interests. Ex parte McLendon, 455 So.2d 863 (Ala.1984).

Here, the trial court heard the evidence, observed the witnesses, and based its decision apparently on these factors in arriving at its determination that the change in custody would not “materially promote” the child’s best interests.

In view of the presumption favoring the trial court’s finding and the primary consideration being the welfare of the child, this court cannot say that the trial court erred in failing to award custody of the child to the father or the grandparents. We particularly note the conflicting testimony regarding the child.

For this court to reverse would be to substitute our judgment for that of the trial court. This the law does not permit. Mothershed v. Mothershed, 348 So.2d 501 (Ala.Civ.App.1977).

The mother has asked this court to dismiss this appeal as frivolous under Rule 38, Alabama Rules of Appellate Procedure, and assess a penalty against the father and the grandparents. Clearly, this appeal is not frivolous and dismissal with penalty would not be proper.

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

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Gussie Edward HARP v. Mary Middleton HARP.
    Civ. 4369.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1984.
    Pamela J. Gooden and Carl 0. Pilgrim, Montgomery, for appellant.
    William P. Cobb II of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties and made a division of property. The division of property in pertinent part provides as follows: The wife was awarded exclusive use and occupancy of the house and was required to pay the first mortgage on the house; the husband was required to pay the second mortgage on the house; the husband is to receive an amount equal to one-half of the equity in the house upon the remarriage of the wife or the sale of the house by the wife; and the personal property was previously “equitably and amicably divided.”

The husband, through able counsel, appeals, contending that the trial court erred to reversal in appointing a special master, erred in adopting the findings of the special master, erred in its division of the real property, and, finally, denied the husband due process of law.

We find no merit in any of these issues and affirm.

I

Regarding the husband’s contention that the trial court erred in appointing a special master to hear testimony and report findings, we note that Alabama Rule of Civil Procedure 53(a) provides that “the court in which any action is pending may appoint a special master therein.” (Emphasis added.)

Appointment of a master is discretionary with the court according to the language of the rule. Furthermore, the comments to the rule state that the appointment of a special master by a court is discretionary. See Committee Comments, Rule 53, A.R. Civ.P.; see also 2 C. Lyons, Alabama Practice at 285 (1973).

We also note that the appointment of a deputy register, such as we have in this instance, as a special master to hear testimony and make findings concerning the division of property in a divorce proceeding is not only appropriate but also appears to be a common practice.

In view of the above, we find, in this instance, no error, i.e., abuse of discretion in the trial court’s action appointing a special master.

Additionally, the husband’s further contention, that the trial court erred in failing to specify to the master the issues to be considered, is without merit because Rule 53(c), A.R.Civ.P., states that “[t]he order of reference to the master may specify or limit his powers.... ” (Emphasis added.) Specifying the issues to the master is discretionary with the court by virtue of the language of the rule.

II

Regarding the husband’s contention that the trial court erred in adopting the findings of the special master, we note that Rule 53(e)(2), A.R.Civ.P., states that “[i]n an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” (Emphasis added.) Furthermore, the Alabama Supreme Court, in interpreting Rule 53(e)(2), A.R.Civ.P., held as follows:

“[A] court accepts a master’s findings of fact in non-jury actions unless clearly erroneous; and to the extent the trial court has adopted the findings of a master, this same standard applies to an appellate review of these findings.... In essence, a master’s report is accorded the same weight as a jury verdict and, therefore, is not to be disturbed unless it is palpably and plainly wrong.”

Burgess Mining & Construction Corp. v. Lees, 440 So.2d 321, 327 (Ala.1983) (citations omitted) (emphasis added); accord Brock v. Brock, 281 Ala. 525, 531, 205 So.2d 903, 908 (1967); see Davis v. Davis, 274 Ala. 277, 278, 147 So.2d 828, 830 (1962); cf. Fry v. Fry, 451 So.2d 344, 345 (Ala.Civ.App.1984).

In the present case the master made factual findings concerning the financial condition of the parties and their marital and employment history. These findings are supported by the testimony and, therefore, are not “clearly erroneous” or “palpably and plainly wrong.”

Ill

The master made a recommendation that “title” to the house be placed in the wife, that the wife be responsible for the first mortgage on the house, and that the husband receive an amount equal to one-half the equity in the house upon the remarriage of the wife or the sale of the house by the wife. The trial court adopted this recommendation in its division of the real property.

As previously mentioned, the husband contends that the trial court erred in its division of the real property, and, although not previously mentioned, the husband contends that the ore tenus rule is inapplicable because of certain procedural aspects. Accepting the latter premise without so deciding, the law still mandates that a division of property will not be reversed on appeal unless plainly and palpably wrong. See Sprinkle v. Sprinkle, 441 So.2d 974, 976 (Ala.Civ.App.1983).

In the present case the division of property is not only not plainly and palpably wrong but also apparently fair. The testimony indicates that the husband lived in the house less than two of the six years that the couple has owned the house, that the wife made almost all of the first mortgage payments on the house, maintained the house, and paid the utilities, that the wife has no other place to live, that the husband lives in a furnished, three-bedroom house in another state with option to purchase the house, and that, even though the house in dispute was purchased through the husband’s single Veterans Administration entitlement, the husband still has a substantial part of that VA entitlement remaining.

We, therefore, hold that the trial court did not err in its division of the real property in this case.

IV

Regarding the husband’s contention that he was denied due process of law Under the United States Constitution and Alabama Constitution, we note that this issue was raised for the first time in a post-trial motion for a new trial. We held the following regarding the timeliness of constitutional issues raised for the first time in a motion for new trial: “[W]e will not allow a party to raise such an issue for the first time in a motion for new trial or on appeal.” Burton v. Burton, 379 So.2d 617, 618 (Ala.Civ.App.1980).

We find that the Burton principle is applicable in this instance.

However, we also note the husband’s due process argument is without merit for other reasons. Testimony was properly taken before the special master appointed per Rule 53, A.R.Civ.P. Any perceived delay in the adjudication due to the appointment of a special master does not appear injurious to the husband. Cf. Peseau v. Civil Service Board of Tuscaloosa County, 385 So.2d 1310, 1315 (Ala.Civ.App.1980).

The wife has requested an attorney’s fee for representation on appeal. A fee of $750 is hereby awarded.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Annie L. JONES v. Samuel JONES.
    Civ. 4398.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1984.

      Carl E. Chamblee, Sr., Birmingham, for appellant.
    Charles H. Huey, Birmingham, for appel-lee.
   ROBERT M. PARKER, Retired Circuit Judge.

The parties to this appeal were divorced on December 3, 1979. The judgment of divorce incorporated a written agreement which provided, among other things: “2. Defendant shall pay to the plaintiff the sum of $240.00 per month as child support commencing on the first day of December, 1979, and continuing thereafter until the youngest of said minor children shall reach the age of majority.”

Appellant filed a motion for contempt and arrearage and appellee filed an answer and a motion to modify the amount of child support, as one child had reached majority and he had remarried. After ore tenus hearing, the trial court awarded judgment for arrearage in the sum of twelve hundred dollars ($1,200.00) and reduced the amount of child support to one hundred fifty dollars ($150.00) per month.

On appeal appellant contends the trial court erred in awarding the amount of ar-rearage, failing to find the appellee in contempt of court, failing to award the appellant an attorney’s fee, and reducing the amount of child support.

The record reveals the oldest child, Anita, moved from her mother’s home to her father’s home in June 1982, and lived with him until Thanksgiving of that year, when she moved in with her aunt for a six-week period. She then moved to live with a boy friend. She reached majority on December 2, 1983. When she was living with her father, he purchased some clothing for her, as appellant would not release her clothing until January 1983. The father provided her a home and food, and paid $845.50 private school tuition, as she had always attended private school and was a senior. When she resided with her aunt, the father paid $25.00 per week for her support.

In August 1982, appellee began to pay to the appellant $120.00 per month as child support, and continued to do this through April 19, 1984, the date of the hearing. The trial court awarded appellant $1,200.00 for arrearage, giving credit of $1,320.00 to the father. Claims of arrear-age of ordered child support may be allowed off-set by credit for amounts expended by the obligated parent, when such parent actually furnishes support for a child while in his custody or the custody of another. Keller v. Keller, 370 So.2d 306 (Ala.Civ.App.), cert. denied, 370 So.2d 308 (Ala.1979). Under the ore tenus rule this decision is presumed correct and will not be disturbed on appeal unless the evidence shows it to be plainly and palpably wrong. Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980). We find no error as to the arrearage.

The trial court did not cite the appellee with contempt of court and did not award appellant an attorney’s fee. Inability to comply with a child support decree or noncontumacious failure to so comply, if proven to the court’s satisfaction, will avoid a finding of contempt. Cooper v. Cooper, 401 So.2d 99 (Ala.Civ.App.1981). There was a conflict in the testimony as to the dialogue between the parties at the time the payments were reduced in 1982. The scope of review in contempt cases is limited to questions of law and does not extend to the weight and sufficiency of the evidence, but only to the question whether any evidence supports the trial court’s decree. Thomas v. Thomas, 406 So.2d 939 (Ala.Civ.App.1981). Attorney’s fees in enforcement proceedings may not be awarded when no contempt citation is made. Scott v. Scott, 375 So.2d 797 (Ala.Civ.App.1979). We cannot say the trial court erred in failing to cite appellee for contempt and award an attorney’s fee.

An order modifying the child support provisions of a divorce decree will not be reversed on appeal unless it is such an abuse of discretion as to be plainly and palpably wrong. Little v. Little, 349 So.2d 48 (Ala.Civ.App.1977). The most pertinent factor in determining a modification of child support is a material change in the needs, conditions and circumstances of the children. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660; cert. denied, 295 Ala. 429, 321 So.2d 664 (1975). That factor coupled with the financial ability of the father to meet such needs, determines the basis for modification. Womble v. Womble, supra. The burden of showing a material change in circumstances rests upon the moving party. Inman v. Inman, 370 So.2d 1037 (Ala.Civ.App.1979). In reviewing the evidence, we find that one child, Anita, has reached majority and left home; the net income of the father and his present wife is $1,520.00 per month with uncontested expenditures of $1,479.65, plus indebtedness to doctors, dentists and the Internal Revenue Service in the sum of $896.00; there was no monetary evidence as to the present needs of the minor child, Angeleta De Carla.

The modification of child support is a matter within the judicial discretion of the trial court. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981). We will not disturb the exercise of such discretion on appeal, unless, after a review of the evidence, we find the trier of the facts to be plainly and palpably wrong. Moore v. Moore, 396 So.2d 1074 (Ala.Civ.App.1981).

We find no abuse of discretion in this case, and the judgment of the trial court is affirmed.

The foregoing opinion was prepared by retired Circuit Judge ROBERT M. PARKER, 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: BRADLEY, Judge.

text:
    Frances Parker ERBEN v. Joseph Betros ERBEN.
    Civ. 4436.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1984.

      Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.
    Roderick Beddow, Jr. and James M. Ful-jan, Jr., of Beddow, Fullan & Vowell, Birmingham, for appellee.
   BRADLEY, Judge.

The wife appeals from a final decree of divorce.

The parties were married on June 26, 1978. The couple has a child, Jamilia Ellen Erben, born of the marriage. The wife has two teenaged children from a previous marriage. On August 26, 1983 the wife, Frances Erben, sought a divorce from her husband, Joseph Erben, and custody of the couple’s child. The husband filed an answer and counterclaim, requesting a divorce and seeking custody of Jamilia.

The trial court granted the parties a divorce and awarded custody of the minor child to the husband. The wife’s motion for new trial or, in the alternative, to alter, amend, or vacate the judgment was denied.

The wife urges on appeal that the trial court’s award of custody of the minor child to the husband was unsupported by the evidence and so palpably wrong as to constitute reversible error. We disagree.

Each party made various charges of misconduct against the other at trial. Testimony revealed that the husband had several large debts, some of which were the result of gambling losses. The wife admitted that during the marriage she had engaged in adultery with Tommy Joe Alexander, who was also married at the time. She and Mr. Alexander often traveled together. The wife also frequently visited her paramour at his apartment. The parties’ minor child was often present during these visits and accompanied the wife and Mr. Alexander on their trips. Jamilia has also been present during confrontations between Mrs. Alexander and the wife.

The wife argues that evidence of her adultery is insufficient ground to deprive her of custody of Jami. Our courts have stated that acts of adultery alone are not an absolute bar to an award of custody to the “accused” mother. Mason v. Mason, 276 Ala. 265, 160 So.2d 881 (1964); Etheridge v. Etheridge, 375 So.2d 474 (Ala.Civ.App.1979). However, we have also held that a party’s adulterous conduct is a factor to be considered in determining which party shall have custody. Lipsey v. Lipsey, 450 So.2d 1095 (Ala.Civ.App.1984). The trial court heard the testimony offered by the parties, and we must assume that it considered all of the testimony, including that relating to the wife’s misconduct. We find nothing in the record to indicate that the trial court relied solely on this evidence.

There was evidence before the trial court that the wife had frequently left the child in the care of her teenaged children and her husband while she went out drinking with her friends. She often stayed out very late and sometimes did not return home until the next day. Occasionally she spent the night with her lover. The mother appeared also to have difficulty disciplining Jamilia. Also, her teenaged daughter was experiencing difficulty in school, receiving poor marks in several of her courses. The husband had consulted with the daughter’s school counselors concerning this matter, but the wife had not done so.

The determination of child custody is left to the discretion of the trial court, and the court’s determination after an oral hearing of the matter will not be set aside unless it is so contrary to the evidence as to be plainly and palpably wrong. Mansell v. Mansell, 437 So.2d 588 (Ala.Civ.App.1983).

The court concluded that it would be in the child’s best interests to be in the husband’s care and control, given the wife’s home environment. After carefully reviewing the evidence in the record before us, we cannot say that the trial court abused its discretion in awarding custody to the husband.

As an additional reason for a reversal of the trial court’s decree, the wife says that the court committed reversible error in allowing Fred Erben, a witness at the hearing and the husband’s brother, to remain in the courtroom after invocation of the “witness rule.” We disagree.

Excluding or excusing witnesses from the rule is a matter left largely to the discretion of the trial court. Camp v. General Motors Corp., 454 So.2d 958 (Ala.1984). The court’s decision will not be reversed on appeal unless there is a gross abuse of discretion. Johnson v. Harrison, 404 So.2d 337 (Ala.1981). Fred Erben is an attorney in the firm which represented the husband, and it was made known to the trial court that he had participated in the preparation of certain aspects of the case and, even though he was not acting as one of the attorneys, his presence in the courtroom would permit the trial attorneys to ask him questions about the case. In addition, we have been cited to no cases where the trial court’s decision in either excluding or excusing witnesses from the rule has been reversed. We hold that under the facts presented there was no abuse of discretion in the court’s action excusing Fred Erben from the rule.

The wife also argues that the trial court committed reversible error in refusing to admit into evidence sexually explicit materials. These materials were found in Fred Erben’s bedroom. Fred and Joe Erben (the husband) reside in the same house with their mother. The wife attempted to introduce these materials into evidence in order to show that the child would be raised in an “unfit environment” if its custody was awarded to the husband. The trial court refused to admit these items into evidence on the ground that these materials raised a res inter alios acta as to the husband. Under the rule of res inter alios acta, “a litigant cannot be affected by the words or acts of others with whom he is in no way connected, and for whose words or acts he is not legally responsible.” 32 C.J.S. Evidence § 576 (1964) (footnote omitted).

Although it might be shown that Joe Erben was not legally responsible for the act of his brother, Fred, in keeping pornographic material in his room in their mother’s house, the fact that such material is kept in the house where the child in question is living and, for ought appearing, such could have been seen by the child, is relevant to the custodial environment in which the child is living. We perceive no real difference in the presence of these pictures in the child’s living area and evidence of other types of sexual misconduct in the house.

We believe this proffered evidence was relevant to the issue before the court and that the court erred in not admitting it. However, we do not find that the erroneous refusal to admit the evidence requires a reversal of the case. We deem rule 45, Alabama Rules of Appellate Procedure, to be applicable in this aspect of the case.

There is no evidence that the child saw this material or that she was aware that it was in her uncle’s room. Furthermore, all the other evidence supports the trial court’s finding that the father is the better custodian of his child. Consequently, the refusal to admit these books into evidence does not constitute reversible error. Rule 45, A.R.A.P.

We find no merit in the wife’s contention that the trial court committed reversible error by its comments on her testimony, allegedly indicating the court’s disbelief of her testimony and a prejudice against her. A careful review of the record reveals that the wife’s testimony was often conflicting and confusing. The trial court’s remarks that she needed to be more consistent and careful in her testimony were not inappropriate and were intended merely to clarify her testimony. Furthermore, the court’s remarks were directed to both the wife and the husband. The wife has failed to show that the court’s remarks were prejudicial to her in any respect. Absent such a showing, the trial court’s remarks at trial are insufficient ground for reversal. Stewart v. Stewart, 354 So.2d 816 (Ala.Civ.App.1977).

Finally, the wife says that the trial court erred by not ordering the husband to repay a $10,000 debt owed to wife’s father, and by not ordering husband to repay her the money she had paid on the debt.

In making this argument wife has failed to cite any authority for her contention. Rule 28(a)(5), A.R.A.P., requires the citation of authority in support of an argument. Also, see Dean v. Dean, 424 So.2d 1323 (Ala.Civ.App.1982). Consequently, we will not consider this issue.

We will note, however, that it has been held that a divorce decree will not be voided for failure of the trial court to fix responsibility for marriage debts, Miller v. Miller, 391 So.2d 119 (Ala.Civ.App.1980), the theory being that the trial court has left the parties, as to their debts, in the same position after the divorce as they were in prior to the divorce.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Roy Edward JONES v. JEFFERSON COUNTY BOARD OF ZONING ADJUSTMENTS, et al.
    Civ. 4467.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1984.
    Thomas L. Stewart of Gorham, Waldrep, Stewart & Kendrick, Birmingham, for appellant.
    Charles S. Wagner, Birmingham, for ap-pellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from the granting of a summary judgment in favor of the appel-lee.

The issues presented are the same as those presented in Swann v. Board of Zoning Adjustment of Jefferson County, Alabama, 459 So.2d 896 (Ala.Civ.App.1984).

On authority of Swann, supra, this case is due to be reversed and remanded.

The foregoing opinion was prepared by retired Circuit Judge ROBERT M. PARKER, 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.

REVERSED AND REMANDED.

All the Judges concur.


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    Walt KEIMER v. Gaynell KEIMER.
    Civ. 4469.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1984.

      T.J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    James D. Walker, Albertville, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

After an ore tenus hearing, the trial court divorced the parties, made a division of property, and awarded the wife alimony.

The husband, through able counsel, appeals, contending that the trial court so abused its discretion in the division of property and in the award of alimony that reversal is required. We find no such abuse in the trial court’s action and affirm.

We deem it neither necessary nor prudent to set out in detail the facts of this appeal. The following is sufficient.

The parties were married for approximately one year. The husband is fifty-one years old and the wife is thirty years old.

The husband earns over $66,000 per year from his employment. In addition, the husband has some income from property rentals. The husband is also provided by his employer with a five-bedroom house and a company car. The employer pays most of the utilities on the house and provides gas for the car.

The wife has been employed in the past. Her last employment was working as a secretary for the husband before the marriage. She earned approximately $230 per week from this employment.

The wife was awarded $600 per month for six months, $400 per month for an additional six months, and $200 per month for the next succeeding six months. Thereafter, the wife was awarded $1 per month until she remarries or for a period of twelve years, whichever occurs first. These awards totaled $7,344.

In addition, the wife was awarded an automobile, which she had in her possession; certain household goods, which she brought into the marriage; two horses (there was some evidence that one horse was owned by the wife prior to the marriage and the other horse was owned by the wife’s daughter); one boat, which the wife won at a raffle; and $1,000 in cash.

The cases are legion which hold that the complained of matters in divorce cases are subjects which fall within the sound judicial discretion of the trial court. The trial court’s decision thereon will not be disturbed on appeal except where such discretion was plainly and palpably abused. See generally Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980); Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (Ala.Civ.App.1974). Periodic alimony: Hilton v. Hilton, 385 So.2d 640 (Ala.Civ.App.1980); Dunnam v. Dunnam, 381 So.2d 654 (Ala.Civ.App.1980). Alimony in gross: Mitchell v. Mitchell, 351 So.2d 602 (Ala.Civ.App.1977); Huggins v. Huggins, 57 Ala.App. 691, 331 So.2d 704 (Ala.Civ.App.1976). Division of property: Harris v. Harris, 390 So.2d 293 (Ala.Civ.App.1980); Jackett v. Jackett, 380 So.2d 919 (Ala.Civ.App.1980).

Equally well established is the “ore tenus ” rule. When the trial court personally hears the evidence, as in the instant appeal, the judgment appealed from is presumed to be correct on appeal. The judgment cannot be altered on appeal if it is supported by legal evidence unless the trial court’s decision was palpably wrong. Austin v. Austin, 408 So.2d 138 (Ala.Civ.App.1981); Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980).

With the above in mind, with particular emphasis on the income of the husband, the limited earning capacity of the wife, and the manner in which certain of the personal property was acquired, we cannot say that the trial court so abused its discretion that reversal is required.

For this court to reverse would be to substitute our judgment for that of the trial court. This the law does not permit. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

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

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    John George PAINE v. Rosa Nell PAINE.
    Civ. 4332.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1984.
    Marcus W. Reid of Reid & Thomas, Anni-ston, for appellant.
    James S. Hubbard, Anniston, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case. Because of the death of one of the husband’s attorneys, this appeal was not submitted for our decision until November 29, 1984.

The husband contends that his wife condoned his acts of adultery and that the trial court erred in granting the divorce upon that ground. His other issue is whether the award of periodic alimony to the wife constituted an abuse of discretion.

In viewing the record with the attendant presumptions that are accorded to the trial court’s final judgment, the following facts are revealed as being relevant to the present problem.

The parties were nineteen years of age when they married in 1958 and they were both forty-five when this case was tried in November 1983. Their three children are adults.

Both parties are employed by the Department of the Army. The husband’s gross monthly pay is around $2,036. After deducting therefrom his payroll deductions of $304, his monthly debt installments of $577, and his living expenses of $580, the husband still has a remainder of $575. The additional payment of the alimony as awarded of $250 monthly would leave the husband with approximately $325 each month of discretionary funds.

The wife grosses $600 bi-weekly, with a net of $241 after payroll deductions which include the payment of $282 upon her credit union debts. Her monthly payment of $330 upon her mobile home mortgage is not withheld from her paycheck. After that mortgage payment, the wife is left with only about $150 each month with which to meet her other living expenses. She testified that she needed $330 a month as alimony from the husband. The husband testified that, if he had to pay alimony, $100 monthly would be sufficient for her support.

The parties separated on four different occasions, once in 1963 and three times since 1980. Their separations since 1980 were caused by the husband’s affair with the same woman, which started in 1981. The parties would separate, remain apart for two or three weeks, and then reconcile. The husband testified that their final separation in June 1983 was caused by his seeing his lady friend. These parties have not lived together since that separation. Since that time the husband has lived with his paramour and was residing with her at the time of the divorce trial. He pays the rent, groceries, and utilities, which total about $427.50 of his itemized monthly expenses.

Cancer was detected in the wife in 1976. Four surgical procedures were performed upon her that year. She was then treated by radiation, which damaged her kidneys. In 1981 both of her cancerous breasts were removed. While she stated that her cancer is in remission at this time, the wife still experiences nausea, pain, and discomfort to the extent that she missed about twenty days from her work during the past year.

After an ore tenus contested trial, the final judgment of the circuit court divorced the parties on the grounds of the husband’s adultery and incompatibility of temperament of the parties. The husband was ordered to pay “$250.00 per month for life as periodic alimony” to the wife. Other provisions which are not pertinent to the issues were contained in the divorce judgment.

The husband first contends that because of the wife’s condonation of the husband’s indiscretions no divorce should have been granted upon the ground of adultery. The wife did condone known acts of adultery which occurred prior to their last reconciliation. However, there was no evidence of any forgiveness by the wife as to any of the husband’s admitted adulterous conduct which happened after their final separation in June 1983. We fail to find any evidence that she condoned in advance the committing of future acts of indiscretion by the husband. Indeed, the renewal or continuation of the same conduct by the husband with the same “other woman” generally revives the right of the condoning wife to rely upon the husband’s former unfaithfulness. Morgan v. Morgan, 402 So.2d 984, 988 (Ala.Civ.App.), cert. denied, 402 So.2d 990 (Ala.1981). The trial court did not err in granting the divorce upon the ground of adultery.

The husband also contends through able counsel that the trial court abused its discretion in awarding $250 per month as alimony to the wife.

As we construe it, the judgment as to alimony provides for periodic alimony and may be modified in the discretion of the trial court as to amount or duration if there is a material change in the circumstances of the parties.

Since the hearing was held ore tenus before the trial court, the final judgment is presumed to be correct and will not be disturbed on appeal unless it was palpably wrong. The award of alimony and the amount thereof fall within the ambit of the judicial discretion of the trial court and are reversible only for a clear abuse thereof. Pugh v. Pugh, 406 So.2d 966 (Ala.Civ.App.1981); Chernau v. Chernau, 396 So.2d 1061 (Ala.Civ.App.1981). We have considered all of the trial evidence. The testimony supports the findings of the trial court. The trial court was not palpably wrong and did not abuse its judicial discretion. The award of $250 per month as periodic alimony is upheld.

We affirm.

The wife's request for an attorney’s fee is granted in the sum of $500.

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.