text:
    Dan HARVELL, as Administrator of the Estate of Stanley Dan Harvell, deceased v. IRELAND ELECTRIC COMPANY, et al.
    82-832.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Francis H. Hare, Jr. and James J. Thompson, Jr. for Hare, Wynn, Newell & Newton, Birmingham, for appellant.
    Michael B. Maddox of Clark & Maddox, Birmingham, for appellees.
   FAULKNER, Justice.

This is a wrongful death case. On November 1, 1979, Stanley Dan Harvell died as a result of injuries that he received while employed by the Georgia-Pacific Corporation. Mr. Harvell was decapitated when he attempted to repair a “bark-shredder” that had malfunctioned.

On August 18, 1981, plaintiff Dan Har-vell, as administrator of the estate of Stanley Dan Harvell, filed suit against certain named and various fictitious defendants. When the original complaint was filed, plaintiff did not know, among others, the name of the general electrical contractor, or the identity of the entity responsible for installing the “bark-shredder.” In the caption of the original complaint, the plaintiff included, inter alia, a designation of the following fictitious defendant:

“L, * * * the general electrical contractors who were in charge of electrical work at the plant where plaintiffs intestate was working at the time of the accident made the basis of this suit.”

Also, the body of plaintiffs original complaint contained the following averments (emphasis added):

“1. Plaintiff avers that the defendants were negligent in the design or installation or manufacture or inspection of the shredder and premises where plaintiffs intestate was working at the time of his death.
“2. Plaintiff further avers that defendants were negligent in the design or installation or inspection or operation or manufacture, etc. of electrical components necessary for the operation of the equipment where plaintiffs intestate was working on the occasion of his death.
“3. Plaintiff avers that the defendants were negligent in providing plaintiffs intestate with a safe place to work. Plaintiff avers that defendants were negligent in failing to implement appropriate safety procedures with respect to the operation of the equipment where plaintiffs intestate was working at the time of the accident made the basis of this suit; and as a proximate consequence of the negligence of the the defendants, plaintiffs intestate was so injured that he died.
“4. The equipment and its component parts and related apparatus upon which plaintiffs intestate was working were dangerous and defective, and because of the condition of the equipment and related parts, defendants violated the Alabama [Extended] Manufacturer’s Liability Doctrine.
“5. Plaintiff further avers that defendants negligently failed to warn plaintiffs intestate of the dangerousness of the equipment or apparatus on and about which he was working at the time of his death; and as a proximate consequence of that negligence, plaintiff’s intestate was so injured that he died.”

Plaintiff’s interrogatories to one of the named defendants included the following question:

“Q6. State the correct legal designation and address of the general electrical contractor.”

Answers to these interrogatories were filed on February 5, 1982, and included the following response:

“Q6. Ireland Electric Company, Augusta, Ga.”

Five days later, on February 10, 1982, the plaintiff amended his complaint to substitute “IRELAND ELECTRIC COMPANY, Augusta, Georgia” in lieu of fictitious defendant “L”.

On March 10,1983, Ireland filed a motion for summary judgment, which asserted, in part:

“4. [Since] [t]here was no claim made against this defendant in the body of the complaint as pursuant to all of the recent cases dealing with fictitious defendant and substitution thereof, this defendant is entitled to judgment as a matter of law.”

The trial court entered a final order on April 27, 1983, according to A.R.Civ.P. 54(b), granting Ireland’s motion for summary judgment. The plaintiff proceeded to file his notice of appeal to this court.

The issue to be decided on appeal is as follows: Whether the use of the word “defendants” in the averments of plaintiff’s original complaint is sufficient to state a legal cause of action against the fictitious parties named in the caption of the complaint as “L_,” in accordance with A.R. Civ.P., Rule 9(h), so that the amendment to the complaint naming Ireland Electric Company as a defendant will relate back to the date of filing of the original complaint in accordance with A.R.Civ.P., Rule 15(c). We are of the opinion that it is sufficient.

The caption of plaintiffs complaint names every known defendant and describes several fictitious defendants in accordance with A.R.Civ.P., Rule 9(h). Plaintiff then proceeds to allege several causes of action against “the defendants.” From the structure of the complaint, it is obvious that plaintiff intended to, and did, assert each and every cause of action against each and every defendant, named or fictitious.

Ireland contends that the averment in the body of the original complaint charging the “defendants” does not constitute an adequate reference to a fictitious defendant. Ireland insists that in cases against fictitious parties, the plaintiff must do something which is not necessary in cases against named defendants; viz., the plaintiff must specifically repeat in the body of the original complaint the names and description of the fictitious defendants designated in the caption of the complaint in order to state a cause of action against those fictitious defendants. Such a practice is not required by, and was not contemplated by, the Alabama Rules of Civil Procedure. It is not consistent with the intent and purpose of A.R.Civ.P., Rule 9(h).

The proper test is not the degree of particularity with which fictitious parties are described in the body of the complaint, but whether the complaint alleges any wrongful conduct by the fictitious party sufficient to constitute a cause of action against it. Columbia Engineering International v. Espey, 429 So.2d 955, 959 (Ala.1983).

Furthermore, this court has stated:

“Any count in a complaint which would state a cause of action under our liberal notice pleading rules would also state a cause of action against a fictitious party. One need not state with more particularity a cause of action against an unknown party as compared to a named party — the test is the same.”

Columbia Engineering, supra, at 960. See also Moorer v. Doster Construction Company, Inc., 442 So.2d 97 (Ala.1983), and Denney v. Serio, 446 So.2d 7 (Ala.1984).

A different legal issue is presented by those cases in which the plaintiff had to amend his complaint to aver additional facts and/or new and different theories of liability which were not contained in the body of the original complaint in order to state a good cause of action against the fictitious defendant. See, e.g., Columbia Engineering, supra, Fowlkes v. Liberty Mutual Insurance Company, 392 So.2d 803 (Ala.1980); Minton v. Whisenant, 402 So.2d 971 (Ala.1981); Walden v. Mineral Equipment Co., 406 So.2d 385 (Ala.1981).

Ireland has not questioned the sufficiency of the causes of action stated against the named defendants, and the court is of the opinion that the use of the phrase "the defendants” in each paragraph of plaintiffs complaint is sufficient to incorporate by reference all the named defendants and all the fictitious defendants who are described in the caption of the complaint. Plaintiff was not required to repeat the description of the fictitious party in the body of the complaint in order to state a cause of action against it in this case.

Since Ireland does not contend that it was improperly substituted as the entity described as fictitious party “L,” and for the foregoing reasons, we hold that the complaint sufficiently states a cause of action against Ireland. Thus, summary judgment was improper in this case. The decision of the trial court is hereby reversed and the case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and ALMON, SHORES and ADAMS, JJ., concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    R.E. PILKERTON ELECTRIC, INC. and Robert Earl Pilkerton v. WESTINGHOUSE ELECTRIC SUPPLY COMPANY, INC.
    82-869.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Harry Asman, Birmingham, for appellants.
    M. Wayne Wheeler, Birmingham, for ap-pellee.
   EMBRY, Justice.

This appeal by R.E. Pilkerton Electric, Inc., and Robert Earl Pilkerton is from the following decree:

“This matter coming on to be heard on the plaintiff’s Creditors Bill for Relief and the General Denial of the defendants, and the Court having considered the oral testimony and briefs of the parties, the Court is of the opinion that relief is due to be granted to the plaintiff.
“In examination of the briefs of the parties, the Court finds that the legal theories of ALTER-EGO as set out in C.E. Development Co. v. Kitchens, 288 Ala. 660, 264 So.2d 510 (1972) and INSTRUMENTALITY, as set out in Krivo v. National Distillers, 483 F.2d 1098 (5th Cir.1973), are applicable in this case. The Court finds from the evidence:
“1. That the plaintiff was a lawful and just creditor of the defendant, Maintenance Contractors, Inc., and did reduce the debt to a judgment. That execution was duly issued and returned by the Sheriff ‘no property found.’
“2. That R.E. Pilkerton, with knowledge of the debt of the plaintiff, did allow Maintenance Contractors, Inc. by and through his dominion and control, to cease to operate. Further, said R.E. Pilkerton, by his direction and control did establish a new corporation twelve days later. That the purpose, intent and/or direction of R.E. Pilkerton was to use his control of both corporations to hinder, dely, defraud and avoid the lawful claims of the plaintiff.
“3. The Court finds that the above defendant corporations were the mere instrumentaility of R.E. Pilkerton and/or became the alter-ego of said defendant.
“It is, therefore, ORDERED, ADJUDGED AND DECREED as follows:
“A. That the plaintiff have and recover of the defendants, R.E. Pilkerton, individually and R.E. Pilkerton, Inc., the sum of $13,690.48, plus interest of $1369.00, for a total judgment of $15,059.48.
“B. Costs are taxed to the defendants, for which let execution issue.”

Issues

(1) Did the trial court err in imputing liability to Robert Earl Pilkerton for a debt incurred by Maintenance Contractors, Inc.?
(2) Did the trial court err in imputing liability to R.E. Pilkerton Electric, Inc., for a debt incurred by Maintenance Contractors, Inc.?

We answer both issues in the negative and affirm.

The trial court’s conclusions on issues of fact were made from conflicting evidence presented ore tenus and are supported by ample credible evidence of record. Its application of the law to those facts is correct. The judgment below, therefore, is due to be and is hereby affirmed. Cherokee Ins. Co. v. Frazier, 406 So.2d 881, 882 (Ala.1981).

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: HOLMES, Judge.

text:
    Jacqueline LAMBERT v. Jimmy Claude LAMBERT.
    Civ. 3871.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1983.

      Roderick Beddow, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellant.
    Ralph L. Armstrong, Bessemer, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The parties were divorced by the trial court after an ore tenus hearing. The wife was awarded custody of the only minor child and the husband was ordered to pay child support in the amount of $400 each month. The trial court made a division of property. No award of periodic alimony was made to the wife.

The wife through able counsel appeals, contending that the trial court erred in failing to award periodic alimony and in the division of property.

Viewing the record with the attendant presumptions, the following is revealed:

The parties were married one day short of twenty years. They had one child during the marriage who was seventeen at the time of the trial. The husband has a high school education and has been employed as a laborer at several businesses during the course of the marriage. On occasions during the marriage the husband was unemployed. The husband testified that he earned approximately $18,000 in 1981 and up until time of the trial in 1982 he had grossed approximately $24,000 as a coal miner.

For approximately eighteen years of the marriage up until the present, the wife has worked as a school teacher in Jefferson County. She has a master’s degree in education. In 1981, the wife earned approximately $17,000 gross; she testified that she would earn $19,000 in 1982. She also has a retirement plan, and insurance is provided for her by the board of education.

The husband committed some acts of adultery during the marriage. The wife also testified that the husband’s drinking contributed to the breakdown of their marriage.

After an ore tenus hearing, the trial court divorced the parties. In the division of property the trial court awarded the wife exclusive use of the house until the child reaches majority in 1984 or the wife remarries. Thereafter, the house is to be sold and the proceeds divided or the wife may buy out the husband’s interest for 45% of the appraised value. The wife was awarded two automobiles and the husband received two trucks. The parties’ motor home was ordered sold and the proceeds applied to the child’s college education or divided between the parties if the child does not go to college. Cattle owned by the parties were ordered sold and the proceeds divided after the wife was repaid for the expense of maintaining the cattle. The furnishings were awarded to the wife.

As indicated above, the husband was ordered to pay $400 a month child support until 1984 when the child reaches majority. The husband was also required to maintain hospital and medical insurance for the child. The wife was awarded an attorney’s fee of $2,300. Additionally, the wife had withdrawn all of the money from the parties’ joint banking accounts before the divorce.

The dispositive issues on appeal are whether the trial court erred in the division of property and in the failure to award periodic alimony.

The firmly established rule on appeal from a decree of the trial court rendered after an ore tenus hearing is that such a decree is presumed correct and will be set aside only if it is unsupported by any credible evidence and is plainly wrong. Boggan v. Boggan, 398 So.2d 710 (Ala.Civ.App.1981). Furthermore, the division of property is within the sound discretion of the trial court and each case must stand on its facts. Property division does not have to be equal. Boggan v. Boggan, 398 So.2d 710 (Ala.Civ.App.1981). The decision to award periodic alimony is likewise within the sound judicial discretion of the trial court and its decision will not be disturbed on appeal except where such discretion was plainly and palpably abused. Hilton v. Hilton, 385 So.2d 640 (Ala.Civ.App.1980).

In the present case we find no abuse of discretion requiring reversal.

Concerning the division of property, the court ordered an almost equal division with the wife receiving slightly more in that she received all of the furniture and furnishings in the residence. Everything else was either ordered sold and the proceeds divided or, as in the case of the vehicles, split between the parties. Hence no error.

In regard to the failure of the trial court to award alimony, we cannot say that such decision was an abuse of discretion. The wife’s age, forty years, the fact that she has a college education and a very good job with certain benefits, such as retirement, compared with the husband’s high school education and the economic instability experienced by him in the past and by unskilled laborers generally, are all factors that support the trial court’s actions. While it is true that the husband was guilty of some marital misconduct, in view of the equitable property division and the factors referred to above, this court is not in the position to say that the trial court erred in refusing to award periodic alimony. To do so would be to substitute our judgment for that of the trial court. This the law does not allow. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

The wife has requested an attorney’s fee on appeal. That request is hereby denied.

This case is due to be and is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    (In the Matter of Colby Allen RIVERA, a child under the age of eighteen years). Rhonda Gayle Beard RIVERA v. STATE of Alabama.
    Civ. 3903.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1983.

      Richard W. Tingle, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp, Asst. Atty. Gen., Montgomery and James D. Chadbourne, Huntsville, for Madison County Dept, of Pensions and Security.
    Phillip B. Price, Huntsville, Guardian ad Litem for Colby Allen Rivera.
   BRADLEY, Judge.

This is a parental rights termination case.

Colby Allen Rivera, born September 13, 1979, is the illegitimate son of Rhonda Gayle Beard Rivera. In August 1980 the child was placed in the temporary custody of the Madison County Department of Pensions and Security.

On August 19, 1980 DPS and the mother entered into an agreement whereby the child would be returned to her physical custody in six months provided she met certain conditions. The mother abided by the terms of the agreement and on February 13, 1981 the court ordered the child to be returned to her, with DPS to retain legal custody. Under the decree the mother was required to adequately care for the child, maintain a good employment record and suitable living and child care arrangements, to refrain from narcotics use, and to cooperate with and keep in touch with DPS or else she would lose custody of the child.

In June 1981 the mother violated the terms of the order and in November 1981 was arrested for the possession and sale of drugs and was later found guilty. DPS regained physical custody on December 10, 1981 and placed the child in a foster home.

In April 1983 DPS petitioned for permanent custody of the child in order to place him for adoption and to terminate all legal rights of the parents. The mother filed a counterpetition asking that physical custody be returned to her. A guardian ad litem was appointed to represent the interests of the child.

An ore tenus hearing was held on June 17, 1983. The court found Colby to be a “dependent child” of the state and entered an order terminating all parental rights and granting custody of the child to DPS with authorization to place him for adoption. From this decree the mother appeals.

The mother argues that the trial court erred in finding her an “unfit” custodian and in terminating her parental rights, and that DPS failed to exhaust all reasonable means of placing the child with family members or relatives before placing him for adoption.

“Where the dispute over custody of a child is between the child’s natural parent and a party who is not the child’s natural parent, the natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interests and welfare of the child are controlling in child custody cases. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).”

Ely v. Casteel, 341 So.2d 730 (Ala.Civ.App.1977).

In a termination of parental rights case, the ore tenus rule applies. This means that the judgment of the trial court is given every favorable presumption and will not be overturned unless it is palpably wrong. Hudgins v. State, 418 So.2d 913 (Ala.Civ.App.1982).

Before a trial court can terminate a parent’s right to custody of its child, there must be clear and convincing evidence before the court that it would not be in the child’s best interests to be in the natural parent’s custody. Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ.App.1982).

The evidence shows that the mother is twenty-seven years old, has been married and divorced, and has a nine year old daughter from that marriage. The child lives with the father.

The evidence further shows that Colby is three years of age and has spent at least half his life in foster care. The child’s father is unknown. The mother believes it could be one of two men with whom she was having sexual relations at the time she became pregnant.

It is without dispute that the mother had a severe drug problem. She had been taking drugs since 1974 and was smoking marijuana during the time she was pregnant with Colby. She had also used various other type drugs. She supported herself during her pregnancy with Colby by selling dope for her brother-in-law. In August 1980 there was an incident at a motel where the mother, her sister, Colby, and her sister’s twin daughters were in a room with two men and two women using drugs. When the social worker arrived, she saw all three children lying on the floor; one wrapped in a towel, one in a pillow case, and one wearing a diaper. Colby was eleven months old at the time and the other children were just a few months old. The milk in the baby bottles had soured and there were no clean diapers and no food in the room. All of the children’s diapers were dirty. The mother was sitting on the floor, with her head bent over, hair in her face. She could not even say her name when asked. When she tried to move around, she staggered and fell. In late 1981 the mother was arrested on four counts of possession and sale of dilaudid, a controlled substance. She pleaded guilty to two of the charges, was convicted, served a portion of her thirty month sentence in jail, then some on the work release program, and is on probation until 1984.

The mother insists that her drug problems are behind her and that she has not used drugs since before her arrest. It was disclosed that she had completed a program recommended by the Huntsville-Madison County Mental Health Center and a job training program at the vocational rehabilitation service center. Her probation officer testified that she is one of his better clients, is punctual, keeps him informed, and is doing well under supervision.

Although it appears that the mother has her drug problem under control at the moment, there is other evidence to support the trial court’s finding that the best interests of the child would not be served by placing its custody with the mother.

In 1976 the mother was arrested for petty larceny and served a suspended sentence. And, as found by the trial court, the mother has never been able to hold a job for any length of time. She recently lost her job at Owens-Corning, where she was making $7.37 an hour, because of her repeated lateness to work. She also moves frequently, always living with relatives and friends, and has never lived in any one place long enough to establish a real home. A few times she was living at a motel.

In addition, the mother ignored the provisions of the court order and agreement she entered into with DPS by not keeping DPS informed of her whereabouts and not maintaining regular contact with them. She actively concealed her son from DPS for several months for fear they would take him away from her. On one occasion, right after custody was returned to her, Colby had a cigarette burn the size of a dime underneath his eye. The mother said it was an accident. In March 1981 Colby was admitted to the hospital for severe dehydration and diarrhea. When the mother was in the caseworker’s office on March 24, 1981, the child had a mark like a “W” on his chin, which was red and inflamed. The mother was not sure how Colby got the injury, but thought he might have gotten it by running into a hot water heater.

Although it appears that the mother loves her son, Colby, she has contributed nothing to his support while he has been in DPS custody.

The evidence supports the trial court’s finding that the mother’s parental rights be terminated and that custody of the child be awarded to DPS. See State Department of Pensions & Security v. Hall, 57 Ala.App. 290, 328 So.2d 295 (Ala.Civ.App.1976); 59 Am.Jur.2d Parent and Child § 39 (1971).

The mother also contends that DPS did not exhaust all reasonable means of placing Colby’s custody with relatives rather than DPS and ultimately with strangers. We disagree.

DPS looked first to the child’s natural parents for placement and next to his relatives. However, the evidence shows that DPS was unable to find a suitable relative to take custody of the child. Neither of the alleged fathers has shown any real interest in Colby or even claims to be his parent. One of the alleged fathers is married, has three children, and previously served time for a drug violation. Neither the mother’s aunt nor grandmother wants Colby, and although one of her sisters expressed an interest in providing for Colby, she does not have the financial resources to adequately care for him. Another sister is not a suitable custodian. Still another sister has expressed a desire to have Colby’s custody, but she and her husband have been married only a short time, have a new baby, and are on a government subsidized milk program and food stamps. She has a six year old son by a previous marriage who is being raised by her ex-husband. Her husband’s job status is uncertain at this time.

It thus appears that all the relatives are either too old, do not want Colby, or are unable to care for him properly. And it would not be in the child’s best interests to return him to his mother’s custody. Therefore, the trial court properly terminated the mother’s parental rights and directed DPS to find the child a suitable home.

AFFIRMED.

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


text:
    Patricia Ann Oden NAYLOR v. Lester ODEN and Carol Oden.
    Civ. 3923.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1983.

      Charles A. McGee, Fort Payne, for appellant.
    Terry Gillis of Kellett & Gillis, Fort Payne, for appellees.
   HOLMES, Judge.

This is a domestic relations case concerning visitation privileges to the mother of an eight-year-old child.

The mother appeals from the trial court’s actions regarding visitation and we affirm.

The dispositive issue on appeal is whether the trial court so abused its discretion in the award of visitation as to require reversal. As indicated, we find no such abuse of discretion requiring reversal and affirm.

This is the second time this case has been appealed to this court. Interested parties may wish to refer to Naylor v. Oden, 415 So.2d 1118 (Ala.Civ.App.1982).

The following facts without detail are sufficient for a resolution of this appeal.

The child has been in the custody of her paternal uncle and aunt by virtue of a court order most of her life. The mother had visitation privileges of three hours every other month at the home of the uncle and aunt.

Sometime prior to the first appeal, the uncle and aunt petitioned to terminate the mother’s visitation completely. After an ore tenus hearing, the trial court did terminate the mother’s privileges. This court on appeal reversed that action. This court stated that the case was reversed for a proper determination of the mother’s visitation rights. Again, we refer interested parties to our prior opinion, Naylor v. Oden, 415 So.2d 1118 (Ala.Civ.App.1982).

On remand, again without detailing the facts and circumstances, the trial court ultimately granted the mother visitation on every third Friday of each month. This visitation was to be accomplished at the local office of the Department of Pensions and Security and was to be for a period of two hours’ duration. Additionally, the mother was granted visitation on three certain holidays. As indicated above, the mother through able counsel appeals, contending that the visitation is too restrictive.

We particularly note that the present visitation privileges are in fact more liberal than the visitation exercised prior to the termination proceedings.

The law is clear that the trial court is accorded much discretion in its judgment concerning visitation. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980). Under the ore tenus rule, our review of the trial court’s order is controlled by the principle that this court will not substitute its judgment for that of the trial court and will reverse only where the evidence shows the trial court to have been plainly and palpably wrong and unjust. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980).

In the instant case, where there is evidence that supports the trial court’s actions, there was evidence that the mother’s visitation adversely affected the child emotionally. There was also evidence that the mother did not adequately care for the child in the past and that, presently, there is some question as to her child by another marriage receiving adequate care. Additionally, there was evidence that certain relatives of the wife and her present husband pose a problem to the well-being of the child should the mother have unsupervised visitation. Furthermore, and most pertinently, the present visitation, as mentioned previously, is more liberal than that previously granted.

Although there is conflict in the evidence, we cannot say that the trial court erred to reversal. For this court to so find would be to substitute our judgment for that of the trial court. This, by law, we cannot do. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

This case is due to be and is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Larry Wayne KITE v. Patti M. KITE.
    Civ. 3971.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1983.

      Sidney Gene Landreau of Faulk & Lan-dreau, Phenix City, for appellant.
    J. Pelham Ferrell of Ferrell, Davenport & McKoon, Phenix City, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from an order denying appellant’s petition for sale and division of jointly held property and ordering him to convey his property interest to appellee.

Appellant, Larry Kite, and appellee, Patti M. Kite, were married March 29, 1963. They were divorced in April 1981. At the time of the divorce they had two minor sons.

In August 1965 Rosa P. Metcalfe, appel-lee’s mother, deeded a piece of property (marital property) adjoining her house and lot in Pittsview, Alabama, to her daughter Patti and son-in-law Larry. Larry and Patti then obtained a loan from the Farmers Home Administration (FHA) which they used to build a residence on the lot Rosa had conveyed to them.

In 1976 Larry and Patti sought a second mortgage on their marital residence in order to enlarge their home. At that time First Federal Savings and Loan Association of Russell County (First Federal), a lending institution, did not accept second mortgages. First Federal would not accept the marital residence as collateral without refinancing the FHA loan so that it could take a first mortgage.

Rosa agreed to put up her house and property as collateral for the loan. Since First Federal required that Rosa’s property be mortgaged in all three names, she deeded the property to herself, Larry and Patti, jointly, with the right of survivorship. The property was then used as a security on the mortgage.

During the divorce proceedings between Larry and Patti, Rosa who was a party thereto, obtained a lien on the marital residence to secure payment of the mortgage indebtedness incurred on her home in 1976.

Approximately one year after the divorce Rosa died. Subsequent thereto, Larry filed a petition against Patti for sale and division of her mother’s home. Patti counterclaimed asking that the deed executed by Rosa be declared null and void. In July 1983 the trial court ruled in favor of Patti, denying Larry’s claim and ordering him to convey his property interest to Patti. Larry appeals.

The basic issue on appeal is whether the trial court erred in failing to order a division and sale of the property, but ordering Larry to convey title to Patti. We affirm.

This case was heard ore tenus; therefore, the trial court’s findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom unless plainly and palpably wrong and unjust. Mac Pon Co. v. Vinsant Painting & Decorating Co., 423 So.2d 216 (Ala.1982).

Larry argues that the trial court erred in the findings upon which the final order was based: (1) that a fiduciary relationship existed between himself and Rosa, (2) that Rosa was easily influenced, and (3) that there was a total lack of consideration.

Larry states that he is unable to locate any Alabama case law holding that absent any other evidence a confidential relationship exists between a mother-in-law and a son-in-law. Such a technical or formal relationship is not required for equity courts to find a fiduciary relationship; instead,

“[T]hey apply the principles to all cases in which confidence is reposed by one party in another, and the trust or confidence is accepted under circumstances which show that it was founded on intimate personal and business relations existing between the parties which gave the one superiority over the other, and ... the burden of proving that the transaction was fair and righteous is on the one receiving or acquiring the benefit.”

Cannon v. Gilmer, 135 Ala. 302, 304-305, 33 So. 659 (1903).

Evidence was presented tending to show that Rosa trusted and was close to both Patti and Larry. It was only in the last few years prior to her death that Rosa’s relationship with Larry began to deteriorate due to his excessive drinking. Rosa gave Larry and Patti a piece of property adjoining her home upon which to build a home. At one time Larry and Patti boarded with Rosa. Larry and Patti helped Rosa to care for Rosa’s aged father. Later Rosa undisputedly executed the deed to her home, under which Larry claims a half interest, solely for the purpose of providing security for a loan to her daughter and son-in-law. Such action indicates the familial relationship of love and trust.

Larry also claims the court erred in finding Rosa was easily influenced. A loan officer of First Federal testified that she explained to Rosa that the bank would require her house be put in her name as well as Larry’s and Patti’s before the loan could be approved. It is understandable that Rosa would be easily influenced to comply in order to help her only child. The loan officer further testified that Rosa said she did not mind putting up her property as collateral because it would eventually be Patti’s anyway.

Larry further contends the court erred in considering the lack of consideration as grounds for voiding the conveyance. He is correct that failure of consideration is insufficient grounds for cancellation of an otherwise valid deed. Williamson v. Matthews, 379 So.2d 1245 (Ala.1980). Yet, the court was not unreasonable in finding that the total lack of consideration combined with a fiduciary relationship and the circumstances existing at the time, made it unjust and inequitable to allow Larry to retain an interest in the property.

Though the trial court did not specifically speak in terms of a constructive trust, that is, in effect, what the decision imposes. If the ultimate decision of a trial court is correct, the judgment will be upheld even if for reasons other than those given by the trial court. See, Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (Ala.1976).

A constructive trust is a creature of equity which prevents unjust enrichment. “It will be applied when property has been acquired by fraud or where it would not be equitable to allow it to be retained by him who holds it.” Seals v. Seals, 423 So.2d 222, 224 (Ala.1982). (Emphasis supplied.) A constructive trust enables equity courts to “compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs.” Putnam v. Putnam, 274 Ala. 472, 475, 150 So.2d 209, 212-213 (1963).

Evidence was presented whereby the trial court could reasonably decide that to allow Larry to retain an interest in the property would be to unjustly enrich him.

Larry agreed or acknowledged by or through the ore tenus stipulation entered on his behalf by his attorney that Rosa was the owner of her home or property after the mortgage on the same was executed to First Federal. Patti testified that on several occasions subsequent to the execution of the mortgage Larry said the property should be reconveyed to Rosa and agreed to do so. He has not made any payments on the mortgage. Rosa was the sole occupant of her home and paid all the taxes and insurance from the date of the mortgage until her death in 1982.

For Larry to retain the property interest he claims would be unjust and inequitable. Therefore, we affirm the trial court’s decision.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Stanley BRAND, Sr. v. Ella Mae BRAND.
    Civ. 3900.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    George M. Higginbotham, Bessemer, for appellant.
    Anthony D. Snable, Pleasant Grove, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

After an ore tenus contested trial, a finding of facts was made by the trial court in the final judgment. We primarily include them as the facts of the case.

The husband is sixty-six years of age. He has not worked since 1972 because of a back injury. Otherwise, he is apparently in good health. His sole employment has been as a manual laborer. The total monthly income of the husband is $706.50, which includes social security benefits of $529.

The wife is fifty-seven years of age. She is a high school graduate and completed one year of college. Except for her high blood pressure, she is in good health. Although presently unemployed, she recently worked as a delicatessen employee and as a private cook.

The parties were married in 1968. No children were born of this marriage. Each party has children by previous marriages. They lived together until 1982 when conflicts over church, bingo and other matters caused their separation. Both parties testified that they are incompatible.

When the parties married, the husband owned a home. He completed its construction in 1955. After 1968 the following improvements were made to the house and lot: a one-half bath, awnings, a carport, a concrete patio, a utility shed and a chain link fence. The residence has a market value of $40,000.

Other than household items and furniture, the assets accumulated during the marriage, and their value, included: a 1965 Buick automobile-$300, a 1977 Chevrolet truck-$3,000, a boat and motor-$l,000, and an unimproved lot in Jonesboro-$1,000.

The trial court divorced the parties for incompatibility, with a finding that each party was equally at fault in causing the conditions leading to that ground for the divorce. The wife was awarded the unimproved lot, furniture for a bedroom, living room and dining room, and $12,000 as alimony in gross. The husband appeals and, through able counsel, contends that the trial court abused its discretion in the alimony in gross award.

Where a trial court hears and observes the parties as they testify, its finding of fact is presumed to be correct and will not be reversed upon an appeal unless it is not supported by the evidence, or unless it is palpably wrong. Puckett v. Puckett, 437 So.2d 1298 (Ala.Civ.App.1983). No mathematical formula may be applied in alimony in gross matters, for each case stands upon its own peculiar and unique facts. Hughes v. Hughes, 361 So.2d 119 (Ala.Civ.App.1978). For that reason, the award and the amount of alimony in gross is largely a matter for the exercise of the judicial discretion of the trial court and it will not be altered or set aside upon an appeal in the absence of a palpable abuse of that discretion. Hinds v. Hinds, 415 So.2d 1122 (Ala.Civ.App.1982); Puckett v. Puckett, supra; Hughes v. Hughes, supra.

In this case, there was competent evidence by one or both of the parties which fully upheld the findings of the trial court. Under those facts, the award of $12,000 to the wife as alimony in gross was not a palpable abuse of the discretion of the trial court. We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Elbert M. JOHNSON v. Margaret JOHNSON.
    Civ. 3909.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.

      Lee Clyde Traylor, Fort Payne, for appellant.
    Charles A. McGee, Fort Payne, for appel-lee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this appeal were divorced the first time in September 1981. They remarried in March 1982 and were separated in May 1982. The wife filed for a divorce in September 1982 and the parties were divorced again in May 1983.

In the 1983 decree the court awarded the wife custody of the two minor children and gave her $250 per month as child support and alimony, with the $250 to be treated as alimony after the youngest child reaches majority. The court also awarded the wife $2,000 as a property settlement; gave her an automobile and various pieces of household furniture and furnishings.

After the husband’s motion for a new trial was overruled, he appealed to this court. On appeal the husband urges reversal of the decree because (1) the $2,000 given to the wife as a property settlement was improper because the only property available for distribution was a house the husband was buying on a conditional sales contract, and (2) the trial court erred in awarding the wife $250 as alimony when no such relief was requested or proved.

The husband argues that the only property available for distribution as a property settlement is a house he is buying on a conditional sales contract. He says he does not have legal title to it and, therefore, the court had no authority to settle the interests, if any, therein.

According to the husband he has a written contract to buy a house for $19,000. He traded a mobile home to the seller, which is mortgaged to Central Bank, as a down payment. He owes a little over $2,000 on the note on the mobile home and about $7,000 on the house. When the note on the mobile home is paid and the balance due on the house is paid, the husband will receive title to the house.

Based on these facts we find that the husband had such an interest in the house that would authorize the trial court to make a property settlement between the husband and wife. See Qualls v. Union Central Life Insurance Co., 242 Ala. 619, 7 So.2d 558 (1942); Harris v. McCarty, 218 Ala. 195, 118 So. 379 (1928).

The husband’s other contention is that the trial court erred in awarding the wife alimony when she did not request it.

Although the wife did not specifically request alimony in her complaint, she did ask for one-half of her husband’s monthly military retirement pay in her amended complaint. It should be further noted that the wife in her original complaint asked for “such other relief [as] may seem just and proper.” Implicit in such request is whether the evidence would support an award of additional relief.

The evidence does show that alimony was an issue before the trial court and was presented to the court without objection. Under these circumstances the complaint is deemed amended to conform to the proof. Rules 15(b) and 54(c), Alabama Rules of Civil Procedure.

We said in Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (Ala.Civ.App.1975), that:

“The parties presented extensive evidence of the financial condition of the parties, particularly of the defendant. The issues presented by the proof were clearly related to alimony ..., though there was no specific evidence of the requirements of the plaintiff ... for alimony .... We find sufficient inferential evidence to support the award of the court.”

Likewise, in the case at bar, there was evidence of the length of the marriage, number of children, health of the parties, relative financial situations of the parties, and their prospects for the future. Moreover, counsel for husband stated during the trial that the husband was asking the court to determine the wife’s right to alimony under the terms of the second marriage.

Also, in his motion for new trial, the husband did not question the alleged failure of the wife to request alimony; he questioned only the award of alimony to her. We find no error in this aspect of the trial court’s decree.

The wife’s request for damages for a frivolous appeal is denied. However, the wife’s request for an award of attorney’s fee on appeal is granted in the amount of $350.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P.J., concurs in the result.


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    Helen P. McRIGHT v. Edward McRIGHT, Jr.
    Civ. 3934.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.

      Gordon F. Bailey, Jr. of Bolt, Isom, Jackson & Bailey, Anniston, for appellant.
    H. Neil Taylor, Russellville, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

Helen P. McRight and Edward McRight, Jr. were divorced on August 6, 1981. Mrs. McRight was granted custody of the couple’s minor daughter, Leigh Ann McRight, and Mr. McRight was given reasonable visitation privileges. Subsequently, Mrs. McRight, who lived in Tuscaloosa, Alabama, at the time of the divorce, moved to Casselberry, Florida, taking the child with her. As a result, Mr. McRight petitioned for modification of the visitation privileges awarded him, alleging that Mrs. MeRight’s relocation justified the modification. Thereafter, Mrs. McRight and Leigh Ann traveled to Okinawa, Japan, to be with Mrs. McRight’s mother, who had suffered a stroke. Mr. McRight, consequently, amended his petition seeking custody and an order pendente lite to prevent the child’s removal from the United States. The pen-dente lite was never acted upon, but after an ore tenus hearing, the trial court did grant Mr. McRight custody. Mrs. McRight appeals here, asserting that there was insufficient evidence to support the order transferring custody.

We recognize in all cases the presumption of correctness of the finding of the trial court, when evidence in a custody matter is presented ore tenus. We are also aware that this presumption is overcome by the absence of material evidence supporting such finding. Sanders v. Sanders, 425 So.2d 476 (Ala.Civ.App.1983). It is the law that in cases where a change in custody is sought, the paramount consideration of the courts is the best interest and welfare of the minor child. Sanders, supra at 479. We recently stated in Sain v. Sain, 426 So.2d 853 (Ala.Civ.App.1983), that before a change in custody may be granted, there must be evidence of a material change in circumstances, occurring since the last judgment, so affecting the best interest and welfare of the child as to reveal an obvious and overwhelming necessity for change. The burden of proving such a change in circumstances is on the party seeking modification. Sain, supra at 854.

Although a factor to be considered, a change in the custodial parent’s residence does not, of necessity, justify a change in custody. Robertson v. Robertson, 415 So.2d 1085 (Ala.Civ.App.), cert. denied, 415 So.2d 1089 (Ala.1982). This rule applies even where the custodial parent relocates outside the United States. Clark v. Clark, 46 Ala.App. 432, 243 So.2d 517 (1970). A decree fixing custody of a minor child is conclusive of the interest of the child and the rights of the parents, so long as the status of the parties at the time of the decree remains without material change. Sain, supra.

The record before us is devoid of any evidence indicating an adverse effect upon Leigh Ann because of her mother's relocation to Florida or subsequent sojourn in Okinawa. To the contrary, all indications are that she is well provided and cared for there. The argument that because of the far distance, the father will be unable to visit his child, while unfortunate, would apply equally to the mother if custody were removed from her. It makes no difference, but it may be noted that the mother, though one-half Japanese, was educated at the University of Alabama. There is not the slightest evidence that the mother and her parents, in whose home she and Leigh Ann now live, are anything other than highly educated, cultured and loving parent and grandparents.

We find the judgment of the trial court removing custody of Leigh Ann from her mother and granting her custody to her father unsupported by evidence of material change of circumstances affecting her best interest or welfare. Such judgment is therefore arbitrary and an abuse of judicial discretion. That judgment is therefore reversed and set aside. The case is remanded for entry of judgment in accord with this decision.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    David L. HALL v. Margaret Hall VARDAMAN.
    Civ. 3951.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Thomas E. Dan of Burns, Shumaker & Davis, Gadsden, for appellant.
    H. Merrill Vardaman of Vardaman & Vardaman, Anniston, for appellee.
   WRIGHT, Presiding Judge.

This is a child support modification case.

Appellant David L. Hall and appellee Margaret Hall Vardaman were divorced by final decree of February 28, 1975. Appel-lee was given custody of the parties’ minor daughter, Jana. Appellant was directed to pay $35 per week in child support.

In April 1983, in response to appellee’s petition, the trial court entered an order increasing support payments from $35 to $60 per week, beginning in May 1983. Appellant filed a motion for reconsideration which the trial court subsequently denied. Appellant appeals.

A detailed recitation of the facts and arguments raised in brief are unnecessary. This case may be summarily resolved on the basis of the ore tenus rule. We “presume correct the findings of the trial court based upon competent evidence when the evidence is presented ore tenus. Such findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust.” Mac Pon Co. v. Vinsant Painting & Decorating Co., 423 So.2d 216 (Ala.1982). The further rule of judicial discretion in all awards of child support is conclusive of this appeal. We find no abuse of such discretion. Taylor v. Taylor, 412 So.2d 1231 (Ala.Civ.App.1981).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Richard Wayne BALLARD v. Jiemjit BALLARD.
    Civ. 3955.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Richard W. Ballard, pro se.
    No brief for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband filed for divorce in the Circuit Court of Dale County, specifically requesting that he be awarded custody of the couple’s six-year-old daughter. The wife moved to dismiss the husband’s petition, contending that the Alabama court lacked jurisdiction under the Uniform Child Custody Jurisdiction Act, §§ 30-3-20 through -44, Ala.Code (1975), or alternatively, that under the statute Florida courts provided a more appropriate forum, see id. at § 30-3-27.

After considering testimony and other evidence on the jurisdiction issue, the trial court granted the wife’s motion, dismissing the petition and assessing attorney fees and court costs against the husband.

The husband appeals and we affirm.

The dispositive issue on appeal is whether the evidence, when considered in light of § 30-3-27, supports the trial court’s action.

There is evidence in the record which reveals the following: The parties were married in Thailand in 1972. The husband is an American citizen, the wife a Thai national. In 1977, when the couple was stationed in West Germany, the wife gave birth to the couple’s only child, a daughter. Later, in 1980, when the husband was stationed in the Washington, D.C., area, the wife expressed a desire to leave the husband. She took the daughter and selected a house in Fort Walton Beach, Florida, so that she might be near Eglin Air Force Base, where her sister’s husband was stationed. The husband testified that he later assumed the loan on the Florida home, with the intent of “provid[ing] them a good place to live while I could work at reconciling the marriage.” In January of 1982 the husband was assigned to Fort Rucker, an army installation in Alabama. There is no indication in the record that the husband had any prior connection with the State of Alabama before his being stationed at Fort Rucker. He attempted to convince his wife to move to Fort Rucker to join him, but she refused. Thereafter, on weekends the husband drove to Fort Walton to attempt to maintain a close relationship with his daughter and to try to reconcile the failing marriage.

On June 12, 1983, after visiting in Florida, the husband returned to Fort Rucker with the daughter. At the hearing on the wife’s motion, the husband testified that he brought the daughter back “for her well-being” and because he feared she might be taken out of the country. When asked if his wife consented to the child’s being moved, he answered, “Eventually she did....” However, the wife testified in her affidavit that the child was removed against her will. On June 21, 1983, the husband filed the instant action. The following day, the wife filed a divorce petition, also seeking custody, in the Circuit Court of Okaloosa County, Florida.

It is clear to this court that § 30-3-27, when read in conjunction with § 30-3-22(3), is applicable to the instant appeal. It is also equally clear that the trial court correctly applied § 30-3-27 to the instant facts.

Under § 30-3-27 a court may decline to exercise its jurisdiction over a child custody proceeding if it determines that it is in the child’s interest that another state assume jurisdiction. The decision is obviously a discretionary one, and the statute lists several factors that the trial court may consider.

The husband contends that the trial court erred in also considering other factors not enumerated in the statute. However, as worded, the statute clearly allows the trial court to consider other factors it may deem relevant and, accordingly, we find no error here.

One factor, specifically enumerated in the statute, see § 30-3-27(c)(l), is whether another state is or recently was the child’s home state. Under § 30-3-22 “home state” is defined as that state in which the child has resided with a parent for at least six consecutive months. Under this definition Florida, not Alabama, qualifies as the child’s home state. A second factor, see § 30-3-27(c)(2), is whether another state has a closer connection with the child and his family. In the present case there was evidence that the couple owns a home in Florida, that the daughter has lived in this home since late 1980 or early 1981, and that she had attended kindergarten in Florida. No substantial Alabama contacts were established other than the father’s residence. A third factor, see § 30-3-27(c)(5), is whether the exercise of jurisdiction by an Alabama court would contravene the purposes of the Uniform Child Custody Jurisdiction Act stated in § 30-3-21. One of these purposes is to deter the unilateral removals of children undertaken to obtain custody awards, see § 30-3-21(a)(5). The fact that the husband removed the daughter from Florida less than two weeks before he filed for custody supports a conclusion that the purposes of the Act would be better served if Alabama courts were to decline jurisdiction.

Additionally^ under § 30-3-28, a court may decline to exercise jurisdiction if it finds that the petitioner has wrongfully taken the child from another state or engaged in similar reprehensible conduct. Although the trial court did not expressly indicate that it relied upon this section, the denial of jurisdiction can be supported hereunder.

The husband also contends that the trial court erred in charging him with the court costs and wife’s attorney fees in the dismissed action. However, authority for the action is clearly available under § 30-3-27(g).

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Emmitte Edwin MIMS v. Miriam Louise MIMS.
    Civ. 3958.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.

      Frank W. Riggs, Montgomery, for appellant.
    G. Houston Howard, II of Howard, Dunn & Howard, Wetumpka, for appellee.
   BRADLEY, Judge.

The parties to this appeal were divorced in February of 1982. The decree of the court required the husband to pay the wife $250 per month as alimony. The husband failed to make the required payments, and in July 1982 the wife sought a rule nisi to have the husband held in contempt for failure to make the alimony payments.

After a hearing, and on August 31, 1982, the trial court held the husband in contempt and ordered him to pay $1,750 in alimony arrearages plus an attorney’s fee of $300. The court directed that the husband could purge himself of the contempt by paying $100 per month on the arrearage in addition to the regular alimony payments.

The husband failed to abide by the court’s decree and, after another hearing on January 25, 1983, was held in contempt and placed in jail. The husband was to remain in jail until he paid the sum of $2,350.

The husband’s present wife borrowed money and paid the $2,350 contempt judgment. The husband was released from jail. No appeal was taken from this judgment, nor were any posttrial motions filed.

On April 12, 1983 the husband filed a motion asking that the wife be required to restore to him the $2,350 he had been required to pay to her in order to be released from jail. He alleged in the motion that the only funds available to him to pay the alimony arrearage were Veterans’ Administration service-connected monthly disability pension payments that he received and that such benefits could not be used to make alimony payments. The trial court overruled the husband’s motion.

Husband argues here that the trial court erred in refusing to require the wife to refund the $2,350 paid by the husband to be released from jail due mainly to 38 U.S.C., section 3101(a) (1976), which provides in part as follows:

“Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary....”

Husband also argues that 42 U.S.C. section 659(a) (1976) shows an intent by Congress that veterans’ disability compensation benefits should be exempt from legal process to require such veteran to pay alimony to his ex-wife.

The wife replies that the motion filed by the husband is a rule 59(e), Alabama Rules of Civil Procedure motion to alter or vacate the contempt judgment, and as such, was filed too late. The motion was not filed until more than thirty days after the January 25, 1983 contempt order.

Although wife argues that husband’s motion to restore funds is a 59(e) motion to alter or vacate the January 25, 1983 judgment, we believe husband’s motion is really a rule 60(b)(1) motion asserting that the trial court made a mistake of law in its January 25, 1983 judgment. In other words, husband says the trial court erred in requiring him to pay alimony out of his VA service-connected disability pension; hence, he says, the trial court should require the wife to repay the $2,350 to the husband.

Viewed in this light the husband’s motion is not a 59(e) motion to alter or vacate a judgment but to enter a new judgment because the court had made a legal mistake in its original judgment. Of course, such an argument could have been and more rightly should have been presented by an appeal. However, no appeal was taken from the January 25, 1983 judgment.

The supreme court held in City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981), that “mistake” set out in rule 60(b)(1) did not encompass mistakes of law; otherwise rule 60(b)(1) relief would be as extensive as rule 59(e) relief. Accordingly, the trial court properly overruled husband’s motion as a rule 60(b)(1) motion. Moreover, the trial court properly overruled husband’s motion even if it is considered a rule 59(e) motion, because the motion was filed more than thirty days after the January 25, 1983 judgment. See rule 59(e), A.R.Civ.P.

Since we have decided husband’s appeal on procedural grounds, we decline to discuss the merits of the appeal. However, we note that this court has recently held in Lott v. Lott, 440 So.2d 1090 (Ala.Civ.App. 1983), that Veterans’ Administration service-connected disability benefits can be considered as a source of income from which periodic alimony may be paid. We also held in Mims v. Mims, 442 So.2d 102 (Ala.Civ.App.1983), that section 3101 of title 38 of the United States Code does not apply to a ease where a former wife is seeking to recover periodic alimony from a former husband, because such a claim is not based on a debt.

We, therefore, find that the trial court properly overruled husband’s motion to restore to him the $2,350 he had paid to be released from jail.

Wife’s request for attorney’s fee is denied.

AFFIRMED.

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


text:
    Jack William BATTLES v. THOMAS R. FOSTER PULPWOOD COMPANY, INC., etc.
    Civ. 3978.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Stephen E. Harrison, of Burns, Shumaker & Davis, Gadsden, for appellant.
    George P. Ford, of Simmons & Ford, Gadsden, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The plaintiff sued the defendant for workmen’s compensation benefits. The trial court after an ore terms hearing entered a judgment for the defendant. The trial court found the plaintiff to be an independent contractor and therefore not entitled to workmen’s compensation benefits.

The plaintiff, through able counsel, appeals and we affirm.

The dispositive issue on appeal is whether there is any evidence to support the trial court’s conclusion that the plaintiff was an independent contractor.

At the outset, we again state that on appeal of a workmen’s compensation case this court will not weigh the evidence but will simply see if there is any evidence to support the trial court’s finding. Haggard v. Uniroyal, Inc., 428 So.2d 865 (Ala.Civ.App.1982).

The evidence, when viewed in the above light, reveals the following: The plaintiff was one of approximately eighty pulpwood cutters who had sold wood to the defendant-company in the past six months. Like other cutters, the plaintiff had no written contract with the defendant, no set work days or hours, and was not required to report to defendant’s yard at any given time.

Some of the cutters who sold wood to the defendant made their own arrangements with landowners to cut wood from their lands, while others cut wood from lands upon which the defendant had secured timber rights. If cutting was done on the lands upon which the defendant held timber rights, the company gave the cutter specific instructions as to which trees were to be cut in keeping with the timber rights granted the defendant. On occasion the defendant would drop by after the cutter had begun his cutting to make sure the directions were being followed. If the defendant showed a cutter a particular tract of timber that needed to be cut, the cutter could choose not to cut that tract. If a cutter cut timber from land not under the control of the defendant, he would be free to sell it to another pulpwood company.

The defendant paid cutters by check for each load of wood as it was delivered. No withholding taxes, social security, or other deductions were made from these checks. The defendant had no full-time employees and no “payroll” as such. It did not maintain a workmen’s compensation insurance policy, but only an accident insurance policy similar to those maintained by other area wood dealers.

The cutters who sold to the defendant furnished their own trucks and saws and were responsible for paying their own gasoline and maintenance costs, and for hiring and paying their own helpers. The defendant did not provide or pay for any of the cutters’ equipment, and it could not hire or fire any of the cutters’ helpers. The defendant only bought from cutters who had cut their wood in lengths and breadth which conformed to certain specifications posted at defendant’s place of business. These specifications had been supplied to the defendant by its buyers, Georgia Pacific and Kimberly-Clark.

On the day the plaintiff suffered his injury, he was cutting wood from land upon which the defendant held timber rights. The plaintiff had his brother-in-law and wife helping him cut. The injury occurred when plaintiff’s truck became stuck in some mud. While plaintiff was unloading the truck in an attempt to move it, a log fell, mashing his hand. The evidence as to the extent of disability the plaintiff sustained was disputed.

The facts of the instant case almost parallel those in Dennis v. Huff, 406 So.2d 412 (Ala.Civ.App.1981). In Dennis we affirmed the trial court’s judgment that the pulpwood cutter was an independent contractor. Based upon the factual similarity of the instant case to Dennis and in light of the narrow standard of review applicable, we have no alternative but to conclude that there is ample evidence to support the trial court’s ruling. The judgment below is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge

text:
    Barbara IRVIN v. Catherine HOUSTON.
    Civ. 3932.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.
    Robert G. Kendall of Johnston, Johnston & Kendall, Mobile, for appellant.
    Herndon Inge, III, Mobile, for appellee.
   WRIGHT, Presiding Judge

Plaintiff leased by written lease a residence from defendant in 1977. The lease was renewed annually with some immaterial changes. The last renewal was in September 1980. Each lease contained an exculpatory clause exempting lessor from all liability for injury to lessee resulting from the negligence of lessor or her agents in relation to the leased premises. There was a fire at the leased premises in December 1980.

Plaintiff lessee brought suit claiming breach of contract for failure to repair a hot water heater in a’first claim. A second claim charged negligence in failing to repair or replace a faulty water heater. Defendant lessor defended on the terms of the lease. At trial before a jury, the court removed the first claim for breach of contract from the jury. The second claim, based upon negligence, was submitted to the jury with direction to disregard the lease and its exculpatory clause. The court charged the jury that the issue was whether defendant negligently performed a voluntary undertaking to repair the water heater, which allegedly caused the fire.

Defendant's motion for directed verdict on the negligence claim was denied. Defendant also duly objected to the charge to the jury directing them to disregard the terms of the lease including the exculpatory clause. Defendant's motion for new trial and judgment notwithstanding the verdict was also denied.

The only issue presented by defendant as appellant here is whether the exculpatory clause in the lease prohibits recovery by plaintiff for the alleged negligence of failure of defendant to repair a defective water heater during the term of the lease.

Upon the authority of the decision in the case of Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala.1980), the issue must be found in favor of the defendant. The evidence presented, if showing any'negligence at all, shows nothing more than passive negligence as described in Matthews. Matthews stands for the proposition that a clause exculpating the lessor in a private lease from all negligence is alive and valid, except in the instance of the active negligence of the lessor, or, as in the case of Taylor v. Leedy and Company, 412 So.2d 763 (Ala.1982), the concealment of a latent defect known by the lessor at the time the lease is made.

Recognizing that we may aid in the continuation of Mr. Justice Jones in his iconoclastic role assumed in his dissent in Matthews, we must yet travel with the majority’s decision.

For error in denying to defendant a directed verdict and in failing to grant the motion for judgment notwithstanding the verdict, the judgment of the trial court is reversed. The case is remanded for entry of a judgment not contrary to this opinion.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

      . We omit the clause because of its length.


text:
    Oliver SWANNER v. REED’S PRINTING & SUPPLY CO., INC.
    Civ. 3941.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.
    Clark E. Johnson, III, Arab, for appellant.
    H. Nelson Camp, Huntsville, for appel-lee.
   WRIGHT, Presiding Judge.

This case, upon its facts, falls squarely within the law as declared by the Supreme Court in the case of Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala.1980). Upon that authority the judgment of the trial court must be and hereby is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    (In the Matter of Michelle RHODES, a child). Michelle RHODES, a child, by her guardian ad litem, Tim Reynolds v. PIKE COUNTY DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 3999.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.

      Tim Reynolds, Troy, for appellant.
    Mary Lee Stapp and James E. Long, State Dept, of Pensions and Sec., Montgomery, for appellee.
   BRADLEY, Judge.

This is a child custody case.

In November 1980 Michelle Rhodes, a minor, became subject to the supervision and care of the Juvenile Court of Pike County, Alabama allegedly due to sexual mistreatment by her father. On August 3, 1981 Michelle was adjudged a dependent child and placed in the temporary legal custody of the Pike County Department of Pensions and Security.

In August 1983 the Pike County DPS petitioned the court for a hearing so that the court could decide what to do with Michelle. DPS suggested that it be allowed to retain temporary legal custody of Michelle and that the court make such other orders as would be in her best interests.

A guardian ad litem was appointed for Michelle and the parents were notified of the impending proceedings.

A hearing was held at which Michelle was present with her guardian ad litem and testified, and Michelle’s mother appeared and testified. The DPS caseworker who had handled Michelle’s case for two years also appeared and testified.

After the hearing the trial court decided that Michelle’s disposition would remain unchanged and that a review of that disposition would be conducted in nine months. Michelle appeals.

Michelle argues that the petition filed by DPS to review her case disposition did not comply with the proper statutory requirements for extending custody and therefore she was denied adequate notice of what she would be called on to defend against. Michelle also says that DPS failed to prove by clear and convincing evidence that custody in DPS should be extended.

In reply to Michelle’s first contention, DPS argues that no objection was made to the petition for further disposition of Michelle in the trial court. DPS also says that everyone interested in the present proceedings was given notice not only of the hearing date but also of the issues to be tried.

In Lawson v. Garrett, 286 Ala. 125, 237 So.2d 648 (1970), the supreme court said:

“In the absence of a specific objection, bringing the omission to the attention of the trial court, we will not, ex mero motu, reverse on a point raised in brief on appeal for the first time.
“The functions of this court in its appellate character are strictly confined to the action of trial courts upon questions which are presented to and ruled upon by them. We cannot put a trial judge in error for failure to rule on a matter which has never been presented to, nor decided by, him.” [Citations omitted.]

Since Michelle’s first contention is presented for the first time on appeal, it comes too late.

We would observe, however, that Michelle and her parents were fully apprised of the issues and relief sought by DPS in its petition and the trial judge again informed them of those issues at the beginning of the hearing.

The purpose of pleadings is to give notice. Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975).

In the case at bar the petition filed by DPS clearly said that it was asking the court to review Michelle’s situation and continue its prior disposition. The petition further requested such other relief as would be in Michelle’s best interests.

We find that Michelle had adequate notice of the impending proceedings and of the issues there to be decided.

Michelle’s final argument is that the trial court’s order is not supported by clear and convincing evidence.

The paramount issue in a child custody case is the best interests and welfare of the child. Keele v. Keele, 347 So.2d 1360 (Ala.Civ.App.1977). And, where the trial court hears the evidence ore tenus, its findings will be presumed correct, and its judgment will not be overturned unless found to be unsupported by the evidence or plainly and palpably wrong. Cornett v. Cornett, 398 So.2d 303 (Ala.Civ.App.1981).

The evidence shows that Michelle was placed in the temporary legal custody of DPS because of alleged sexual abuse by her natural father. Michelle remained in a foster home for several months.

At about the time DPS was considering returning Michelle to her parents’ custody, the parents moved out of Pike County because the father lost his job. Michelle was then permitted to live with her grandparents.

Even though the parents lived fairly close to the grandparents, the parents did not visit Michelle very often.

Several months later the grandparents requested of DPS that they be relieved of Michelle’s custody. They were unable to control her, nor were they able to get her to do her school work.

DPS placed Michelle in the United Methodist Children’s Home in Selma, Alabama in August 1983.

There was testimony that the Children’s Home has a program to aid children who are having behavior and school problems.

Michelle testified that she did have school problems and boy problems — she is an early teenager — while living with her grandparents. She says she is doing pretty well at the Children’s Home and with a-little effort can do better, although she would rather be living with her parents.

It should be noted that the placement of Michelle in the Children’s Home was discussed with the parents and they agreed that Michelle would benefit from such placement.

The DPS caseworker testified that Michelle would benefit from the structured program offered by the Children’s Home and after the first nine months in the home DPS would evaluate Michelle’s situation to determine if she could be returned to the custody of her parents.

We find that the trial court’s order is supported by the evidence and that its judgment is not plainly and palpably wrong.

AFFIRMED.

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


author: TYSON, Judge. TYSON, Judge. BOWEN, Judge,

text:
    John Marion ROBINSON v. STATE of Alabama.
    8 Div. 681.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Nov. 2, 1982.
    Ralph E. Slate, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

John Marion Robinson appeals to this court following his indictment for felony possession of a pistol, and two-year sentence by the circuit court after a plea of guilty entered therein by the appellant.

I

This record, however, does not contain the transcript of the guilty plea proceedings before the circuit court so that this court is unable to determine whether or not there was proper compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There is no showing of indigency in this case. While there is an “Ireland Form” in the record, from our examination of same, there is an insufficient basis for this court to determine whether or not appellant was properly advised of his rights under Boykin v. Alabama, supra. Therefore this record is deficient under the standards laid down by the Supreme Court of Alabama in Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974) and authorities therein cited. See also Alston v. State, 414 So.2d 488 (Ala.Cr.App.1982).

II

Moreover, appellant argues that there was an understanding with the district attorney that appellant was to receive probation in exchange for his plea of guilty to the charge of felony possession of a pistol.

On this issue, there is no transcript of the sentencing hearing, either, so that this court is unable to determine whether or not the guilty plea was based upon an understanding with the district attorney’s office that appellant was, in fact, to receive probation. See Arnold v. State, 409 So.2d 947 (Ala.Cr.App.1982) and authorities therein cited.

Inasmuch as there is an insufficient record for this court to properly determine the basis of either of the alleged errors, we have no alternative but to reverse and remand this cause for new trial.

REVERSED AND REMANDED.

All the Judges concur.

On Rehearing

TYSON, Judge.

The State of Alabama has petitioned this court by application for rehearing to extend its opinion of August 24, 1982, and to consider that the record on appeal in the instant cause also includes a conviction for third degree burglary and requests this court to also address this appeal.

Together with the conviction for felony possession of a pistol and two-year sentence therefor, this record does, in fact, also contain a conviction showing an indictment and minute entry establishing the third degree burglary of Southern Sash of Decatur, Inc., for which the appellant was adjudged guilty and sentenced to ten years, following the entering of a plea of guilty..

The trial court allowed the appellant to withdraw his plea of not guilty after conferring with his attorney. The cause was then set on the issue of probation, which was denied, and this appeal followed.

I

This record, like the transcript of the guilty plea proceeding, which involved the conviction of a felony possession of a pistol and two-year sentence, does not contain a colloquy of the guilty plea proceedings, nor does the record in this appeal contain a colloquy of the probation hearing which involved the conviction of third degree burglary and ten-year sentence.

Since there apparently is some dispute over whether or not such guilty plea was based upon an understanding with the district attorney’s office to recommend probation, we must reverse and remand both of these causes for a new trial, since there is an insufficient record for this court to properly determine the basis of either of the alleged errors.

We therefore have no alternative but to reverse and remand both of these causes for a new trial. (Authorities cited on original deliverance).

II

The attorney general in brief requests this court to consider an affidavit attached to the brief from the official court reporter concerning the status of the transcript and colloquy of these guilty plea proceedings.

Such affidavit sets forth matters which the attorney general contends occurred at trial, or at the probation hearing, but which are not shown by a motion for new trial, or by appropriate motion to correct the record as filed in the trial court, thus we cannot consider same on appeal.

We believe the rule controlling such affidavit, and matters asserted in brief on rehearing, to be controlled by Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971) as follows:

“The rule is that argument in brief reciting matters not disclosed by the record cannot be considered on appeal, Christian v. Reed, 265 Ala. 533, 92 So.2d 881; and the record cannot be impeached on appeal by statements in brief, by affidavits, or by other evidence not appearing in the record. Coleman v. Estes, 281 Ala. 234, 201 So.2d 391; Liberty National Life Ins. Co. v. Patterson, 278 Ala. 43, 175 So.2d 737; Evans v. Avery, 272 Ala. 230, 130 So.2d 373.”

See also Dunaway v. State, 50 Ala.App. 198, 278 So.2d 198, cert. denied, 291 Ala. 777, 278 So.2d 200 (1973).

Both of these cases must therefore be reversed and remanded for a new trial.

OPINION EXTENDED, APPLICATION OVERRULED; CASES REVERSED AND REMANDED.

HARRIS, P.J., and BARRON, J., concur.

BOWEN, J., dissents with opinion. De-CARLO, J., concurs in dissent.

BOWEN, Judge,

dissenting.

The majority reverses and remands for new trial two of the defendant’s convictions based on guilty pleas “since there is an insufficient record for this Court to properly determine the basis of either of the alleged errors.”

On application for rehearing, the Attorney General submitted the affidavit of Darrell Haley, the official court reporter for the 8th Judicial Circuit. Mr. Haley states that the defendant’s retained counsel advised him not to start work on the transcript until advised to proceed. Mr. Haley also states, “No order for the transcript was ever received from the attorney, and I was never requested to furnish the transcript.”

As the majority notes, this affidavit is not properly before this Court. However, I cannot completely ignore it either. I would remand the cause for a hearing to determine why the record is not complete. I would not allow a defendant to profit by invited error if that be the case.

Under the same reasoning as employed by the majority in rejecting the court reporter’s affidavit, the argument of any misunderstanding concerning probation should also be disregarded. That contention is only supported in the record by the un-sworn allegations of a motion to withdraw the two guilty pleas. That motion was submitted on “affidavits and other information ... without a hearing.”

The only affidavit contained in the record is that of Larry Madison, Assistant District Attorney. That affidavit is to the effect that he promised and did not take any position regarding probation. The motion does not dispute this but merely alleges that the defendant and his attorney “believed” that probation would be granted. In reversing the convictions, the majority has applied the wrong standard. “(I)n the absence of the evidence and proceedings on the trial, all presumptions must be indulged in favor of the trial court. Error cannot be presumed.” Thomas v. State, 231 Ala. 606, 607, 165 So. 833 (1936). “Where the record on appeal is silent, it will be presumed that what ought to have been done was not only done, but was rightly done.” Watson v. State, 398 So.2d 320 (Ala.Cr.App.), cert. denied, 398 So.2d 332 (Ala.1981). This is not a case where no court reporter was available. See White v. State, 403 So.2d 287 (Ala.Cr.App.1980), cert. denied, 403 So.2d 292 (Ala.1981).

It is a fundamental principle of appellate review that error will not be presumed on appeal. Error cannot be based on matters not shown in the record. Watson, 398 So.2d at 330. A judgment cannot be impeached or contradicted by matters not appearing in the record proper. Williams v. State, 43 Ala.App. 343, 190 So.2d 556 (1966). The defendant is charged with the duty of presenting a correct record to this Court. Weaver v. State, 401 So.2d 344 (Ala.Cr.App.1981).


author: BEATTY, Justice.

text:
    Ex parte State of Alabama. (Re John Marion ROBINSON v. STATE of Alabama).
    82-141.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      Charles A. Graddick, Atty. Gen. and Jennifer M. Mullins, Asst. Atty. Gen., for petitioner.
    Ralph E. Slate, Decatur, for respondent.
   BEATTY, Justice.

Certiorari was granted to determine whether the Court of Criminal Appeals, 444 So.2d 882, had properly reversed the judgment of the trial court and remanded the cause for a new trial. We reverse and remand to the Court of Criminal Appeals.

The action of that Court in reversing the judgment of conviction was based upon, not an incomplete record, but the absence of any record disclosing a Boykin colloquy or an agreement to receive probation. Cf. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974), and Alston v. State, 414 So.2d 488 (Ala.Cr.App.1982), in which records were present.

In this case there was no transcript of the trial court’s proceedings. Thus, there was an absolute silence on the issues reviewed by the majority of the Court of Criminal Appeals. A reviewing court cannot predicate error on matters not shown by the record. Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. den., 398 So.2d 332 (Ala.1981). Indeed, a silent record supports a judgment. Robertson v. State, 29 Ala.App. 399, 197 So. 73 (1940). It is the appellant’s duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.1977), cert. den., 347 So.2d 1384 (Ala.1977); Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959).

Thus, the reviewing Court below erred in predicating error on the silent record. The judgment of that Court, accordingly, is reversed, and this cause is remanded to that Court for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

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

FAULKNER and ADAMS, JJ., dissent.


author: TYSON, Judge.

text:
    John Marion ROBINSON v. STATE of Alabama.
    8 Div. 681.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
   TYSON, Judge.

This cause was remanded to this court with directions that an appropriate order be entered upon which to base our judgment reviewing the proceedings in the trial court. Accordingly, this cause is remanded with directions to the Circuit Court of Morgan County, Alabama, and there to transcribe a complete record of the guilty plea proceedings involving both the charge of felony possession of a pistol and in addition, the guilty plea proceedings involving the third degree burglary of Southern Sash, Inc. charge. In addition to the colloquy of both of these proceedings, any subsequent proceedings involving the sentencing in both of these cases should also be included in order that a complete record of all of this matter be reviewed by this court. Robinson v. State, 444 So.2d 884 (Ala.1983).

This cause is hereby remanded with directions as herein noted.

REMANDED WITH DIRECTIONS.

All the Judges concur.

On Rehearing

Pursuant to the order of this court on remand from the Supreme Court of Alabama directing that the proceedings involving the guilty plea in both the burglary charge and also the charge of felony possession of a pistol be transcribed and sent to this court, together with the proceedings from the sentencing hearing, the Circuit Court has filed its transcript containing the aforesaid proceedings.

This record contains a full Boykin v. Alabama colloquy, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), showing that the appellant desired to enter a plea of guilty to each of the charges. The record reveals the following: (R. 3 and 4)

“THE COURT: You understand what the charges are in these cases? One of them is the case of burglary and one is felonious possession of a pistol. You can have a trial, as you know, on each of these cases if you wish, but you have the right to enter a plea of guilty if you and your attorney think it’s to your best interest to do so. You have all of these rights that are set out in this request to enter the plea of guilty. Did you sign these documents that are entitled ‘A Request to Enter a Plea of Guilty'?
“DEFENDANT: Yes, sir.
“THE COURT: Did you understand them?
“DEFENDANT: Yes, sir.
“THE COURT: Do you have any questions about them?
“DEFENDANT: No, sir.
“THE COURT: Are you guilty of the burglary in the third degree case or not guilty?
“DEFENDANT: Guilty.
“THE COURT: Are you guilty or not guilty of the felonious possession of a pistol?
“DEFENDANT: Guilty.
“THE COURT: All right.
“MR. SLATE: If it please the Court, on the burglary case he is guilty, as his lawyer knows, of aiding and abetting, waiting in the car, lookout, and so forth.
“THE COURT: How old are you?
“DEFENDANT: Twenty-one.
“MR. SLATE: You were twenty years old when this charge was made?
“DEFENDANT: Yes, sir.”

The record further indicates that the District Attorney’s office made its recommendation that the appellant be sentenced to two years for felony possession of a pistol and ten years to the third degree burglary charge with the sentences to run concurrently. The trial court noted the following: (R. 5-6)

“THE COURT: What is your recommendation?
“MR. MADISON: Judge, we recommend that on the case charging the defendant with a felony possession of a pistol, that he be sentenced to the penitentiary for a period of two years. On the case charging burglary in the third degree, that he be sentenced to the penitentiary for a period of ten years, with both cases to run concurrently.
“THE COURT: Do you understand that?
“MR. SLATE: Yes, sir.
“THE COURT: And does your client understand it?
“MR. SLATE: Yes, sir.
“THE COURT: In the case of a felony possession of a pistol, do you have anything to say why the sentence should not be imposed?
“DEFENDANT: No, sir.
“THE COURT: I sentence you to the penitentiary for a period of two years. In the case of burglary in the third degree, do you have anything to say why sentence should not be imposed?
“DEFENDANT: No, sir.
“THE COURT: Did you all recommend ten years?
“MR. MADISON: Ten years. Not ten years and a day.
“THE COURT: I will sentence you to the penitentiary for ten years, and I order that these two sentences run concurrently.
“MR. SLATE: Would the Court note our application for consideration as a probationer?
“THE COURT: All right. I will note the application for probation. You are excused. Be back on the 4th day of March at 9:00 o’clock for the probation hearing.”

Thereafter, the proceeding was recessed until March 4, 1983, at which time a hearing was conducted on whether or not the appellant should be placed on probation. At this time, the appellant took the stand and testified, and his prior record as a juvenile was placed in evidence which showed that he had been incarcerated at the Boys’ Industrial School for approximately four and one-half years; that he had escaped from there and some larceny charges had been placed against him for taking an automobile and returning to Decatur, Alabama.

His personal situation and family situation were then discussed with him. The court then entered the following: (R. 14-15)

“THE COURT: I will sentence you to the State Penitentiary for ten years in each of the cases and order them to run concurrently with each other. Now, on the question of probation, I don’t have enough information other than the statement of the defendant to—
“MR. MADISON: Your Honor, before — I think the recommendation was two years on the first case. It only carries up to five years. That felony possession is a one to five sentence range, and I believe the recommendation was ten years in CC80-0597 and two years in 0596.
“THE COURT: The 0597 was the burglary?
“MR. MADISON: Yes, sir. Ten years on that and two years on the other one.
“THE COURT: All right, its two years then. In other words, it means the same as ten years anyway. To correct the record, show the sentence is two years in the felony possession of a pistol case. It runs concurrently also with the other case. I don’t have any information that would lead me, other than the statement of the defendant, to grant probation in this case, and in view of the fact that he possessed a sawed-off shotgun while burglarizing something, it’s very, very dangerous, and it was fired one time. I don’t know whether it was at someone or to scare somebody or what. I believe I must leave it in the hands of the Parole Board rather than probation, and it will have to be denied.”

As may be seen in the foregoing collo-quys, the appellant was fully advised of his constitutional rights and voluntarily and intelligently entered his two pleas of guilty. The State made a specific recommendation to the trial judge which was accepted and the appellant duly sentenced in accordance with this recommendation. No error appears.

A hearing followed on the question of probation and, as indicated above, the trial judge denied same based upon the evidence and charge against the appellant. The appellant had here been fully informed of all of his rights, was given a full and impartial hearing after his counsel had gone over each matter with him, and his rights carefully observed. No error appears.

This case is due to be and the same is hereby affirmed.

OPINION EXTENDED; APPLICATION OVERRULED; AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Geary Heber JONES. (In re: Geary Heber Jones v. State of Alabama).
    6 Div. 232.
    Court of Criminal Appeals of Alabama.
    June 21, 1983.
    Rehearing Denied June 21, 1983.
   PER CURIAM.

PETITION DENIED.

BOWEN, P.J., SAM W. TAYLOR and HUBERT TAYLOR, JJ., concur.

TYSON and HARRIS, JJ., dissent.

Cause remanded, Ala., 444 So.2d 888.