author: MADDOX, Justice. TORBERT, Chief Justice

text:
    Ex parte Brenda HANDLEY, n/k/a Brenda Handley Richards. (Re Bobby L. HANDLEY and Marlene M. Handley v. Brenda HANDLEY n/k/a Brenda Handley Richards).
    83-317.
    Supreme Court of Alabama.
    July 20, 1984.

      David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for petitioner.
    J. Zach Higgs, Jr. of Higgs & Conchin, Huntsville, for respondents.
   MADDOX, Justice.

The issue before the Court on this appeal is whether a trial court has equitable authority to grant a natural mother attorney’s fees for successfully defending an attempt by paternal grandparents to gain custody or visitation rights to minor children. This question is one of first impression in this state.

The facts and proceedings are not in dispute and are amply set forth in the Court of Civil Appeals’ opinion, 460 So.2d 162; therefore, we set out only a synopsis of the facts in this opinion.

Paternal grandparents petitioned for permanent custody of their three grandchildren, alleging that it was not in the children’s best interests to remain with their mother. A guardian ad litem was appointed to represent the interests of the children. The children’s mother counterclaimed for a reasonable attorney’s fee. The grandparents objected to the filing of the counterclaim and amended their original complaint, asking that they at least be awarded visitation rights.

After a hearing, the trial court denied the grandparents’ request for custody and visitation rights, and awarded to the mother the amount of her attorney’s fees in this case. The trial court also ordered the grandparents to pay court costs and the guardian ad litem fee. Following the trial court’s denial of their post-trial motions, the grandparents appealed.

The Court of Civil Appeals affirmed the trial court’s custody and visitation decision, but reversed the award of attorney’s fees to the mother. The mother petitioned this Court for certiorari to review the attorney fee issue.

The Court of Civil Appeals held that “[i]n Alabama, attorneys’ fees are recoverable only where authorized by statute, when provided in a contract or in an equitable proceeding where the efforts of an attorney create a fund out of which fees may be paid,” citing Shelby County Commission v. Smith, 372 So.2d 1092 (Ala.1979), quoting State ex rel. Payne v. Empire Life Insurance Co. of America, 351 So.2d 538 (Ala.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978); and Parker v. Jefferson County Commission, 347 So.2d 1321 (Ala.1977).

The Court of Civil Appeals reasoned:

“Attorney’s fees have been awarded to the mother in child custody cases, but in those cases, the father has been the party required to pay the fees, the authority for the award arising from the marital relationship. Torme v. Torme, 251 Ala. 521, 38 So.2d 497 (1949).
“Since there has been no marital relationship between the parties, no statute authorizing the award of attorney’s fees, and no fund created for such purpose, we hold that the trial court had no legal basis for requiring the [Handleys] to pay the mother an attorney’s fee. This aspect of the decree is reversed.”

We agree with the Court of Civil Appeals that this case does not fall within the category of those cases in which attorneys’ fees have been awarded to a party, and we agree that our prior cases which have allowed attorneys’ fees in custody cases have been cases in which the parties were married, or were divorced from each other; therefore, we must determine whether the rule should be extended to custody cases involving parties who are strangers to the marital relationship.

As we have previously indicated, this is a question of first impression in this state, but we are convinced, after a study of cases in which attorneys’ fees have been awarded in equity cases, that the trial court’s award of attorney’s fees to the mother was equitable and just and should have been sustained.

We first set forth some well recognized equitable principles which are applicable in child custody proceedings. First, a pleading which, upon its face, concerns the welfare of a minor child is sufficient to invoke the equity jurisdiction of the court. Tcherneshoff v. Tcherneshoff, 283 Ala. 700, 220 So.2d 888 (1969), and courts do not merely have jurisdiction over the custody of minor children, but also have jurisdiction over the care of minor children. Ayers v. Kelley, 284 Ala. 321, 224 So.2d 673 (1969); Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939).

Second, when a proceeding is instituted to determine the custody of a minor child, that child immediately becomes a ward of the court. Department of Pensions and Security v. Oswalt, 275 Ala. 63, 152 So.2d 128 (1963); Esco v. Davidson, 238 Ala. 653, 193 So. 308 (1940). The well-being of the minor child is of paramount consideration, Ayers v. Kelley, supra, and thus, once equity jurisdiction of the court is invoked, any matter affecting a child may become the subject of chancery jurisdiction. Ayers v. Kelley, supra. This premise is based on the familiar principle that “[e]quity grants full relief when it has jurisdiction on any equitable ground to grant relief. Having assumed jurisdiction of a part, the court will determine all interrelated equities of the whole. Equity delights to do justice and not by halves.” Moore v. Moore, 255 Ala. 393, 51 So.2d 683 (1951). In other words, when a court of equity takes jurisdiction for one purpose, it will extend that jurisdiction so as to do complete justice with respect to matters which directly result from its decree. Hall v. Hall, 280 Ala. 275, 192 So.2d 727 (1966); Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558 (1955). Applying these principles, it is apparent that a court of equity, in Alabama, is authorized to mold its decree in order to adjust the equities of the parties and meet the necessities of each situation. First Alabama Bank of Montgomery, N.A. v. Martin, 425 So.2d 415 (Ala.1982), cert. denied, 461 U.S. 938, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983).

In the instant case, the trial court, invoking equitable jurisdiction, resolved the custody issue by rendering a decision in which it determined that it was consistent with the best interests of the children to leave their custody with their mother. In accordance with this decision, the trial court also awarded attorney’s fees to the mother.

In order to defend her right to the continued custody of her children, which the trial court determined was in their best interest, the mother was completely justified in having counsel to aid her, and we believe a principle of law set out in Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1968), a proceeding by a divorced wife to modify provisions in a divorce decree relating to custody and support of a minor child, is applicable here. In Brock, this Court held, as follows:

“The court had full authority to award a reasonable attorney’s fee. Keith v. Paden, 255 Ala. 294, 51 So.2d 9. True, such matter is largely in the discretion of the trial court. Here, however, Susan’s efforts to renegotiate the support payments had been unsuccessful. It was necessary for her to resort to judicial aid in her attempt to compel a renegotiation. Counsel to aid her was essential. Under these circumstances it appears to us that refusal of reasonable counsel fees to complainant must be considered an abuse of discretion, and we hold that the court erred in denying such fee.”

The Court of Civil Appeals discussed the Brock case, but apparently thought the rule of that case was inapplicable, because Brock involved a marital relationship and the instant case does not. As we read the Brock case and the principles of law stated therein, it did not turn so much on the relationship of the parties as it did on the fact that the mother found it necessary to hire counsel and resort to judicial proceedings to get relief.

In Brock, this Court cited Keith v. Paden, 255 Ala. 294, 51 So.2d 9 (1951), which holds that “where the divorce decree provided for alimony and maintenance, such provision continues to be within the power of the court to modify on account of changed conditions and, since the court retains such right, there is incidental to it also the right to an attorney’s fee under proper circumstances.” (Emphasis added.) While Brock arguably could be said to hold only that attorneys’ fees can be awarded in a proceeding which seeks to change support payments, as opposed to custody, we think there is no just reason why an equity court, when it assumes jurisdiction of a proceeding to change the custody of children, could not, within its discretion, award a reasonable attorney’s fee, even though there is no marital relationship between the litigants.

We hold, therefore, that the Court of Civil Appeals erred in determining that “since there was no marital relationship between the wife and the grandparents,” the trial court had no authority to award the mother an attorney’s fee. The judgment of the Court of Civil Appeals, therefore, is due to be reversed.

REVERSED AND REMANDED.

JONES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and FAULKNER, AL-MON and SHORES, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I dissent, because reliance on the case of Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1968), for support in creating what the majority admits is new law is misplaced.

In Brock the mother sought to modify a child custody and support decree. The father and paternal grandparents had custody for two months each summer. The father made child support payments. The mother wanted to eliminate all custody rights in the father and paternal grandparents and have the child support payments made by the father increased. This Court found the trial court erred in confirming the Register’s report, which denied an increase in child support, but this Court affirmed the trial court’s decision not to change the custody provisions.

In effect, the father prevailed on one issue and lost on another, while the paternal grandparents prevailed on the only issue concerning them. The majority opinion in this case would conclude that the Brock Court held it was proper to assess attorney fees against a party who prevails on the merits (the grandparents). I do not read Brock that way and suggest that a careful reading reveals that the award was made only against the father.

First, the case cited by the Brock Court, Keith v. Paden, 255 Ala. 294, 51 So.2d 9 (1951), in support of its conclusion that attorney fees could be awarded was the usual mother-father case. Second, the Court refers to the mother’s efforts to modify the child support provisions, which related only to the father, and concludes that “[ujnder these circumstances” the refusal to award attorney fees to the mother was an abuse of discretion. Brock, 281 Ala. at 532, 205 So.2d 903. This passage is sufficiently clear to indicate the attorney fee award was made on the basis of the dispute between the mother and father.

Brock simply does not support the majority opinion’s conclusion that attorney fees could be awarded in child custody cases where there is no marital relationship between the parties. The decision to award attorney fees in a case such as this is a reflection of a change of policy by this Court and should be recognized as such.

FAULKNER, ALMON and SHORES, JJ., concur.


source: Caselaw Access Project

author: BRADLEY, Judge. BRADLEY, Judge.

license: Public Domain

text:
    Bobby L. HANDLEY and Marlene M. Handley v. Brenda HANDLEY, n/k/a Brenda Handley Richards.
    Civ. 3706.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Rehearing Denied Sept. 19, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 84-31.
   BRADLEY, Judge.

Upon remand to this court by the supreme court, 460 So.2d 167, the decision of this court, 460 So.2d 162, reversing the trial court’s judgment requiring the grandparents to pay the mother an attorney’s fee in child custody dispute is reversed and the tria} court’s judgment awarding the mother an attorney’s fee is affirmed.

Appellee is awarded $350 as an attorney’s fee.

AFFIRMED ON REMAND.

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

ON REHEARING

BRADLEY, Judge.

In response to the affirmance by this court of the trial court’s judgment awarding an attorney’s fee to the mother as ordered by the supreme court, the Hand-leys argue that this court has not responded to their contention, made in their brief on original submission to this court, that the trial court erred in permitting the mother to file a counterclaim on the day of trial, asking for an attorney’s fee.

First, we would note that the Handleys failed to cite any authority for their contention that the trial court erred in permitting the mother to file her counterclaim for attorney’s fees on the day of trial.

The failure to cite and argue legal authorities in support of issues on appeal has the same effect as if no argument has been made in support of such issues. William Wilson Enterprises, Inc. v. Napier, 395 So.2d 89 (Ala.Civ.App.1981); Blair v. York Engineering Co., 380 So.2d 878 (Ala.Civ.App.1980). Those issues not properly argued are deemed waived. Super X Drugs v. Martz, 51 Ala.App. 370, 286 So.2d 47 (1973).

Even though the issue now raised by the Handleys has not been properly argued in this court, we observe that a counterclaim that matures after the pleading or which is omitted for some reason may, with permission of the trial court, be presented by amendment or supplemental pleading. Brooks v. Peoples National Bank, 414 So.2d 917 (Ala.1982); Rule 13(a), (e), (f), Alabama Rules of Civil Procedure.

The trial court permitted the mother to file her claim for attorney’s fee on the day of trial, and we do not find such action to be an abuse of its discretion.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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


author: WRIGHT, Presiding Judge.

text:
    MID-STATE HOMES, INC., a Corporation v. Ida Lee MOORE and Addie Williams McKinsey.
    Civ. 4294.
    Court of Civil Appeals of Alabama.
    May 9, 1984.
    Rehearing Denied June 13, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1087.

      R.A. Norred, Birmingham, for appellant.
    Ernest H. Hornsby and Cheryl S. Wood-ruff of Johnson, Huskey, Hornsby & Eth-eredge, Dothan, for appellees.

       The Supreme Court denied the petition for cer-tiorari sub nom. Ex parte: Moore and McKenzie.

   WRIGHT, Presiding Judge.

This is a statutory ejectment case.

On June 13,1974, Addie Williams McKin-sey signed an executory contract titled “Agreement for Deed” to purchase a certain realty, including a house, from Mid-State Homes, Inc. The agreement provided for a total sales price of $11,194, of which $250 was paid down with the remaining $10,944 to be paid in monthly installments of $60.80. Upon full payment, Mid-State agreed to convey all of its right, title and interest in the property to the purchaser. In 1975, after a dispute over ownership of a portion of the property with a neighbor and after making needed repairs, Mrs. McKinsey, her children and her mother, Ida Lee Moore, began residing in the house. Thereafter, Mrs. McKinsey became concerned about title to the property and requested Mid-State to produce clear title thereto. When Mid-State failed to do so, she discontinued monthly payments in October 1977. She had paid approximately $2,700 toward the purchase price. After default, she and her family continued to live in the house without making further payments.

On February 4, 1982, Mid-State brought suit for statutory ejectment against Mrs. McKinsey and Mrs. Moore pursuant to § 6-6-280, Code of Alabama 1975. The suit was heard ore tenus and a judgment was rendered in favor of Mrs. McKinsey and Mrs. Moore on November 23, 1983, the trial court finding that, because Mid-State failed to produce any evidence of its title to the property, it was not entitled to judgment in its favor. Mid-State appeals, asserting that Mrs. McKinsey and Mrs. Moore are estopped to dispute its title.

As Mrs. McKinsey correctly argues, it is a general proposition of law that a prerequisite to recovery in a statutory ejectment action is that it must appear that the plaintiff held title when the suit was commenced and continued to hold title until the time of trial. Enterprise Lodge No. 352 v. First Baptist Church, 288 Ala. 592, 264 So.2d 153 (1972). Such a plaintiff generally cannot recover where it fails to show title, regardless of whether the defendant’s title is valid or not. Enterprise Lodge No. 352, supra. However, this rule, which normally applies where two parties hold conflicting titles and one seeks to eject the other, does not apply where the defendant stands in a relation which estops him from denying the plaintiff's title, such as where the defendant claims under a deed from the plaintiff or where the defendant has executed a mortgage in the plaintiffs favor. Atlas Subsidiaries of Florida, Inc. v. Kornegay, 288 Ala. 599, 264 So.2d 158 (1972).

Similarly, the principle has been long established in this state that a tenant is estopped, during the term of his lease and thereafter, from denying the title of his landlord as it existed at the inception of the tenancy, unless he surrenders possession to the landlord. Stewart v. Joiner, 268 Ala. 241, 105 So.2d 448 (1958). While in possession he may not defeat his landlord’s suit against him for possession, even by showing superior outstanding title, Stewart, supra. This estoppel is based on the following reasoning:

“Whenever one person is placed in such relation to another, by act or consent of that other, or act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or business, he is prohibited from acquiring rights in that subject, antagonistic to the person with whose interest he has become associated.’1

Potts v. Coleman, 67 Ala. 221 (1880).

By the same reasoning, the vendee of an executory contract, formerly referred to as a lease-sale contract, is estopped from denying the title of his vendor. Haygood v. Manley, 242 Ala. 435, 6 So.2d 887 (1942). Although the technical relation of landlord and tenant is not created by such a contract, the relationship of vendor and vendee in such transactions is essentially that of landlord and tenant. Wingard v. Randall, 269 Ala. 420, 113 So.2d 674 (1959). Thus, the vendee, having been placed in possession of the property by the vendor, may not question his title. Haygood, supra.

Here, the defendants, Mrs. McKinsey and Mrs. Moore, entered into an executory contract providing that legal title to the property would be delivered to them upon full payment of the purchase price. Having so agreed, they obtained equitable but not legal title to the property. Mid-State Homes, Inc. v. Brown, 47 Ala.App. 468, 256 So.2d 894 (1972). While Mid-State’s failure to provide clear title may have given them cause to rescind the contract, recover the down payment, monthly payments and interest thereon, Mid-State Homes, supra, we find no authority which would allow them to remain in possession of said property without further payment. Therefore, we find the trial court’s judgment denying Mid-State’s petition for ejectment to be in error.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Darleen Elizabeth PUGH v. James Arlin PUGH.
    Civ. 4066.
    Court of Civil Appeals of Alabama.
    June 27, 1984.
    Rehearing Denied Aug. 15, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1368.

      Jack W. Smith, Dothan, for appellant.
    Dow T. Huskey of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appel-lee.
   BRADLEY, Judge.

This is a child support modification case.

Darleen Elizabeth Pugh and James Arlin Pugh were divorced in the Circuit Court of Houston County on March 24, 1976. The decree provided that the two minor children (Dee Dee and Brandi) would be in the joint custody of the husband and wife and that the husband would pay to the wife $300 per month for the support of the minor children. On June 6, 1980 the wife filed a petition for an increase in child support.

On September 19, 1980 the court heard testimony and on October 17, 1980 entered an order of modification reducing the amount of child support from $300 to $150 during the summer months when the husband had custody, and made an addition to the support during the winter months of $40 per month for school lunches.

The wife remarried on August 22, 1982. The husband is unmarried and lives in an apartment in Dothan, Alabama.

The husband had the minor children for visitation purposes four or five days per month for about three years after the divorce. Beginning in 1979 the husband has had the children in his custody by agreement with the wife on an average of half the year. The husband continues to pay the child support ordered by the court in its original decree and in the October 17, 1980 order of modification. In addition, the husband supports the children while they are with him for one-half of each year. Also, the husband maintains a complete, separate set of clothes for the minor children at his home.

The wife filed a second motion for modification which was heard on October 3, 1983. Wife supplied testimony that the cost of living has increased seventy percent since the original decree was granted in 1976. Moreover, the record reflects that husband’s income has substantially increased. Both the husband and wife testified as to their monthly costs from expense records. There was testimony concerning custody and visitation with the minor children, but that part of the order of modification was not made part of this appeal by the wife and will not be considered.

On October 4, 1983 the trial court entered an order providing for no increase in child support to the wife. The wife appeals from this order.

Wife contends that the trial court abused its discretion in denying her an increase in child support. We disagree. It is settled law that a modification or non-modification of child support is a matter for the exercise of judicial discretion and the judgment of the trier of fact will not be reversed on appeal unless there is a plain and palpable abuse of that discretion. Butts v. Butts, 418 So.2d 161 (Ala.Civ.App.1982). Moreover, the modification or non-modification of child support rendered after an oral hearing of testimony will be reversed only if the trial court’s decision is so unsupported by the evidence as to be unjust. Johnson v. Johnson, 396 So.2d 697 (Ala.Civ.App.1980).

The record shows that the husband, with the permission of the wife, increased his period of joint custody of the two minor children from very short periods each year to an average of one hundred seventy-nine days each year since 1979. Further, husband receives no support from wife for the one-half year he has custody of the children, yet he continues to pay support to the wife for the minor children for twelve .months each year.

Moreover, even though the husband has had an increase in his salary since the date of the judgment of divorce, the record reveals that his legitimate expenses have also increased, including the support of his minor children. The evidence reflects that the husband has shown a real concern for his children’s best interests and has gone so far as to make them primary beneficiaries of his estate upon his death.

The order of modification was entered by the court after it heard the evidence ore tenus. The rule in Alabama is that a presumption of correctness accompanies a judgment of a trial court where it hears the evidence ore tenus. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). The record shows no abuse of discretion and is replete with evidence to support the trial court’s judgment. Based upon the presumptions stated in Alford, supra, we find no error in the trial court’s refusal to increase child support payments to the wife.

AFFIRMED.

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

On Rehearing

BRADLEY, Judge.

In her motion for rehearing wife says the trial court’s judgment refusing to modify child support must be reversed because it considered evidence that went beyond the last decree, i.e. October 17, 1980, fixing the amount of child support, citing us to the recent supreme court case of Ex parte Alice Forlini-Parsons, 455 So.2d 858 (Ala.1984).

In Forlini-Parsons the parties were divorced in 1978 and child support was awarded. In August 1979 child support was reduced. In June 1982 child support was increased. These orders were not appealed.

In October 1982 husband filed a motion asking that the July 1982 order be changed because of “a material change in circumstances since the entry [of the order].” This request was denied in April 1983.

The supreme court said that this court, in considering the propriety of the 1983 decree, also considered the propriety of the 1982 orders which had not been appealed. That court then said that the court of civil appeals was limited to a consideration of changed circumstances since the 1982 decrees and had no authority to go beyond those decrees.

In taking this position the supreme court relied on the decisions in Rowe v. Boley, 392 So.2d 838 (Ala.Civ.App.1980), and Ex parte Boley, 392 So.2d 840 (Ala.1981). In both cases it was decided that the trial court is limited in child support modification eases to a consideration of evidence of changed circumstances “since the last decree awarding or actually modifying child support.”

In Boley the trial court specifically restricted its consideration of changed circumstances to the period since the last decree awarding or actually modifying child support. Likewise, in Forlini-Par-sons the October 1982 petition for modification of child support specifically requested that the trial court consider changed circumstances since the July 1982 order. The 1982 order changed child support. There is nothing to indicate that the trial court failed to observe this request.

In the case sub judice the parties introduced evidence of changed circumstances that extended beyond the 1980 modification order which changed child support. The evidence covered the period back to the 1976 divorce decree. There was no effort by the parties to prevent the trial court from considering this evidence, nor was the trial court informed that it was limited to a consideration of changed circumstances since the modification decree of 1980. In other words, the case was tried on the basis that the court could consider evidence of changed circumstances back to the divorce decree of 1976.

Where a case is tried on a particular theory, that same theory will be used in reviewing it on appeal. Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974). Moreover, the trial court will not be put in error unless the matter complained about on appeal was called to its attention by objection or other appropriate method. Thompson v. Havard, 285 Ala. 718, 235 So.2d 853 (1970). The failure to object to the admission of inadmissible evidence amounts to a waiver of any error resulting from such admission. Watson v. McGee, 348 So.2d 461 (Ala.1977). The practical effect of this rule is that the parties may try their case on illegal evidence absent objection thereto. State v. Kennedy, 52 Ala.App. 470, 294 So.2d 439 (Ala.Civ.App.1974). No objection was made to the evidence of changed circumstances between 1980 and 1976, nor was the trial court

requested to exclude it from its consideration.

The factual situation in the present case is different from the ones in Boley and Forlini-Parsons and, as a result, those decisions do not require that the instant case be reversed.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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


author: BRADLEY, Judge.

text:
    Will R. WEAVER v. TOWN OF CHEROKEE.
    Civ. 4145-A.
    Court of Civil Appeals of Alabama.
    June 27, 1984.
    Rehearing Denied July 25, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1270.
    John D. Clement, Jr., Tuscumbia, for appellant.
    Gene M. Hamby, Jr. of Hamby & Baker, Sheffield, for appellee.
   BRADLEY, Judge.

This is the third time this attempted assessment has led to an appeal to this court. In Weaver v. Town of Cherokee, 397 So.2d 548 (Ala.Civ.App.1981), we held that the Town of Cherokee had failed to adopt a resolution or order authorizing the imposition of an assessment on property owners for the construction of a sanitary sewer project.

On remand the trial court held that the assessment against Weaver was void. Cherokee appealed this ruling and in Town of Cherokee v. Weaver, 414 So.2d 99 (Ala.Civ.App.1982), this court affirmed the trial court’s conclusion. We held that Cherokee’s failure to comply with section 11-48-29 was a jurisdictional defect, and that Cherokee would be required to retrace its steps only to the point in the assessment procedure where the defect occurred.

On remand from the second appeal, Cherokee proceeded by order or resolution to fix the amount of the assessment against Weaver’s property. Weaver’s written objections were overruled and he appealed to the Circuit Court of Colbert County.

Cherokee filed a motion to dismiss and/or a motion for summary judgment on the ground that the defect in the assessment procedure had been corrected and that the assessment should now be paid by Weaver. The trial court granted summary judgment to Cherokee and fixed the improvement assessments on Weaver’s property in the amounts of $4,000 and $5,118.44 respectively. These assessments were the same as fixed by the jury in the first trial of this matter. See 397 So.2d 548 (Ala.Civ.App.1981). Weaver’s motion for new trial was denied and he appeals.

Weaver argues that the trial court erred in allowing Cherokee to correct the section 11-48-29 defect because, once the final assessment is made by the municipal authority and an appeal therefrom is decided by the circuit court, the municipality has no jurisdiction to take corrective action. We disagree.

We held in the second appeal, i.e. 414 So.2d 99, that an assessment not made in compliance with section 11-48-29 is incomplete, ineffective, and void as to Weaver. We further held that Cherokee could correct such defect and had to go back in the assessment procedure only to the point where the error was committed.

Cherokee entered an assessment as required by section 11-48-29, Code 1975, and the trial court concluded that all of the procedural requirements for imposing an improvement assessment had been satisfied and nothing further remained to be done. Hence summary judgment was entered.

We agree with the trial court’s finding that Cherokee has now satisfied all of the procedural requirements for the imposition of an improvement assessment and nothing further remains to be done.

It must be remembered that in the first case Cherokee was found to have complied with all of the improvement assessment requirements except one, i.e. the section 11-48-29 requirement. Moreover, the issue of the amount of the assessment was tried to a jury and a verdict rendered.

Since Cherokee has now satisfied all of the requirements of an improvement assessment as set out in the Municipal Public Improvement Acts, the trial court properly entered judgment for Cherokee.

This conclusion is not altered by the failure of the trial court to grant a new trial to ascertain the amount of the assessment.

In the case of Forrester v. Putman, 409 So.2d 773 (Ala.1981), the supreme court held that a testatrix’s son who had challenged her 1977 will on the grounds of mental capacity and undue influence, which issues had been previously exhaustively tried and ably decided, was estopped from raising them again should the 1977 will be admitted for probate. By analogy to the case sub judice, Weaver, who had a jury trial on the issue of the amount of the assessment, is estopped from receiving a second trial on this aspect of the case.

There appearing no reversible error in the proceedings, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Alton Lester JOHNSON v. Belinda JOHNSON.
    Civ. 4194.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Rehearing Denied Aug. 8, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1304.

      Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    Anthony L. Cicio of Cicio & Nolen, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

The parties to this appeal were divorced in April 1982. The wife was awarded custody of the two minor children and the husband was required to pay child support. The marital homeplace was ordered sold and the proceeds divided.

Approximately one year later, the husband petitioned for modification of the decree to gain custody of the children. The husband also filed a petition for rule nisi against the wife for failure to convey certain realty. The wife answered and cross-petitioned for an increase in child support and to compel the husband to sell the marital homeplace as required by the original decree.

After many pleadings and much discovery, the husband dismissed his petition, and the parties entered into an agreement which was incorporated into a decree of modification. Pursuant to the agreement the trial court was to set attorney’s fees, if any, to be awarded the wife. The husband denied any responsibility for the wife’s attorney’s fees. The trial court awarded the wife $12,000 for her attorney of record. The husband, through able and distinguished counsel, now appeals and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in the awarding of attorney’s fees.

We see no need to detail the evidence. Such a recital would benefit neither the parties nor the law. The awarding of attorney’s fees in modification proceedings rests in the sound discretion of the trial court and its judgment will not be reversed except for an abuse of that discretion. Lochridge v. Lochridge, 448 So.2d 378 (Ala.Civ.App.1984); Peterson v. Peterson, 403 So.2d 236 (Ala.Civ.App.), cert. denied, 403 So.2d 239 (Ala.1981).

“In arriving at the value of legal services performed in a divorce action, the trial court may properly consider the following: (1) the nature and value of the subject matter of employment; (2) the learning, skill, and labor necessary to the proper discharge of that employment; (3) the time consumed on the matter in dispute; (4) the professional ability, experience, and reputation of the attorney performing the services; (5) the weight of his responsibility; (6) the measure of success achieved; (7) any reasonable expenses incurred in the representation of a client; and (8) the fee customarily charged in the locality for similar services. Moreover, the trial court in determining a reasonable attorney’s fee may rely on opinion evidence of experts on the subject of fees, and its own knowledge and experience as to the value of the services performed. Likewise, the earning capacity of the parties and the financial circumstances of the husband may also be considered in establishing the amount of money to which an attorney is entitled for his services.”

Lochridge, at 380 (Citations omitted).

In the ease at bar, there was much evidence on this matter. Briefly, there was evidence that the husband had assets in the neighborhood of $1,100,000 and a monthly income of $4,446. There was expert testimony on the value of the legal services performed for the wife. One expert testified that $18,500 would be a reasonable fee considering all the facts and circumstances.

Given the above, we cannot say the trial court abused its discretion in awarding $12,000 to the wife for attorney’s fees. To do so would be to substitute our judgment for that of the trial court. This we cannot do. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

While it is true that most of the issues raised on modification proceedings were settled by agreement, nevertheless, the decree was modified; child support and custody were involved as well as ongoing representation stemming from the original divorce proceedings. Clearly, an award of attorney’s fees was properly within the sound judicial discretion of the trial court. Jernigan v. Jernigan, 335 So.2d 178 (Ala.Civ.App.1976).

The husband also contends in brief that the award of attorney’s fees is a violation of due process and constitutional rights. We find no merit in this contention. See Jernigan v. Jernigan, 335 So.2d 178 (Ala.Civ.App.1976). Furthermore, this issue does not appear to have been raised at trial below. Liles v. Liles, 380 So.2d 908 (Ala.Civ.App.1980).

The wife has requested an attorney’s fee for representation on appeal. A fee of $1,000 is hereby awarded.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    James R. WEAVER v. Alice Bice WEAVER.
    Civ. 4203.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Rehearing Denied Aug. 15, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1323.

      Chris S. Christ, Birmingham, for appellant.
    Billy L. Church of Church, Trussell & Robinson, Pell City, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case. The only issue on this appeal concerns the failure of the trial court to award to the husband any interest in the home used by the parties.

Under the attendant presumptions which must be accorded the trial court’s decision, the following is pertinently revealed upon that issue.

The parties married each other the first time in 1976 and were divorced in August 1980. The wife was awarded their Apple Wood home. She was ordered to pay $10,-000 to the husband for his equity in it. That payment has not been made. The husband conveyed the house to her by quitclaim deed. They resumed cohabitation in November 1980. Everyone has treated the resumption of their relationship as constituting a remarriage. They separated in January 1983. No children resulted from either of their marriages.

In 1981, the wife traded the Apple Wood house by using it as a $20,000 down payment upon a home in Springville which had a total purchase price of $75,000. The closing costs of $1,800 were paid by the wife. Title to the Springville property was taken only in the wife’s name, and she is solely responsible for the note and mortgage, upon which there is a present balance of $53,800. She has made all of the monthly payments of $578 upon that mortgage except that the husband paid for one-half of that monthly expense from November 1981 through the year 1982. During part of their second marriage he monetarily contributed towards some of the household expenses and improvements.

The husband had a poor credit rating and could not borrow from lending institutions because he had bankrupted in 1972. The wife executed a note to enable the husband to purchase a used 1977 Ford pickup truck which has a present balance due against it of $506. Additionally, the husband desired to buy a boat, and the wife borrowed the funds for its purchase for him and, upon default, she paid the balance due upon it of about $5,600. Since their second marriage, the wife made twenty-four monthly payments of $225 each on behalf of the husband which are required by court judgments for the support of his children by a former marriage.

The wife was the primary provider of money for the family during some of their first marriage and during all of their second marriage. She has worked for the same employer since the 1960’s and presently has an annual salary of $33,400. On the other hand, the husband’s employment has been sporadic at times with multiple job changes. In 1981, the husband contributed between twenty-five and thirty percent of the income of the family; however, that increased in 1982 when he earned almost $24,000. The husband had three different employers during their second marriage and was unemployed from January 1983 until their divorce in September 1983. Husband disputes portions of this summary of the evidence.

After an ore tenus trial, the circuit court divorced the parties for incompatibility and awarded to the husband a 1977 Toyota automobile, the 1977 Ford pickup truck (with the husband to pay the balance of the debt against it), the pleasure boat, and various items of household furniture, appliances and accessories. The husband was divested of any right, title, claims or interest in and to the wife’s real estate. The wife received the remainder of the personal property which largely consisted of her automobile and household items. The husband appealed.

While a division of the property of the parties in a divorce case must be equitable according to the circumstances of the case, it need not be equal. Much discretion is granted to a trial court in dividing the property. Where the trial court presides over an ore tenus evidentiary divorce trial and an appeal is perfected from a final judgment, we are not allowed to change the trial court’s divisions of the property of the parties unless it was so unsupported by the evidence as to be clearly wrong. Williams v. Williams, 445 So.2d 570 (Ala.Civ.App.1984); Hale v. Hale, 439 So.2d 160 (Ala.Civ.App.1983); Taylor v. Taylor, 434 So.2d 269 (Ala.Civ.App.1983).

We have reviewed the entire record and we have studied the briefs of concerned counsel. We find no abuse of discretion by the trial court upon the issue in question. After considering the relative income and employment record of the parties, the awards of property which were made to each of the parties, the fact that the wife paid the entire financed purchase price of around $5,600 for the boat which was granted to the husband, and the payments of the support for the husband’s children which were made by the wife in the amount of $5,400, it appears that an equitable property division was effected by the final judgment. There was much credible evidence which upheld the trial court’s decision. It was neither unjust nor palpably erroneous for the trial court to fail to award to the husband either an interest in the Springville property or money from the wife in lieu thereof. The judgment of the trial court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    James WAGNON and Zera Wagnon v. Sybil Tate BOGGS.
    Civ. 3609.
    Court of Civil Appeals of Alabama.
    July 18, 1984.
    Rehearing Denied Aug. 15, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1370.

      Walden M. Buttram of Finlayson & But-tram, Gadsden, for appellants.
    J.A. Hornsby, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a child custody case.

In 1978, the juvenile court awarded to the Wagnons the temporary custody of a child. The child’s father died before that time. The mother of the child and Mrs. Wagnon are sisters. While legal proceedings occurred in the interim, in February 1982 the mother filed a petition re-seeking her daughter’s custody. The case was transferred to the circuit court, where extensive evidence was heard ore tenus before that court on at least five different occasions. The entire record consists of four volumes. On November 8, 1982, only three days after the conclusion of the presentation of the evidence, a final judgment was entered by the circuit court whereby the temporary custody of the child to the Wagnons was revoked and full care, custody, and control of the girl, who was then fourteen years of age, was restored to her natural mother. While the Wagnons perfected their appeal in December 1982, this case was not submitted to this court for our consideration until June 11, 1984. We affirm.

We only briefly summarize some of the evidence in our required effort to ascertain if credible evidence supports the trial court’s judgment.

There was evidence that the 1978 temporary custody of the juvenile court was rendered by consent and that the mother only consented to the Wagnons’ having the girl’s custody until the end of the 1978-1979 school term. The mother had moved from Gadsden to Huntsville, and the Wag-nons resided in Gadsden, where the child attended school.

After the death of the child’s father, the mother was distraught, but her life is now in good order. Since the time of the temporary order, she has remarried. Her economic situation has vastly improved, with a present family monthly income in excess of $2,000. Presently, neither she nor her husband drinks even socially. In short, there was evidence that she has rehabilitated herself and is a fit and proper mother to have custody of her daughter.

Some of the evidence was to the effect that the Wagnons neglected the child, that they did not properly supervise her, that they were very permissive, that they allowed the girl to go anywhere that she desired when she was only twelve or thirteen years of age, and that they have been a bad influence upon the child, who now tells untruths and exaggerates situations in order to gain her own way. That evidence was controverted.

The trial court allowed the child to spend all but three weeks of the 1982 summer with her mother in Huntsville. Since August 1982, the girl has attended school in Huntsville, where she excels in her work and has established new friendships. Family members testified that the child should be with her mother.

There was testimony that, since she has been in Huntsville with her mother, the daughter has adapted well, that her moods are excellent, that she is apparently happy and contented there, that they have established a mother-child relationship, and that she gets along well with her step-father. Those facts were disputed by the child, who also testified that she desired to live in Gadsden with the Wagnons.

We now. consider the applicable law. A natural parent has a prima facie right to the custody of his or her child but that right may be forfeited. A prior judgment awarding custody of a child to another rebuts any presumption which favors the natural parent and places upon the natural parent the burden of proving that a change in custody is necessary to promote the child’s best interest, which is the polestar in each case and which must be determined from the particular facts involved. While the fitness of a natural parent is a factor to be considered, it does not automatically entitle that parent to custody of the child. Simpson v. Gibson, 420 So.2d 782 (Ala.Civ.App.1982); Willette v. Bannister, 351 So.2d 605 (Ala.Civ.App.1977). These cases also re-echo the ore tenus rule that, when a trial court hears the evidence, its decision is presumed to be correct and cannot be altered upon appeal unless it was so unsupported by the evidence as to be palpably wrong.

We are fully aware that in some respects the learned trial court expressed an opinion as to the law which differed somewhat from the above. However, those expressions from the bench were made prior to the last three hearings and almost three months, before the rendition of the final judgment, which was totally silent in that regard. Accordingly, we cannot ascertain whether correct or incorrect rules of law were applied to the facts by the circuit court in deciding and rendering its final decisions. We will not guess a trial court into error under those circumstances. In any event, we will apply the above law to the facts to ascertain if the grant of custody to the mother was proper or erroneous, for if a trial court reaches a correct result, it is immaterial that a wrong reason was given or that erroneous law may have existed in the mind of the trial judge. Boyd v. Brabham, 414 So.2d 931 (Ala.1982); Gamble v. Gamble, 363 So.2d 790 (Ala.Civ.App.1978).

We have read and studied the entire record. It conflicts in many areas. The evidence was such that it would have upheld either a custody award to the mother or a judgment continuing the temporary custody in the Wagnons. The trial court, who saw and observed the witnesses, was peculiarly situated so as to resolve and determine the factual questions. The mother had apparently rehabilitated herself and presently is a fit parent. Issues as to the care and treatment of the child by the Wagnons and as to the best interest of the minor were presented by the mother’s petition for custody. Factual questions in that regard were presented by the conflicting evidence and the issues were determined by the trial court in a manner which was favorable to the mother. We are factually bound by that implied determination upon those matters. Credible evidence was presented which supported the trial court’s decisions. Tendencies of the testimony were that a material change in the circumstances of the parties had occurred Since the 1978 temporary custody order of the juvenile court and the trial court did not abuse its discretion in awarding the daughter’s custody to the mother. The trial court was not palpably wrong and we have no right to change the determination of the circuit court, for to do so would constitute an unauthorized substitution of our judgment upon contested factual matters for that of the trial court.

While we have responded to the merits of the case out of deference to most able counsel for both parties, the judgment of the trial court must be affirmed for another reason. The child testified at length on two different dates in chambers with the child, the trial judge, the court reporter, and the attorneys being the only persons present. That testimony is included in the record. However, the transcript reveals that, after much evidence had been presented, on June 1, 1982, the trial court conferred with the child in chambers and nothing about what was related to the trial court at that time by the child appears in any manner in the record. Although the girl testified in some detail on two subsequent trial dates, we cannot adjudge that the June 1, 1982, discussion with her by the trial court did not affect the final judgment. Since that evidence is not before us, we are required to presume that the missing information so gained by the trial court from the child on that occasion was sufficient evidence to sustain the final judgment. A factual conclusion reached by a trial court under those circumstances is immune from review on appeal. Ruck v. Ruck, 265 Ala. 29, 89 So.2d 274 (1956); Yates v. Yates, 428 So.2d 105 (Ala.Civ.App.1983).

The judgment of the circuit court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    M. Joel HAGLER v. Rhoda HAGLER.
    Civ. 4128.
    Court of Civil Appeals of Alabama.
    Aug. 8, 1984.
    Rehearing Denied Sept. 5, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1444.

      George E. Trawick of Trawick & Ken-nington, Ariton, for appellant.
    Bryant F. Williams, Jr., of Williams & Lanier, Ozark, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This post-divorce litigation involves the visitation rights of a father with his children who were approximately eight and eleven years of age when the last judgment was rendered in November 1983, after very extensive ore tenus testimony was heard by the trial court on several occasions.

In April 1983 the trial court had entered a judgment which established specific visitation rights of the father with the children. Thereafter, the mother and the children moved from Alabama to South Carolina, a distance of about five hundred miles.

The November 1983 judgment from which the father appeals found and provided in pertinent part as follows:

“This action is a derivative action which has been pending before the Court since October 15, 1981. Numerous hearings have been held concerning the custody of the children, visitation of the father, and the general conduct of the parties. Formal orders have been entered and various rulings from the bench have been made concerning custody, visitation and contempt. In each instance, one fact has remained constant — the children will not voluntarily visit with the father and the children will not allow themselves to be forced to visit with the father. This has been a continuing constant since October of 1981.
“The Court has done everything within its power to reconcile the feelings of the children toward the father as is evidenced by the many formal and informal rulings, some of which encompassed agreements of the parties.
“There is no question but that the constant litigation has deepened the scars and has achieved no solution to the visitation problem.
“In reviewing the testimony from the commencement of the actions which began in 1981 through this date, the Court is of the opinion, based on the attitude of the children, that it is not in the best interest of the children to be forced to visit with the father. The Court is further of the opinion, based on the attitude of the children, that it is not in the best interest of the children for the father to have custody of the children. The Court is of the opinion that it is in the best interest for the children to desire to visit with their father, and it is in the best interest of the children for both parents to work in a spirit of cooperation to establish this desire in the children. It is incumbent upon both parents to put the welfare of the children first and not to permanently scar the children psychologically by attempting to force visitation or by depriving the other parent of visitation.
“Therefore, it is ORDERED, ADJUDGED and DECREED as follows:
“1. That the continued care, custody and control of the minor children of the parties is to remain in the mother.
“2. That the mother shall allow the children to visit with the father at reasonable times and at reasonable places if the children so desire.”

Since the evidence was heard, and the witnesses were observed by the trial court, we are not permitted to alter the final judgment unless it was so unsupported by the evidence as ta.be clearly and palpably wrong, .and this court must presume that the trial court correctly applied its discretionary authority as to visitation and adjudged the best interests of the children. Fassina v. Fassina, 401 So.2d 113 (Ala.Civ.App.1981); Fillingim v. Fillingim, 388 So.2d 1010 (Ala.Civ.App.1980). “The trial court has much discretion in ascertaining visitation rights, and each case must stand upon its own peculiar facts and the personalities involved. (Citations omitted.)” Fillingim, supra, at 1011.

In this case, the passage of time, further futile experiences in attempting to enforce the judgment, and the separation of the father and the children by distance, travel time and expense have proved that the specific brief visitation periods of the April 1983 judgment had, in the opinion of the trial court, become unworkable. Hooper v. Hooper, 428 So.2d 115 (Ala.Civ.App.1983). We have studied the fine briefs of able counsel, reviewed the law cited therein and perused the four volume record; and we gather therefrom that the evidence supports the finding of the trial court in modifying the visitation rights of the father by providing for reasonable visitation.

However, that privilege was made subject to the desires of the children and that restriction has given this court considerable concern. Every factual matter as summarized by the trial court is supported by the record and by some of the conflicting ore tenus evidence, but our supreme court has determined that a proviso in a divorce decree was inappropriate which granted to a child the sole right to determine for over one-half of each month which parent should have his custody, and therein it was stated, “Thus, a decision as to what is best for the child is made by the child himself and not by the court.” Parker v. Parker, 269 Ala. 299, 303, 112 So.2d 467, 471 (1959).

The instant appeal pertains to visitation only, while the supreme court in the Parker case, supra, construed that case to concern custody itself. The present case differs vastly from Parker in that the custody limitation in Parker was in a divorce judgment, while the present parties had been in litigation for over three years over the same issue. Even when the children resided with their mother in Alabama, the father was only able to see them on rare occasions. Apparently nothing worked which a patient trial court attempted. The mother and the children each swore that she encouraged the children to visit with their father, and the trial court had the sole prerogative to believe that testimony. Both children were firm and absolute in their statements and actions since October 1981 that they did not want to, and would not, visit with their father, and the trial court was justifiably convinced by the evidence that the children were most unwilling to see their father, even if forced to do so.

There are circumstances where it is reasonable, equitable and to the best interest of children that they not be required to visit with a non-custodial parent because of their unwillingness or fear to do so. Such a determination could be made by a trial court in a case where the evidence reasonably satisfied that court that it was not in the best interest of children to be made to visit with a non-custodial parent where they were so unwilling to visit that parent that adverse psychological damage would result and that no good would result from forced visitation. However, such a case is rare and the exception, for it is an extreme decision that restricts an otherwise relatively qualified parent from visiting his or her child.

On the other hand, regardless of a child’s fears and wishes, a trial court may, and normally should, require visitation even if it is forced upon a child, for the desires of a child might be given absolutely no credence in visitation litigation when the trial court is reasonably satisfied from the evidence that a child is merely parroting the wishes of the custodial parent, or that the child is too immature to form a considered opinion, or where the child expresses fears or unwillingness to visit without any reasonable basis or foundation.

In some instances the custodial parent, in defiance of court-granted visitation rights, uses his or her position to alienate the other parent from the affections of the child, or to create fear of the non-custodial parent in a child, or by his or her words or actions actually encourages a child not to visit with the other parent. In this type case, the trial court, in the exercise of its discretion in enforcing a visitation judgment, may modify the custody provisions, extend rather than limit the visitation periods, require the posting of a bond by the custodial parent (with adequate sureties) conditioned upon compliance with the visitation order, place a guilty custodial parent in contempt of court, suspend the payment of any ordered periodic alimony pending non-compliance with a visitation judgment, or decree any other lawful means reasonably calculated to require a recalcitrant custodial parent to comply with a visitation order of the trial court.

In short, the trial court has a judicial discretion to exercise in determining the visitation rights of non-custodial parents in accordance with the best interests of the children of the parties. Fillingim v. Fillingim, supra.

In the present matter, the trial court had had before it almost continuously since 1981 the visitation problem and nothing which was attempted had been of beneficial assistance. The trial court ascertained that, under the peculiar circumstances of the case, the best interests of the two children at that time required that visitation rights be permitted “if the children so desire.” Similar provisions have been upheld in other jurisdictions in visitation cases. Strakosch v. Benwell, 135 Colo. 317, 310 P.2d 720 (1957); Kelly v. Kelly, 73 So.2d 829 (Fla.1954); Hullinger v. Hullinger, 133 Iowa 269, 110 N.W. 470 (1907); Falls v. Falls, 52 N.C.App. 203, 278 S.E.2d 546, petition denied, 304 N.C. 390, 285 S.E.2d 831 (1981); Anonymous v. Anonymous, 18 Ohio Op.2d 282, 88 Ohio L.Abs. 398, 180 N.E.2d 205 (1962).

We do not find the November 1983 judgment to be palpably wrong in view of the supportive evidence. The testimony of the witnesses conflicted and we cannot say that the best interests of the children were not served by the determination of the trial court. We are required to affirm the judgment of the trial court.

The appellee’s request for the award of an attorney’s fee upon this appeal is allowed and the appellant shall pay $500 for such.

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:
    Joseph A. CASALE v. Linda Hale DOEGE.
    Civ. 4218.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Motions for Rehearing and for Correction of Record Denied Sept. 12, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1447.

      Robert A. Wills, Bay Minette, for appellant.
    Mary Lee Stapp and Lois Brasfield, Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

This is an appeal from the denial of a motion for relief from judgment pursuant to Alabama Rule of Civil Procedure 60(b) and from the denial of a motion to set aside a writ of garnishment.

The trial court refused to set aside a default judgment rendered against the appellant, father of the child for whom the support is sought to be enforced. We affirm.

The mother filed a petition pursuant to Alabama Uniform Reciprocal Enforcement of Support Act, seeking $8,575 in child support arrearages. Thereafter, the trial court entered a judgment against the father for $8,575. The order of the trial court states that the matter was heard and that “summons was served” upon the father. Apparently, the father was not present at these proceedings.

Thereafter, a writ of garnishment was issued to the father’s employer. The father responded by filing a rule 60(b) motion. The father’s motion alleged that there had been “no service of process” perfected on the father. The father also filed a motion to set aside the writ of garnishment. This motion was bottomed on the same premise as the rule 60(b) motion.

Neither of the father’s motions was accompanied by affidavits. There was no proof offered regarding the lack of service. The record before this court in no way reveals whether or not service was accomplished on the father.

The trial court’s order denying the father’s motion is as follows: “The Motion to Set Aside the Writ of Garnishment in this cause is denied and the Motion for Relief from Judgment is denied.”

The record does contain arguments of counsel regarding insufficient service of process. However, clearly this is not proof.

Needless to say, an appellant has the burden of showing reversible error. Stathem v. Ferrell, 267 Ala. 333, 335, 101 So.2d 546, 547 (1958).

Furthermore, “[i]n order to obtain relief under 60(b), the movant must allege and prove one of the grounds set out under the rules.” Wilson v. Crosby Lumber Co., 386 So.2d 1173, 1175 (Ala.Civ.App.1980). See Raine v. First Western Bank, 362 So.2d 846, 848 (Ala.1978) (emphasis added).

In this instance, the record does not reveal reversible error and the movant has not proved error. This court cannot presume error.

Appellant argues that the default judgment was void because the pending action for reciprocal enforcement of support was dismissed prior to the default judgment being entered. The record, however, indicates motion to dismiss the reciprocity action only in Georgia. Furthermore, the record indicates that the motion to dismiss, default judgment, and writ of garnishment were entered contemporaneously.

Finally, appellant argues that writ of garnishment in Alabama is not enforceable without reducing the original child support decree of a foreign jurisdiction to an Alabama judgment. Again, we cannot determine from the record whether the trial court did or did not reduce the arrearage to an Alabama judgment.

The record reveals only that the trial court heard testimony regarding child support arrearages and entered a judgment.

We note that in view of the above we need not resolve the question of whether a foreign judgment need be reduced to an Alabama judgment prior to garnishment. However, see Ex parte Morgan, 440 So.2d 1069, 1072 (Ala.), on remand sub nom. Moates v. Morgan, 440 So.2d 1073 (Ala.Civ.App.1983).

It is the policy of this court to decide appeals on their merits whenever possible. Wesley v. Brandon, 419 So.2d 257, 259 (Ala.Civ.App.1982). However, in view of the record before this court we have no alternative but to affirm the trial court’s denial of motion for relief from judgment and denial of motion to set aside a writ of garnishment.

AFFIRMED.

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


text:
    CITY OF HOOVER and Edwin L. Sterne v. ROCKY RIDGE FIRE DISTRICT.
    Civ. 4278.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Rehearing Denied Sept. 19, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 84-33.

      Jack H. Harrison of Harrison & Jackson, Birmingham, for appellant City of Hoover.
    Edwin L. Sterne, pro se.
    Charles L. Sparks of Sparks & Henderson, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This case initially began with a suit filed in Jefferson County District Court by the Rocky Ridge Fire District against Edwin L. Sterne, seeking compensation allegedly due under the provisions of 1976 Ala.Acts 604. Act 604 was a legislative response to the significant annexations by municipalities contiguous to fire districts in Jefferson County, Alabama.

In December 1965, Ala. Const, amend. 239 (1901) was ratified authorizing the establishment of fire districts in Jefferson County, Alabama. Amendment 239 was subsequently amended by Ala. Const, amend. 314 (1901) and Ala. Const, amend. 369 (1901). These amendments, in part, prohibited a fire district from enlarging its territory into the territory of a municipality and additionally provided that the expenses of the fire districts would be paid by the proceeds of a service charge. Act 604, enacted in 1976, implemented amendment 239 as last amended. Act 604 allows either the annexing municipality or the property owners to agree to designate who will bear the ultimate liability for paying the compensation due the fire district under the act. As pertinent, Act 604 provides as follows:

“Section 1. When an entire fire district of any county having a population of 600,000 or more according to the 1970 or any subsequent federal decennial census is annexed to a municipal corporation, such municipal corporation shall assume and pay the district debt. If a portion of a fire district is annexed the municipal corporation in adopting the resolution for the annexation of such portion must agree that an amount be paid to the district equal to six (6) times the amount of dues that the portion being annexed paid to the fire district the preceding year, before the annexation can take place. The amount of money paid to the fire district may be paid by the municipality or the property owners involved in the proceedings.”

On November 24, 1979, Sterne and his wife executed an agreement with the City of Hoover, wherein they agreed to pay any compensation due Rocky Ridge under the provisions of Act 604, if their property was annexed. On June 2, 1980, Hoover annexed the property of Sterne and others without complying with the provisions of Act 604, requiring the annexing municipal corporation to agree in adopting its annexation resolution to pay the fire district “equal to six (6) times the amount of dues that the portion being annexed paid to the fire district the preceding year.

Rocky Ridge Fire District filed suit in Jefferson County District Court against Sterne seeking compensation due it, pursuant to the provisions of Act 604. The district court ruled in favor of Sterne on the basis that Hoover was primarily liable for this compensation under Act 604. Rocky Ridge appealed to the Circuit Court of Jefferson County and filed suit against Hoover, seeking compensation under Act 604. Rocky Ridge received a judgment in its favor against Hoover, and Hoover appealed to Jefferson County Circuit Court. Hoover later filed suit against Sterne based on the indemnity agreement executed earlier between Sterne and Hoover. The district court ruled in favor of Hoover, and Sterne appealed to the Jefferson County Circuit Court.

The eases were consolidated for trial in the Circuit Court and were tried ore tenus in November 1984. In March 1984 judgments were rendered in favor of Sterne in the case between him and Rocky Ridge: in favor of Rocky Ridge in the amount of $492.37 in the case between it and Hoover; and in favor of Hoover in the amount of $492.37 in the case between it and Sterne. An appeal was taken to this court in the cases of Rocky Ridge Fire District v. City of Hoover and in Hoover v. Sterne. No appeal was taken from the judgment in Rocky Ridge v. Sterne.

The essential issue on appeal is whether 1976 Ala. Acts 604 is constitutional in requiring that if a municipal corporation annexes a portion of a fire district, it must in its annexation resolution agree to pay such district the equivalent of six times the amount of dues that portion being annexed paid to the fire district the preceding year.

We note initially that a party mounting a constitutional challenge to a statute bears the burden of overcoming a presumption of constitutionality. Metropolitan Life Insurance Company v. Forrester, 437 So.2d 535 (Ala.Civ.App.1983).

“[A] State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power.” Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71, 99 S.Ct. 383, 390, 58 L.Ed.2d 292 (1978), citing, Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907). “‘The number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised rests in the absolute discretion of the state.’ 207 U.S. at 178, 28 S.Ct. at 46.” Id. at 71, 99 S.Ct. at 390.

Annexation is a government function with the authority and method granted to a city by the legislature. Sanders v. City of Tuscaloosa, 395 So.2d 86 (Ala.Civ.App.1981). Authority to annex territory and the prescribed process for annexation is a legislative function, see, City of Birmingham v. Mead Corp., 372 So.2d 825 (Ala.1979); and as such, “[0]ur inquiry is limited to the question whether ‘any state of facts reasonably may be conceived to justify’ the prescribed process for annexation.” Holt Civic Club v. City of Tuscaloosa, supra at 74, 99 S.Ct. at 392, quoting Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 732, 93 S.Ct. 1224, 1231, 35 L.Ed.2d 659 (1973).

The Alabama Legislature had the authority to empower municipal corporations to annex and also had authority to create fire districts, for such is a legislative matter. The wisdom or expediency of requiring the annexing municipality to in effect compensate the annexed fire district for its loss is not within the purview of this court’s review. Rather, in looking we find there is a state of facts which may reasonably justify the compensation required under Act 604.

Evidence was presented at trial indicating that during the year prior to passage of Act 604 Rocky Ridge lost approximately $21,000 in revenue due to the annexation of property from within its boundaries, while at the same time having a debt totaling approximately $40,000. Such loss of revenue threatens the economic stability of a fire district. The evidence revealed that a fire district must buy fire engines or pumpers and other equipment which require long-term financing arrangements. In order to properly finance the necessary equipment, a fire district needs to be able to anticipate and rely on the amount of revenue available in the succeeding years.

Hoover and other municipalities benefit from the annexation of fire districts such as in an increased population which has a direct bearing on its ability to secure better bond ratings and an increased tax base; therefore, it is not unreasonable nor unjustifiable for the legislature to require Hoover and other municipalities to help remunerate the fire districts for the losses incurred by annexation of dues-paying property within a fire district. We cannot say Act 604 is unconstitutional.

Act 604 is a constitutional exercise of legislative power and therefore Rocky Ridge is due to be paid, and based on a duly executed agreement, Sterne is bound to indemnify Hoover for the monies due.' Both decisions of the trial court are hereby affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    ALABAMA LEISURE ENTERPRISES, INC., a corporation v. MACON COUNTY RACING COMMISSION; Joyce Glass, Charles Johnson, and Otis Pinkard in their capacities as commissioners of the Macon County Racing Commission; Macon County Greyhound Park, Inc.
    Civ. 4364.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Rehearing Denied Sept. 19, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 84-30.

      William D. Hudson of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellant.
    Deborah Hill Biggers of Biggers & Big-gers, Tuskegee, for appellees.
   BRADLEY, Judge.

On July 27, 1983 the Alabama legislature, during its regular session, passed Act No. 83-575, which provided for and created the Macon County Racing Commission to regulate, license, and supervise greyhound racing in Macon County.

A referendum on the above act was held and passed in Macon County on August 23, 1983.

As mandated by section one of Act 83-575, three residents of Macon County were appointed racing commissioners on September 6, 1983.

The Commission then solicited applications for the initial license to build and operate a racing facility. The deadline for filing applications as mandated by Act 83-575 was 5:00 p.m. on October 6, 1983.

Applications were received, and on October 14, 1983 the Commission awarded a license to Macon County Greyhound Park, Inc.

Alabama Leisure Enterprises, Inc., one of the unsuccessful applicants, filed a petition for writ of certiorari and a petition for a declaratory judgment in the Macon County Circuit Court against the Macon County Racing Commission and its individual members and Macon County Greyhound Park, Inc., the successful applicant. This action was consolidated with a petition for mandamus filed by the Macon County Development Corporation, another unsuccessful applicant.

The Commission and its members filed a motion to dismiss, which was denied, and an answer. Greyhound Park filed an answer and a counterclaim. Trial was held on December 15, 1983 and a judgment was rendered in favor of the defendants on all issues. Alabama Leisure appeals.

After the appeal was perfected Greyhound Park moved that the appeal to this court be dismissed. The principal grounds for dismissal are that the jurisdiction of the trial court was never properly invoked because no writ was ever issued to the Commission and no return was made by the Commission, and that a declaratory judgment petition in this case was improper.

Considering that aspect of the motion relating to declaratory relief, we note that under the Alabama Declaratory Judgment Act, sections 6-6-220 through 6-6-232, Code 1975, such relief can be afforded only where “justiciable controversy” exists.

It is argued that Alabama Leisure did not seek the resolution of a “justiciable controversy,” but, instead, sought to overturn the Commission’s award of a license to Greyhound Park. Hence, the trial court erred in hearing and deciding the petition for declaratory relief.

The facts in the present case are very much like those in the case of Mitchell v. Hammond, 252 Ala. 81, 39 So.2d 582 (1949), and we, therefore, consider the decision in the Mitchell case to be dispositive of this case. In Mitchell, supra, the court held that it is true that controversies to which the legalities of action of public officials or agencies challenged by parties whose interests are adversely affected is a favored field for declaratory judgments; however, to use the procedure as in the nature of appellant review of such an official action is improper. The question in Mitchell, just as the one in the case sub judice, had already been adjudicated by the head of the department having jurisdiction of the subject matter and the parties.

The Mitchell court further noted that declaratory judgment is proper in an effort to have an official act interpreted, not to have the act rescinded or reversed. In the present case Alabama Leisure argues that the Commission should not have granted the license to the Macon County Greyhound Park. The Commission reviewed the granting of the license and found that it had been properly granted. Therefore, Alabama Leisure is merely seeking a reversal of the Commission’s decision, which is not a proper question for declaratory relief. Mitchell, supra.

Since the declaratory judgment proceeding was not the proper way to obtain relief in the present case, we must determine whether Alabama Leisure had properly presented its questions for review by way of the writ of certiorari. Therefore, in the case sub judice, the trial court was limited in its review to the record from the Commission, and the taking of testimony was improper. Accordingly, this court may review only that which was properly before the trial court: the Commission’s record.

We would also observe that in a certiorari proceeding the trial is not de novo but on the record, and the only matter to be determined is the quashing or affirmation of the proceedings brought up for review. Jefferson County v. Berkshire Development Corp., 277 Ala. 170, 168 So.2d 13 (1964).

Greyhound Park argues that the trial court was without jurisdiction to entertain and decide the certiorari proceeding because no formal writ was issued by the court to the Commission directing the Commission to send up the record made by the Commission and no return was made to the court by the Commission. Greyhound Park relies on the case of Hooper v. Town of Albertville, 16 Ala.App. 482, 79 So. 156 (Ala.Ct.App.1918), wherein the court said:

“So far as this record shows, no writ of certiorari was ever issued, and if such writ was issued, and return thereto made, the return is not transcribed in the record, or is so transcribed that it is impossible to distinguish the return from the exhibits to the petition — tell where one ends and the other begins. The issuance of the writ of certiorari and the return thereto is essential to the jurisdiction of the court to review the proceedings assailed in the petition. The practice in such cases is clearly stated in St. John v. Richter, 167 Ala. 656, 52 South. 465, and Independent Pub. Co. v. Amer. Press Ass’n, 102 Ala. 475, 15 South. 947. With the record in the condition above indicated, the case is not so presented as that the judgment and proceedings of the trial court can be reviewed, and a judgment will be entered here dismissing the appeal.
“Appeal dismissed.”

We do not consider Hooper applicable to the present case.

Section 6-6-640, Code 1975, provides in part as follows:

“(a) All applications for mandamus, prohibition, certiorari ... shall be commenced by a petition, verified by affidavit, in which the facts shall be stated as briefly and succinctly as the case will admit of, and any defendant may answer as to all such matters as may be necessary to his defense; any of the pleadings in such proceedings may be amended as often as occasion may require to attain the ends of justice and by striking out parties and adding new parties; and upon the issues thus presented, the court shall award the relief, if any, to which the petitioner is entitled.”

Alabama Leisure filed a petition for the writ of certiorari, which was ultimately verified, setting out its complaint against the Commission for issuing a license to Greyhound Park. An answer was filed by both the Commission and Greyhound Park and as part of the answers copies of most of the record made by the Commission were filed with the trial court.

Although no formal writ of certiora-ri was issued by the trial court and no formal return thereto was made by the Commission, nevertheless, there was a petition filed setting out the relief sought and there were answers filed which included the pertinent parts of the record made by the Commission. We conclude, therefore, that the essentials of the certiorari proceeding required by section 6-6-640 were met and that the trial court thereby had the authority to proceed to a decision on whether to grant or deny the relief sought by Alabama Leisure.

The trial court held for the defendants on all issues, in effect quashing the writ. We hold that the trial court properly considered the petition for certiorari, and overrule the motion to dismiss.

We come now to the merits of the appeal and we believe the dispositive issue presented by Alabama Leisure is whether the Commission acted arbitrarily and capriciously in granting the license to Greyhound Park.

In the case of Little Caesar’s, Inc. v. Alabama Alcoholic Beverage Control Board, 386 So.2d 224 (Ala.Civ.App.1979), rev’d on other grounds, 386 So.2d 228 (Ala.1980), we said that:

“[JJudicial review of administrative acts and decisions is limited in scope, and ordinarily the courts will only pass on the questions of whether the administrative agency has acted within its constitutional or statutory powers, whether its order or determination is supported by substantial evidence, and whether its action is reasonable and not arbitrary....
“A court may not set aside an order of a fact-finding administrative body, acting within the field of its designated powers, unless such order is illegal, capricious, or unsupported by evidence....
“[Wjhen proceedings of an inferior tribunal are reviewed on common-law writ of certiorari, the order of the inferior tribunal should be sustained if there is any substantial or legal evidence to support the order.”

The evidence gleaned from the record made by the Commission shows that applicants for a license were solicited by the Commission, and applications were ultimately filed with the Commission. Public meetings were held at which the application process was explained to those present and questions were answered by the Commission or its staff.

A public meeting was held on October 7, 1983 at which time the application for license were opened. On October 12, 1983 the applicants were given an opportunity to appear before the Commission and make oral presentations of their proposals and to present questions to the Commission. All applicants appeared and aired the benefits of their proposals. On October 14, 1983 the Commission met in public and awarded a license to Greyhound Park.

Act 83-575 requires that an application for a license show that the stockholders and the officers of a corporation have been residents of Alabama for five years; that the application contain the names and addresses of those stockholders plus their present business or occupation, the place where the racing meets are to be held; and that the application be accompanied by a set of plans for the facility, and proof of sufficient capitalization to construct and operate the facility. The applicant was also required to state the kind of racing to be conducted and the racing dates.

The evidence shows that Greyhound Park furnished the information required by Act 83-575 to the Commission and that the requirements of that Act were met by Greyhound Park. Consequently, we find that there was substantial evidence before the Commission to support its award of a license to Greyhound Park; that the Commission acted within its statutory powers in its award of a license; and that the Commission’s decision was not arbitrary or capricious. The trial court, in effect, found all of this to be true, and we will not substitute our judgment for that of the trial court. Hughes v. Jefferson County Board of Education, 370 So.2d 1034 (Ala.Civ.App.1979). Accordingly, we affirm its judgment.

AFFIRMED.

WRIGHT, P.J., and EDWARD N. SCRUGGS, Retired Circuit Judge, concur.

HOLMES, J., recuses himself.


text:
    Mae PALMER v. BLUE CROSS/BLUE SHIELD OF ALABAMA.
    Civ. 4180.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.
    Rehearing Denied Oct. 3, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 84-65.

      Richard A. Lawrence and Eric A. Bowen, Montgomery, for appellant.
    James H. Anderson of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an action by the insurer against the insured to retrieve insurance benefits paid under the subrogation rights of the insurance policy. For the reasons we will state, we affirm.

The facts are not in dispute. On December 12, 1982, Mae Palmer, defendant-appellant, and her husband were involved in an automobile accident. In addition to personal injuries, the appellant suffered out-of-pocket expenses and property damage. Palmer’s medical expenses and doctors’ fees were paid by Blue Cross-Blue Shield of Alabama, plaintiff-appellee, under a group plan with her employer. The total amount of medical insurance benefits paid on appellant’s behalf by the appellee totalled $2,944.05. After these benefits were paid, the appellee placed appellant on notice of its right to reimbursement from any recovery from the tortfeasor. After said notice, appellant settled her claim with the tort-feasor for $15,000.

The insurance policy contains the following subrogation clause:

“ARTICLE XY — SUBROGATION
“In states where a Participating Plan serving the area is able to administer subrogation, the provisions of the following paragraphs shall apply and shall be implemented in accordance with the Participating Plan’s local practice and any applicable state laws or regulations.
“1. To the extent that benefits are provided or paid under this Contract, the Participating Plan shall be subrogated and succeed to any rights for recovery of a Subscriber for expenses incurred against any person or organization except insurers on policies or health insurance issue to and in the name of the Subscriber.
“2. The Subscriber shall pay the Participating Plan all amounts recovered by suit, settlement, or otherwise from any third party or his insurer to the extent of the benefits provided or paid under this Contract.
“3. The Subscriber shall take such action, furnish such information and assistance and execute such papers as the Participating Plan may require to facilitate enforcement of its rights, and shall take no action prejudicing the right and interests of the Participating Plan under this Contract.”

Appellee demanded reimbursement of the insurance benefits from the proceeds of appellant’s settlement. Appellant refused and was consequently sued by the appellee. On motion for summary judgment, the trial court upheld the subrogation clause and held for Blue Cross. Hence this appeal.

At issue here is the validity of the subro-gation clause that gives Blue Cross the right to be subrogated and to the extent of benefits provided to any recovery by the insured. Blue Cross relies on Alabama Farm Bureau Mutual Casualty Insurance Co. v. Williams, 365 So.2d 315 (Ala.Civ.App.1978), and Alabama Farm Bureau Mutual Casualty Insurance Co. v. Anderson, 48 Ala.App. 172, 263 So.2d 149 (1972), for the proposition that express contractual provisions for subrogation between the insured and the insurer are valid. These cases uphold the right to reimbursement from proceeds recovered by the insured from a tortfeasor. Anderson controls under the facts presented in this case and cites with favor cases which validate just such a subrogation clause as the one at bar.

Appellant asserts that Clause # 1, which gives Blue Cross the right to be “subrogat-ed and succeed to any rights for recovery,” violates public policy and equitable considerations as an assignment of a personal injury claim and a splitting of a cause of action. The court finds this issue is impertinent to the facts at bar. Blue Cross asks only for reimbursement from proceeds under Clause # 2 of Article XV — Subrogation. A question not directly involved and not necessary to the decision need not be considered. Maddox v. Dunklin, 163 Ala. 278, 50 So. 277 (1909).

Thus we hold the subrogation agreement at bar valid under the facts of this case.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.