author: PER CURIAM.

text:
    ASSOCIATION OF ALABAMA PROFESSIONAL NUMISMATISTS, INCORPORATED, et al. v. Ralph E. EAGERTON, Jr., James C. White, as Commissioner of Revenue for the State of Alabama.
    Civ. 4259-X.
    Court of Civil Appeals of Alabama.
    April 25, 1984.
    Rehearing Denied June 6, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1038.

      Robert R. Kracke and A.H. Woodward, III of Kracke, Woodward & Thompson, Birmingham, for appellants.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Melissa C. Bowen, Asst. Counsel, Department of Revenue, and Asst. Attys. Gen., Montgomery, for appellees.
   PER CURIAM.

This is a tax case.

The appellants, the Association of Alabama Professional Numismatists, Inc., (hereafter, the Association) sought a writ of mandamus or a declaratory judgment in the circuit court, essentially to have the sale of gold and silver in the form of coins, bullion, nuggets, flakes and other forms exempted from Alabama's sales and use tax. Ala.Code §§ 40-23-2 and 40-23-61 (1975). The circuit court determined that a sales or use tax could be applied to the sale of gold and silver for investment purposes or for numismatic purposes. The Association, through able counsel who has favored this court with an excellent brief, now appeals and we affirm.

For the sake of clarity and brevity, the following is equally applicable to the use tax.

Section 40-23-2, Code of Alabama (1975), provides in part as follows:

“There is hereby levied, in addition to all other taxes of every kind now imposed by law, and shall be collected as herein provided, a privilege or license tax against the person on account of the business activities and in the amount to be determined by the application of rates against gross sales, or gross receipts, as the case may be, as follows:
“(1) Upon every person, firm, or corporation ... engaged or continuing within this state in business of selling at retail any tangible personal property whatsoever, including merchandise and commodities of every kind and character not including, however, bonds or other evidences of debts or stocks, .... ”

A “sale” under Section 40-23-l(a)(5) is defined as:

“(5) Sale or Sales. Installment and credit sales and the exchange of properties as well as the sale thereof for money, every closed transaction constituting a sale.”

In 1975, the Department of Revenue implemented Sales and Use Tax Rule G 27-936 to set guidelines for the taxing of gold. The Department also applies the rule to silver. The rule is:

“Sales of gold in coin, bullion, nugget, flake or other form to purchasers within the state are subject to the retail sales or use tax. In any form other than as a mineral in place, not yet extracted, gold is tangible personal property subject to the usual rules of taxation. Therefore, exemption is allowed only if the sale is for resale in the regular course of business or if the gold becomes an ingredient or component of a new article for sale. Sales to purchasers for investment or speculation are fully taxable and are treated as sales of coins, stamps, paintings, antiques or other valuables purchased by collectors. When applicable, the tax is measured by the full selling price without deductions for brokerage fees, service fees or premiums included in the gross price.
“Following are a few guidelines for the taxation of gold:
“(1) Gold purchased and delivered outside the state is subject to use tax at the time it is brought into the state.
“(2) Sales of gold to persons who take only a document of ownership covering gold remaining outside the state are exempt from sales and use tax.
“(3) Sales to persons who use gold in the rendition of professional or commercial services such as dentists or dental laboratories are taxable.
“(4) Agents, including gold jobbers and brokers, who sell gold at retail in their own name must collect retail sales tax thereon.”

There are two dispositive issues: (1) whether gold and silver bought and sold for investment or numismatic purposes are “tangible personal property” subject to sales and use tax and (2) whether the sales and use tax levied on gold and silver by the State of Alabama is an improper intrusion on the Federal Government’s supreme power over monetary matters.

First, we will address the question of whether gold and silver are tangible personal property when used for investment or numismatic purposes.

The Supreme Court of Alabama has defined tangible personal property as “something that can be seen, felt, handled, sold commercially and has physical substance.” State v. Advertiser Co., 257 Ala. 423, 59 So.2d 576, 580 (1952).

The evidence in the present case is that silver bullion consists of sacks of solid silver U.S. coins sold by weight, not by the face value of the coins. The price is determined by applying the price per ounce of silver at the time of the sale to the weight of the bag.

The gold and silver coins are sold as individual coins rather than by weight. However, a particular coin’s value is determined by the amount of the metal in the coin and the fluctuating price of gold and silver in relation to the value of the U.S. dollar.

Generally, these coins do not circulate as currency but are sold like other commodities, such as coal, with the idea that the coin’s value will increase. Furthermore, we are unaware of any authority in Alabama that holds coins or money are not tangible personal property. Put another way, whether the coins are considered as commodities or money, either would be tangible personal property.

Under the above facts and circumstances, gold and silver such as we are concerned with in this case are clearly tangible personal property as defined by our supreme court in State v. Advertiser Co., 257 Ala. 423, 59 So.2d 576 (1952), and therefore subject to sales and use tax.

In regard to the second issue, we find that, as far as gold and silver are concerned, the operation of the sales and use tax laws and regulations is not an improper intrusion on the Federal government’s authority nor does it confilct or interfere with federal regulation of monetary matters.

The Association advances three basic areas where it contends the state improperly intrudes on the federal government’s plenary power over monetary matters.

The first two areas are closely related in that both concern the federal government’s supremacy in matters involving imports and exports.

The Association contends that Alabama’s sales tax on gold and silver bullion, coins, etc.’ improperly interferes with foreign commerce and further that it violates the General Agreement on Tariffs and Trade of which the United States is a subscriber.

Both of these areas are matters involving essentially “imports and exports.” Where commerce with foreign nations is involved, imported goods or products can be taxed by the states when the imported product has lost its distinctive character as an import. Low v. Austin, 13 Wall. 29, 80 U.S. 29, 20 L.Ed. 517 (1871). In the present case there is no evidence that the State of Alabama has sought to tax any foreign gold or silver before it has lost “its distinctive character as an import.” The statutes and regulation only levy a tax on these items after the coins have entered Alabama and become part of domestic commerce.

The General Agreement on Tariffs and Trade, 61 Stat. A 11 (1947), prohibits discriminatory treatment of exports and imports between the signatory nations. The Association contends that Alabama is discriminating against foreign coins imported into the United States in that it taxes the sale of these coins but not the sale of gold medallions minted and sold by the United States. This contention is without merit.

Initially, gold medallions minted and sold by the United States are not subject to state sales tax. It is axiomatic that the states cannot impose a sales tax on sales by or to the United States Government. U.S. Const, art. VI; Code of Alabama § 40-23-4(17) (1975). The same is true of foreign coins while they still' retain their distinctive character as imported goods. Low v. Austin, 13 Wall. 29, 80 U.S. 29, 20 L.Ed. 517 (1871). However, subsequent sales of the United States medallions in which the United States is not a party are taxed by the state if all other conditions of the statute are met. Likewise, the sale of foreign coins is taxed once they have entered domestic commerce and are no longer “imports” as indicated previously. Thus, there is no discrimination and no violation of the General Agreement on Tariffs and Trade.

More to the point, the General Agreement on Tariffs and Trade covers “customs, duties, charges of any kind related to importation/exportation or international transfers of payments connected to imports/exports.” (Emphasis supplied.) As discussed above, the Alabama sales tax is not related to imports/exports. Therefore, the sales tax does not violate the General Agreement on Tariffs and Trade. In fact, it appears that the General Agreement on Tariffs and Trade is not at all applicable to this matter.

Lastly, the Association contends that the state’s sales tax improperly intrudes on Congress’s power to “coin money, regulate the value thereof, and of foreign coin_” U.S. Const, art. I, § 8. Essentially, the question we are concerned with is whether the sales tax imposed by Alabama on foreign and domestic gold coins regulates the value of money. We hold that a sales tax in this particular instance does not regulate money.

Section 5154, 31 U.S.C.A. (West 1983), gives the states authority to tax United States coins and currency as money on hand or on deposit. Furthermore, whether foreign or domestic coins are concerned, the sale is the transaction being taxed, not the money. We fail to see how this regulates the value of money. It certainly affects the price of money or coins as they are bought and sold; however, this does not mean that the value is being changed.

In view of the foregoing, we find that gold and silver used for investment and numismatic purposes within this state are tangible personal property subject to sales and use tax in Alabama. Furthermore, such a tax is a proper exercise of state power that does not interfere with or intrude on federal authority. The pertinent statutes and regulation seek only to tax sales within the state or items brought into the state for investment or numismatic purposes.

This case is due to be and is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: EDWARD N. SCRUGGS, Retired Circuit Judge. EDWARD N. SCRUGGS, Retired Circuit Judge.

license: Public Domain

text:
    William H. PETTY v. Carolyn H. PETTY.
    Civ. 4242.
    Court of Civil Appeals of Alabama.
    June 6, 1984.
    Rehearing Denied July 11, 1984.
    Certiorari Denied Sept. 21, 1984 Alabama Supreme Court 83-1189.
    Benton H. Persons, of Murphy, Murphy & Persons, Andalusia, for appellant.
    Griffin Sikes, of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is post-divorce litigation.

The former wife sought to place the former husband in contempt of court for failure to pay certain items which were required to be paid under the terms of their July 1980 divorce judgment. By his testimony the husband admitted to being delinquent for the months of November and December 1983 in his periodic alimony payments of $200 per month, in his required house payments of $310 each month, and in the payment of insurance premiums of $60 monthly. He further stated that he had not paid the child support of $150 for the month of December 1983. His evidence was directed towards his inability to make those payments, a complete defense to contempt proceedings. Williams v. Stumpe, 439 So.2d 1297 (Ala.Civ.App.1983).

He is presently forty-one years of age. The former husband was current in his divorce judgment obligations when he retired on November 1, 1983, after twenty-one years of service in the U.S. Army. His monthly income then was reduced from $1,600 to a net of about $750. Since his retirement, his only source of income was from his Army retirement although he stated that he operates, without pay, a small cafe for his ill mother. However, he has plans to do something else which was not revealed by his testimony. The former husband testified that his personal expenses almost equal his retirement pay. He has remarried and his present wife works short weeks making from $40 to $60 weekly. Only two months and five days separated his retirement and the trial of this case.

The former wife presently has the same employment as when the divorce was rendered. The parties are still the joint owners of their former home where the former wife and the children still reside. Since his retirement, the former husband purchased a $21,000 house, having financed all of the purchase price.

The aboye constitutes a summary of the evidence which was offered at the trial.

The trial court adjudged the former husband to be in contempt of court for the deficiencies as admitted by him in his testimony, and he was ordered incarcerated in the county jail if he thereafter failed to make the required current payments and if he did not purge himself from contempt by making purge payments as therein specified. The former husband appealed and his former wife has moved to dismiss the appeal since appeal is not the proper remedy to review contempt proceedings. However, we opt to treat the appeal as being certiora-ri proceedings and overrule the appellee’s motion to dismiss the appeal. Murphy v. Murphy, 395 So.2d 1047 (Ala.Civ.App.1981).

In a review of this matter, we only look to the evidence to ascertain if any part of the testimony or any reasonable inference therefrom supports the holding of contempt. Brady v. Brady, 358 So.2d 744 (Ala.Civ.App.), cert. denied, 358 So.2d 748 (Ala.1978). Here, the former husband is forty-one years of age, is apparently in good health, has a monthly net retirement income of about $750, and has undisclosed future income plans. He has remarried since the divorce. He purchased a home after his retirement. He still owns a one-half interest in the home of these parties. Other than his equity in the houses of his present and former marriages, there is no evidence in the record of the existence or non-existence of cash, bank accounts, savings, notes receivable, stocks, bonds, real estate, vehicles, choses in action, personal property, or other assets of any nature owned by him. Evidently, he paid his personal bills during the two-month period in question. Except for his present house payments of an undisclosed amount and except for his divorce obligations, there was no evidence of any other indebtedness owed by him. Neither were his expenses established. In short, the state of the evidence was such that the trial court could have readily concluded that the former husband had not proven a lack of financial ability to pay. The trial court did not err in the contempt adjudication. Dawson v. Dawson, 453 So.2d 1054 (Ala.Civ.App.1984); Brady v. Brady, 358 So.2d 744 (Ala.Civ.App.), cert. denied, 358 So.2d 748 (Ala.1978).

The former husband had first sought a reduction in his periodic alimony-payments of $200 each month since his retirement had reduced that source of income by approximately fifty percent. The circuit court determined that the husband was not entitled to a reduction in alimony because he was in contempt of . court for failure to comply with the provisions of the divorce judgment.

The law upon that issue was summarized most aptly as follows:

“The equitable principle of ‘clean hands’ or that of ‘he who seeks equity must do equity’ is still appropriately viable even though the forms of common law equity actions have been deleted from practice. Cone v. Cone, 331 So.2d 656 (Ala.1976). It has been said that the application of the ‘clean hands’ doctrine is a matter peculiarly within the sound discretion of the trial court. Carter v. Carter, 282 Ala. 239, 210 So.2d 800 (1968). It may be applied by the court in eases seeking reduction of alimony. Bergwardt v. Bergwardt, 257 Ala. 288, 59 So.2d 81 (1952).”

Adams v. Adams, 368 So.2d 552, 553 (Ala.Civ.App.1979).

While other judges, in the exercise of that discretion, might have modified the periodic alimony payments because of the former husband’s changed circumstances, we do not find that the trial court erred in this case by the discretionary application of the clean hands doctrine.

We affirm.

The appellant shall pay $350 to the appel-lee as an attorney’s fee upon this appeal.

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.

ON REHEARING

EDWARD N. SCRUGGS, Retired Circuit Judge.

In his application for a rehearing the former husband takes exception to the summary of the evidence as related in the original opinion in two respects. First, we stated that his current wife works short weeks making from $40 to $60 weekly. The former husband contends that he testified that she was unemployed at the date of the trial. Second, we related that his ex-wife presently has the same employment as when the divorce was rendered, but he contends that we were incorrect and that his testimony was that, at the time of the original divorce, his former wife was unemployed.

We settle any misconception as to the testimony of the former husband upon those two items by quoting the following from his testimony:

“Q. Does your new wife have any income?
“A. Well at one time she was working over at the Red Level and she got laid off over there.
“Q. Where was she working?
“A. At Judy Bond’s plant over there.
“Q. And she has been laid off?
“A. Yes sir, she was laid off. Now she is getting on at Dozier.
“Q. Has she started back to work?
“A. Yes sir, she makes basically — you see, she has no experience in working or anything like that. And up there they work a day and they’re off a day; they work a day, they’re off a day. And she makes basically anywhere from forty to sixty dollars a week.
“Q. Now when this divorce was originally granted in this court, was your ex-wife, Carolyn Petty, was she working at that time?
“A. At that time I think she was going to work or she was working, I can’t recall at the time.
“Q. Do you recall if she is working today?
“A. At the time we separated she wasn’t working. At the time the divorce was granted she was working.
“Q. She is working now?
“A. Yes, she [is] working now. The same place she was working when the divorce was granted.”

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Billy MILLER v. LARRY SAVAGE CHEVROLET, INC.
    Civ. 4114.
    Court of Civil Appeals of Alabama.
    June 27, 1984.
    Rehearing Denied Aug. 1, 1984.
    Certiorari Denied Sept. 21, 1984 Alabama Supreme Court 83-1282.

      J. Robert Miller, Huntsville, for appellant.
    James T. Baxter, III, of Berry, Abies, Tatum, Little & Baxter, Huntsville, for ap-pellee.
   BRADLEY, Judge.

Billy Miller went to Larry Savage Chevrolet, Inc. (hereinafter Larry Savage) on November 5, 1982 for the purpose of trading his 1979 Chevrolet truck for a 1981 four-wheel drive Datsun truck. On that same date Mr. Miller received from a Larry Savage salesman the retail purchase contract, plaintiffs exhibit 3, which showed that the sales price of the 1981 Datsun truck was $9,668. The value of the trade-in of the 1979 Chevrolet truck was $6,370, of which Mr. Miller owed the sum of $2,325.03. After subtracting the amount necessary to pay off the 1979 Chevrolet truck traded in, a new equity was allowed to the plaintiff in the amount of $4,044.97.

The remaining amount to be financed was in the amount of $5,623.37. This amount was to be financed through General Motors Acceptance Corporation. Mr. Miller was informed that it would be necessary for him to have insurance on the 1981 Datsun truck, and Mr. Miller desired for the insurance to be placed with an insurance agency known as the Insurance Market. Mr. Miller was informed that this insurance would cost $315, to be paid in three $105 installments. Mr. Miller told Larry Savage that he did not have the money to pay for the required insurance. Larry Savage in turn told Mr. Miller they would pay the first $105 installment by financing the same or adding the amount to the purchase price of the truck. This amount became a part of the purchase price and was included in plaintiffs contract.

Mr. Miller returned the following day, November 6, 1982, and consummated the sale by signing all of the documents and contracts. On this same date Mr. Miller was informed by Savage’s credit manager that the amount of $105 would be sent to the insurance company. Additionally, he was assured that on that particular day he had insurance in effect.

Mr. Miller left with the 1981 Datsun truck on November 6, 1982, and on November 11, 1982 he received a call from Larry Savage informing him that he needed to go by the Insurance Market and fill out the insurance application. Mr. Miller went by the Insurance Market on November 11, 1982, filled out the insurance application, and was informed that he did not have insurance in effect because Larry Savage had not sent the check. On the same day Mr. Miller returned to Larry Savage and told a salesman what he had been told at the Insurance Market. The salesman, Mr. Johnson, informed Mr. Miller that the check had been sent and that he did in fact have insurance on the truck.

On November 14, 1982 Mr. Miller was involved in an accident with the 1981 Dat-sun truck and it was severely damaged. The truck was taken to Larry Savage where Mr. Miller was informed that he did not have insurance on the truck because Larry Savage had never mailed the check. Mr. Miller never received any type of insurance payment or coverage from any company, including Larry Savage.

Mr. Miller commenced suit by filing a complaint in two counts, one count alleging breach of contract or agreement, and the second count alleging fraud.

Larry Savage denied the allegations and asserted that (1) Mr. Miller was guilty of contributory negligence, (2) the actual cash value of the truck financed was $5,623.34, which was paid by Larry Savage to General Motors Acceptance Corporation, (3) Mr. Miller had not been damaged, and (4) Mr. Miller had no true “equity” in his traded in vehicle.

The evidence at trial showed that Miller had an equity in the truck of $4,044.97 and that the reasonable rental value of a replacement truck would be $24 a day for a period from the date of the accident to the date of trial, or about ten and one-half months, i.e. November 14, 1982 to October 3, 1983, or about $7,300.

The case was submitted to the jury on both counts of the complaint and a general verdict was returned in the amount of $7,587.66.

On October 7, 1983 Larry Savage filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, which alleged that the verdict of the jury was contrary to the great weight and preponderance of the evidence and was not supported thereby. Other grounds set forth in the motion stated that the amount of the judgment was excessive and was contrary to the law and evidence.

Without setting a date for a hearing, the court, without stating the grounds, granted the motion and restored the case to the docket for a new trial.

On December 6, 1983 Mr. Miller filed notice of appeal from the order granting new trial.

The issue here is the validity of the order granting the new trial. It is settled in Alabama that when a trial court grants a motion for new trial without specifying grounds therefor, and one of the grounds in the motion is that the verdict is contrary to the evidence, the appellate court will presume that the trial court granted a new trial because it concluded that the verdict was contrary to the great preponderance of evidence or was unjust in light of the evidence. Loyd v. Central Bank, 405 So.2d 147 (Ala.Civ.App.1981). Moreover, the verdict of the jury is presumed to be correct and should not be set aside unless it is against the preponderance of evidence or is clearly wrong and unjust. Palmer v. Palmer, 390 So.2d 1050 (Ala.1980).

Since no grounds were stated in the court's order for new trial, this court is required to review only the question of whether the jury’s verdict was supported by a preponderance of the evidence. Loyd, supra. Clearly, the representations which were made by Larry Savage to Mr. Miller constituted fraud because Miller was assured that a check had been mailed to the Insurance Market and that insurance was in fact in existence. Moreover, Mr. Miller was damaged by this misrepresentation in that he failed to obtain insurance on his truck elsewhere.

Since we find that the jury’s verdict regarding liability was supported by the evidence, we must now consider whether the amount of the judgment was proper.

The trial judge instructed the jury that if they were reasonably satisfied that the plaintiff had suffered from a misrepresentation on the part of the defendant “then the measure of damages is such sum as would place the injured party in the same position he would have occupied had the misrepresentation been true.”

We consider such an instruction to mean that plaintiff should recover those damages that would have been recoverable had he been covered by insurance. Whether such an insurance policy would have included a requirement for the payment of a rental vehicle is, of course, purely speculative. However, in view of the evidence, the jury could have inferred that the cost of a rental vehicle was a necessary part of the damage suffered by Miller. The jury has the duty to apply the law as given to it by the trial court to the facts in the case. Raines v. Williams, 397 So.2d 86 (Ala.1981).

Evidence was admitted without objection that the reasonable cost of a rental truck was $24 per day since the wreck. This would amount to a little over $7,300. When this amount is added to the amount of Mr. Miller’s equity of $4,044.97, plus $212.36, which is interest at the rate of six percent from the date of the accident, we come up with a total amount of $11,556.97. This amount of proven damages is in excess of the jury verdict of $7,587.66.

A new trial should be granted only when the jury verdict is against the great preponderance of the evidence. Matthews Brothers Construction Co. v. Lopez, 434 So.2d 1369 (Ala.1983). In the case sub judice the jury’s verdict is clearly within the limits of the evidence relating to the amount of damages suffered by Miller. Accordingly, the verdict is not against the great preponderance of the evidence and the trial court erred in setting it aside.

The judgment of the trial court is reversed and the cause remanded for the reinstatement of the verdict and judgment of $7,587.66 previously rendered.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    Tommy EDDY v. Jean E. LYLE, et al.
    Civ. 4282.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Rehearing Denied Aug. 1, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1261.
    Sherman B. Powell, Jr. of Powell & Powell and J. Tilden Dillard, Decatur, for appellant.
    Jack Caddell, Decatur, for appellee.
   HOLMES, Judge.

This child custody case involves the same issue resolved in our recent decision of Davis v. Sparks, [Ms. May 30, 1984] (Ala.Civ.App.1984). That issue is whether the circuit court’s original jurisdiction encompasses an action by a putative father to determine the paternity of an illegitimate child.

In his complaint plaintiff, Tommy Eddy, alleged that he is the father of Christy Lee Lyle, a minor child born to defendant, Jean E. Lyle, on February 24, 1980, and that Ms. Lyle was not married at the time that Christy was born. He also alleged that since the child was born, he has visited her, claimed her as his own, and contributed to her support.

Presently, the child is in the custody of her maternal grandmother, who, according to the plaintiff, has on several occasions threatened to not let him see Christy anymore. Plaintiff asked the court to order a blood test, adjudge him to be the natural father of Christy/ and to award him either custody or specific visitation rights.

On March 3, 1984, the trial court dismissed the plaintiff’s action, giving as its reason “that the application by a putative father to recognize or legitimate a child born out of wedlock is not within the original jurisdiction of the Circuit Court.” Subsequently, on May 30, 1984, in the Davis v. Sparks decision, in an opinion issued on rehearing, our distinguished colleague Judge Scruggs made the following observation:

“A recent addition to the Alabama Code confers concurrent jurisdiction in paternity actions upon juvenile courts, district courts, and circuit courts. § 38-10-7, Code 1975. This was a circuit court case. It was filed in a proper forum.”

On the basis of this authority, the decision below is due to be reversed.

The appellee has requested an attorney’s fee for representation on appeal. The request is denied.

REVERSED AND REMANDED.

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

ON REHEARING

HOLMES, Judge.

In her application for rehearing appellee, Jean E. Lyle, through able and distinguished counsel, contends this court erred when it construed section 38-10-7, Ala. Code (1975), to allow the commencement of this action in circuit court. Appellee in part contends such construction dilutes and negates the intent of the recently enacted Alabama Uniform Parentage Act.

The Alabama Uniform Parentage Act, which did not become effective until after this suit was commenced, requires in section 10(a) that cases under the Act be brought “in the juvenile or family court division of the district or circuit court .... ” Under section 22 of the Act, any earlier laws or parts of laws in conflict with the Act are expressly repealed. Accordingly, our construction of section 38-10-7 cannot be said to dilute or negate the Act because in future cases governed by the Act, any earlier inconsistent code sections will be treated as repealed by section 22.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

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


author: HOLMES, Judge.

text:
    Lola WATFORD v. HOME INSURANCE COMPANY and Stillman College.
    Civ. 4224.
    Court of Civil Appeals of Alabama.
    Aug. 1, 1984.

      Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    B. Wayne Randall of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   HOLMES, Judge.

Home Insurance Company and Stillman College, the appellees, filed suit seeking a declaratory judgment to determine who was entitled to certain workmen’s compensation death benefits.

The appellant, Watford, claimed entitlement on the grounds that she had been the deceased’s common-law wife and is now his widow. The Circuit Court of Tuscaloosa, after an ore terms hearing, found that a common-law marriage had not existed between the deceased and Watford and, therefore, Watford was not entitled to receive workmen’s compensation benefits. Watford through able counsel now appeals. We affirm.

The dispositive issue is whether there is evidence to support the trial court’s actions.

“To constitute a common-law marriage, there must be a present agreement or a mutual understanding to enter into the marriage relationship; the parties must be capable in law of making the marriage contract; and there must follow cohabitation as husband and wife and a public recognition of that relationship.” Walton v. Walton, 409 So.2d 858, 860 (Ala.Civ.App.1982).

In the present case the deceased started living with Watford sometime before his divorce from another woman. The deceased lived continuously with Watford from somewhere around 1975 until his death in 1983.

The following testimony from Watford, while revealing admirable candor and honesty, also supports the trial court’s conclusion that Watford and the deceased were not common-law wife and husband.

“Q Well, he proposed to you one time and you rejected his proposal, didn’t you?
“A He proposed to me more than once.
“Q But whether he proposed to you one time or a hundred times, you never accepted his proposal, did you?
“A I wasn’t ready to get married.
“Q You were not ready to get married.
“A No.”

Viewing the record with the attendant presumptions accorded the trial court’s action, the above clearly supports the trial court’s conclusion that the necessary elements constituting a common-law marriage were not present. In particular, there was a lack of a present agreement or a mutual understanding to enter into the marriage relationship.

We further note that the deceased and Watford used their individual names. The deceased also listed himself as single on his employment records approximately a year before his death. It was the deceased’s ex-wife’s understanding that the deceased was only “boarding” at Watford’s.

Watford also expressed a reluctance to marry the deceased until he had established himself in a full-time job, and that the deceased had only been employed for a year before his death and she did not consider him “established.”

Clearly, at least Watford, if not the deceased as well, lacked the intent to enter into a permanent, legally-binding relationship. Simply put, the evidence supports a conclusion that there was not a present agreement to enter into a marriage relationship with the attendant ramifications.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Duane W. PARKER and Judy Parker, individually and d/b/a Parker’s Garage v. Max ADAMS.
    Civ. 4216.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    C.H. Espy, Jr. of Farmer, Price, Espy & Smith, Dothan, for appellant.
    Jere C. Segrest of Hardwick, Hause, Seg-rest & Northcutt, Dothan, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a detinue action.

We limit a summary of the facts to only that personal property which was awarded to the plaintiff by the final judgment and to the issues presently before us.

In 1977 the defendants executed a security agreement and promissory note in order to evidence and to secure a loan of $11,043 made to them by a bank. They granted to the bank a security interest in certain personal property which was used as collateral for the loan. The property consisted of a truck, tools and equipment in the defendants’ garage and service station business, and certain household goods and furniture consisting of a stove, a dining room suite, a washing machine, two bedroom suites, and a living room suite. The note contained the usual provision whereby the defendants waived all rights of exemptions under the laws of Alabama as to personal property as against the payment of the debt. Payment of the note was guaranteed by the endorsement of the plaintiff. The note was renewed by the defendants on two subsequent occasions but, eventually, the plaintiff was required to pay to the bank the balance in full due upon the note. Upon that payment the bank assigned, in writing, the security agreement and notes to the plaintiff. Upon the failure of the defendants to surrender the property in question to the plaintiff, the detinue action ensued. The defendants’ answer asserted their claim that those items were exempt to them by a code section which states:

“(a) No waiver of exemption in any written instrument shall be held to apply to or include or authorize the levy of an execution or attachment on any of the following property for any debt contracted:
“(1) Cooking utensils, cooking stoves, table, tableware, chairs, bed and bed clothing in actual use by the family;
“(2) Wearing apparel;
“(3) A vehicle used by and essential to the debtor’s business;
“(4) Tools used personally by and essential to the debtor’s business;
“(5) The library of the debtor.
“(b) Any levy upon such property is absolutely void.”

§ 6-10-126, Code 1975.

There was evidence that the furniture and household goods were used by the defendants for family purposes and that the truck and tools were used by Mr. Parker in his trade as a mechanic.

After an ore tenus trial before the trial court, the final judgment of February 14, 1984 awarded the possession of the disputed property to the plaintiff. The trial court expressly held as follows:

“(2) That the claim of exemption by the Defendants, Duane W. Parker and Judy Parker individually and doing business as Parker’s Garage, pursuant to sec 6-10-126, Code of Alabama, 1975, is not a valid claim as to the specified property given as security on the promissory note under the security agreement therein to Headland National Bank. Sec. 6-10-126 provides that no waiver of exemptions in any written instrument shall be held to apply to or to include or authorize levy of an execution or attachment on certain items of personal property for any debt contracted. Such does not preclude the giving of such personal property as security for a debt and the enforcement of the [collection] of such debt against those items of personal property which were given as security.”

The defendants have appealed and argue through their able counsel that, notwithstanding their granting of a security interest in and to the property as collateral for the loan, the provisions of section 6-10-126, Code 1975, negated that security interest, that such code section bars the enforcement of any such debt against the items of personal property with which we are presently concerned and that additional exemption rights are provided by section 6-10-126, Code 1975, to debtors above and beyond the exemption limits for personal property as granted by section 6-10-6, Code 1975. We agree with the trial court and affirm.

Had a security interest in personal property not been granted to the payee, and had a monetary judgment only been rendered against the defendants, a levy of execution upon any item belonging to the defendants which is enumerated in section 6-10-126 would have been void and the waiver of personal property exemptions as were contained in the notes would have had no application as to such statutory listed personal property because of the exact terms of that code section. However, a security interest in these particular items was expressly granted by the defendants to the payee by the very terms of the security agreement and the provisions of section 6-10-126 do not here apply as to the subject property. That code section does not preclude the enforcement of a security interest as against those items of personal property which were expressly given and pledged by the defendants as collateral to secure this indebtedness.

Under the defendants’ position, it would be almost impossible for an individual to purchase a vehicle or tools and to borrow money and grant a security interest against that property if it was then used, or would be used in the future, in his business. Likewise, many people would experience much difficulty in obtaining financing for the purpose of purchasing, or borrowing against, either a library (professional, trade, or personal) or “cooking utensils, cooking stoves, table, tableware, chairs, bed and bed clothing in actual use by the family.” We do not deem that such results were intended by the legislature.

A thorough study of section 6-10-126 has convinced this court that it should not be viewed as an exemption statute, but as a statutory limitation upon the remedy of the levy of an execution, or of an attachment, on behalf of a creditor who holds only a debtor’s mere unsecured waiver of personal property exemptions.

Finally, no levy of execution, nor of attachment, is involved in this case. Accordingly, there is no present field for the operation of section 6-10-126, Code 1975.

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 section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    John BEARDEN and Juanita Bearden v. David L. GOSS and Regina Goss.
    Civ. 4239.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Robert W. Hanson, Albertville, for appellants.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for appellees.
   WRIGHT, Presiding Judge.

The issue on appeal is: was it error to allow evidence of general reputation in the community for purpose of impeaching a witness in a civil case?

The credibility of a witness was permitted to be impeached over objection by evidence of the witness’ general reputation in the community. On appeal it is contended upon the basis of majority precedents in other jurisdictions, particularly Fed.R.Evid. 608(a), that we should follow these precedents and authorities.

It appears that the law in Alabama is to the contrary. In the case of Parker v. Newman, 200 Ala. 103, 109, 75 So. 479, 485 (1917), the court said:

“In civil cases especially, character evidence pertaining to the litigants is usually excluded. When, however, from the nature of the case, the character of the person is one of the many facts in issue, evidence of such fact is admissible.
"... Character evidence of a party to a litigation and character evidence of a witness for necessity are so separate and distinct that they should be carefully distinguished. Smith v. State, 72 So. 316 [197 Ala. 193]. In the former case, character is a fact in issue or an evidentiary fact to the fact in issue. In the latter case it is neither, but merely a fact which comes into the ease in a collateral way. It does not pertain to the truth or veracity of the issue being tried, but merely to the weight of the evidence of the particular witness.
“In impeaching the credibility of a witness, the inquiry is not limited to the general reputation, in the community or neighborhood in which such witness lives or is known, for truth and veracity, but extends to the witness’ general character. [Citations omitted.]”

We find that these statements from Parker v. Newman not only remain the law in Alabama, but were cited as authority by our supreme court in the case of Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala.1980). The admission of the evidence of general reputation of the witness in this case was therefore according to law and not error.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Lois G. FRAZIER, Executrix of the Estate of Joe W. Frazier v. Nellie A. FRAZIER.
    Civ. 4249.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Jake B. Mathews, Jr. of Merrill, Merrill, Mathews & Allen, Anniston, for appellant.
    Patrick P. Hughes, Anniston, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is post-divorce periodic alimony litigation.

The 1968 divorce decree ratified and confirmed an agreement of the parties whereby Mr. Frazier agreed to pay to Mrs. Frazier as periodic alimony the weekly amount of fifteen dollars, which was to be increased to twenty-five dollars a week in 1973. Social Security benefits were not mentioned in either the agreement or the decree.

Mr. Frazier was current in his alimony payments when he reached the age of sixty-five. At that time he was required to retire by his employer because of age. Thereafter, he drew his Social Security from the federal government together with $101 as monthly retirement from his employer. In September 1974, Mrs. Frazier commenced receiving Social Security benefits through Mr. Frazier’s Social Security account at the rate of $111.30 per month. Her monthly check by December 1983 had gradually increased to $266 due to periodic amendments to the Social Security Act.

Mr. Frazier made no alimony payments to Mrs. Frazier after September 1974. On November 15, 1974, Mrs. Frazier’s attorney wrote to Mr. Frazier concerning payment of his alimony arrearage since September. Mr. Frazier testified that he promptly went to Mrs. Frazier's attorney’s office and explained and discussed his recent retirement and the parties’ receipt of, or entitlement to, Social Security. When Mr. Frazier left that office, he was under the definite impression that, if that present situation was not satisfactory, the attorney would notify him. Nine years passed and he heard nothing about alimony from either the attorney or Mrs. Frazier.

In October 1983, Mrs. Frazier filed her petition to place Mr. Frazier in contempt of court for his failure to pay alimony since September 1974. Mr. Frazier’s answer included a defense that he was entitled to credit against the alimony arrearage for the Social Security payments which had been paid to Mrs. Frazier. After an ore tenus trial on December 15, 1983, a judgment was rendered which ascertained that Mr. Frazier should have made the alimony payments, and it was further decided that the fact that Mrs. Frazier received Social Security benefits had no bearing upon his alimony obligation. A judgment was rendered against Mr. Frazier for $11,975.

Since Mr. Frazier died three days after the trial, his executrix has been substituted as a party in his stead. The executrix perfected this appeal. The primary issue is whether the trial court erred in refusing to give Mr. Frazier credit against his periodic alimony arrearage for the Social Security payments which were received by Mrs. Frazier through Mr. Frazier’s Social Security account.

Periodic alimony is a debt which becomes a final monetary judgment as to past due installments. Andrews v. City National Bank of Birmingham, 349 So.2d 1 (Ala.1977). However, it was held in a child support case that an action for the collection of past due installments may be defended against by pleading and proof of a defense of payment or discharge by some means other than those expressed directly by the decree, and if “the sum directed to be paid by the father is paid by the government through social security benefits derived from the account of the father, the purpose of the order has been accomplished. The father is entitled to be credited with such payments against his liability under the decree.” Binns v. Maddox, 57 Ala.App. 230, 232, 327 So.2d 726, 728 (1976). For a recent similar holding concerning child support see Bowden v. Bowden, 426 So.2d 448 (Ala.Civ.App.1983), wherein it was stated as follows:

“The principle of all the cases cited is that the purpose of Social Security is the same as that of an insurance policy with a private carrier, wherein a parent insures against death or loss of physical ability to fulfill moral and legal obligations to dependent children. The premiums on such insurance may be said to have been paid either by the parent or by the parent and employer. The benefits of Social Security are not gratuitous. The terms of ‘insured,’ ‘insurance,’ and ‘beneficiary’ are used throughout the Social Security Act. 42 U.S.C.A. Chapt. 7.
“The Supreme Court of the United States has referred to the Social Security system as social insurance and has said the right to the benefits is in one sense earned. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).”

426 So.2d at 450. Insurance payments to a former wife may fulfill and discharge the former husband’s divorce judgment obligation to pay alimony. Swindle v. Swindle, 429 So.2d 601 (Ala.Civ.App.1983). Certiorari was denied by the Supreme Court in that case.

We cannot fathom any valid reason or reasonable logic as to why the rule of law of the Binns and Bowden cases, supra, should not apply to periodic alimony as well as to child support. One of the obvious purposes of Social Security benefits is to partially replace income which is lost because of the retirement of an employee because of age or disability. The payments substitute for income. It has been decided that, inasmuch as the amount of alimony required to be paid is determined somewhat by income, Social Security benefits should be credited in discharging an obligation to pay periodic alimony. Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963).

Mr. Frazier should have been credited upon his periodic alimony arrearage for the Social Security payments or benefits which Mrs. Frazier drew from September 1974 to the time of his death, since her benefits were derived from Mr. Frazier’s Social Security account. The learned trial court erred in its failure to allow such credits. The final judgment is reversed and this matter is remanded for the entry of a judgment consistent with this opinion.

Another issue raised by the executrix concerned Mr. Frazier’s not being allowed to testify as to what Mrs. Frazier’s attorney told him in their conversation in November 1974. Because of Mr. Frazier’s death, his lips are forever sealed upon that subject and he could not now testify. That evidentiary issue is moot.

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.

REVERSED AND REMANDED.

All the Judges concur.


text:
    David A. EVANS v. Sue S. EVANS.
    Civ. 4261.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.

      W.A. Kimbrough, Jr. of Turner, Onder-donk & Kimbrough, Mobile, for appellant.
    James D. Brooks and Patricia K. Olney of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case.

After an ore terms hearing, the trial court divorced the parties, made a division of property, and ordered the husband to pay child support and alimony.

The husband, through able counsel, appeals contending the trial court so abused its discretion in the division of property and the awards of child support and alimony as to require reversal. We find no such abuse of discretion as to require reversal and affirm.

We do not deem it necessary or prudent to set out in detail the facts surrounding the instant appeal. Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is relevant:

The parties were married over twenty years. There were two children born of the union. One child was eighteen years old at the time of the divorce and one was sixteen years old. The husband was employed by the U.S. Government and had a take home pay of approximately $2,300 a month. The wife did not work most of the marriage but had sometime prior to the divorce obtained part-time work. However, she was “laid off” prior to the divorce.

The parties during the marriage accumulated real and personal property of a value of over $250,000. In large measure these assets consisted of a home place of a value of approximately $110,000 and a bay home with a value of $60,000.

The trial court awarded the wife real and personal property of a value of over $150,-000, including the home place. The husband was awarded property (real and personal) of a value of over $100,000. Additionally, the husband was required to pay $300 per month as periodic alimony, $300 per month child support and other miscellaneous expenses.

There was also evidence that the husband was guilty of adultery.

Considering the length of the marriage, the employment history of the parties, the conduct of the parties, and the needs of the children, the trial court did not err. The following found in Shirley v. Shirley, 350 So.2d 1041 (Ala.Civ.App.), cert. denied, 350 So.2d 1045 (Ala.1977), and quoted in wife’s brief, is dispositive of this appeal.

“[W]e begin with the proposition that when a trial court renders a decree after a hearing ore tenus, such decree is presumed correct if supported by the evidence. 2A Ala. Digest Appeal & Error Key No. 934(1). Additionally, with regard to the determination of alimony, the division of property, and the amount of child support in a divorce case, such matters are within the sound discretion of the trial court and that discretion will not be reversed except for palpable abuse. Clary v. Clary, 56 Ala.App. 494, 323 So.2d 380 (1975); Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975); Pruett v. Pruett, Ala.Civ.App., 333 So.2d 580 (1976). Put another way, the amount of the awards is discretionary with the trial court, but the exercise of such discretion is judicial, must not be arbitrary, and is reviewable on appeal. Hardwick v. Hardwick, 55 Ala.App. 156, 314 So.2d 76 (1975).
“Furthermore, there are no fixed standards for determining the amount of alimony or for dividing the parties’ property. Each case must be decided on the basis of its own facts and circumstances. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969); Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475 (1975). The division of property is not required to be on an equal basis, but nonetheless must be granted upon the circumstances of the case. Walker v. Walker, 56 Ala.App. 98, 319 So.2d 718 (1975); Conwell v. Conwell, 56 Ala.App. 188, 320 So.2d 694 (1975).
“While there is no fixed standard in determining what is a proper award, factors to consider include future prospects of the parties, their ages, sex, health, station in life, how long they were married, and in appropriate cases, the conduct of the parties with reference to the cause of the divorce. Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715 (1976). It is appropriate to point out that the trial court may consider the conduct of the parties, even though the divorce was granted, as it was in this instance, on the ground of incompatibility of temperament. See Brooke, supra; and Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974).”

350 So.2d at 1043-44.

The wife has requested a fee for representation on appeal. A fee of $500 is awarded.

AFFIRMED.

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


text:
    Oleda HANDLEY v. STATE of Alabama DEPARTMENT OF PENSIONS AND SECURITY. In the Matter of Beckie Renae HANDLEY and Tammy Oleda Handley, Minor Children.
    Civ. 4286.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Frank Brunner, Cullman, for appellant.
    Mary Lee Stapp and James E. Long, Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is a case of termination of parental rights to dependent children.

After petition and hearing, the court determined two Handley children to be dependent under § 12-15-65(e), Code of Alabama 1975, and granted temporary custody to the Department of Pensions and Security (DPS) in 1977. Temporary custody remained with DPS from December 15, 1977, until the court granted a petition for disposition by termination of parental rights on March 8, 1984. From the latter order, the mother appeals, contending that such disposition order is not supported by the evidence.

FACTS

DPS first became aware of the Handley children in 1975 when it began giving supportive services to the family. The father and mother were living together at that time, but there was a need for food, clothing and shelter. After two years of such support and accumulation of reports of neglect and lack of necessities, together with allegations by the mother of possible sexual abuse by the father, the court granted DPS legal custody of the children in 1977.

The children remained in the custody of DPS until April 1988. During that time the parents divorced and the father moved away. The mother lived with another man for some two years in various places but stayed in contact with the children through visitation. She subsequently married the man with whom she had been living, but never established a suitable home or environment for the children.

Because of the marriage and attempts to establish a home for the children, DPS made a contract with the mother in January 1983 by which, if completed, the children could be returned to her. The mother complied and physical custody of the children was given to her. However, shortly thereafter, the mother and her husband separated. DPS aided in securing an apartment for mother and children with a worker regularly visiting.

For about four months, the home was satisfactorily maintained. Then it was learned that the mother was evicted from the apartment for misbehavior; that she had been living with an eighteen-year-old boy who had never been employed. The mother, with her boyfriend and the children, then moved from relative to relative and ultimately to a trailer park. There the DPS worker found her, the boyfriend and the children living in an old automobile with three dogs. The children were filthy and infested with head lice. Their physical custody was returned to DPS. The mother continues to live with her boyfriend wherever they can find shelter.

At the time of the disposition hearing, the children were ages ten and seven. The mother is thirty-one. The father has not visited the children in several years and stated their best interest would be served by removal from the mother. Except for the recent four months, the mother has not had custody in seven years. The children were enrolled in school and doing well. DPS’s plan for the children is to place them for possible adoption or foster home care.

MERITS

We consider that the extended, yet incomplete, statement of facts of itself answers the mother’s contention of insufficient evidence to warrant the order of termination of parental rights. For seven years the state has had custody of and provided support for the two children, while the mother ran free without obligation. DPS has diligently sought to aid the mother toward rehabilitation and establishment of a home and environment suitable for the children. Except for the brief period of four months, all effort was fruitless. The end result of the four months was the return to filth and depravity. It seems evident that there is no viable alternative but to terminate parental rights so that permanent planning may be made to serve the best interest of the children. Though there may be slight likelihood of adoption because of the age of the children, there appears no likelihood that the mother and her eighteen-year-old paramour will ever be able to contribute to the welfare of the children. Foster home care, as for the past seven years, is preferable to living in an automobile with three dogs and head lice.

We consider that the judgment of the trial court in this case is supported by clear and convincing evidence and conforms to the principles stated by this court in the cases of Glover v. Alabama Department of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981), and Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.), writ quashed, 374 So.2d 1378 (Ala.1979).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Franklin B. FOWLER v. Charles “Chuck” FOWLER, Sr., Individually and d/b/a Chuck’s Mobile Service.
    Civ. 4301.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Rick A. Williams, Montgomery, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

Franklin B. Fowler filed a detinue action in Montgomery County Circuit Court against Chuck Fowler seeking to recover several items of personal property, or in the alternative, to obtain the reasonable value of the property and damages for the wrongful detention of the property.

Defendant asked the circuit court to dismiss the complaint on February 2, 1982 on the ground that the case had been finally adjudicated in an action in the United States Bankruptcy Court for the Middle District of Alabama.

The bankruptcy court’s order of June 16, 1982 stated that the parties had entered negotiations and would likely settle the matter. They then requested a week’s continuance, which was granted. On the day set for trial the parties did not appear, so the court deemed the case settled and dismissed it.

The circuit court dismissed plaintiff’s action on March 7, 1984. On March 21, 1984 plaintiff filed a motion for reconsideration of its decision to dismiss the action. This motion was overruled on April 10, 1984. It is from the overruling of this motion for reconsideration that plaintiff appeals.

Plaintiff contends that the trial court erred by dismissing his complaint because the bankruptcy court’s order was not res judicata of the proceedings in the case at bar.

The trial record reflects that on May 26, 1982 the bankruptcy court was advised by counsel for the parties that negotiations had been entered into which would likely result in settlement of the matter, and one week’s continuance was requested. On June 2, 1982, the date to which the matter was continued, no appearance was made by counsel for either party, and the court deemed the matter settled and dismissed the complaint.

From these facts it is reasonable to assume that the bankruptcy court dismissed the action for the failure of the parties to prosecute.

It has been held that an involuntary dismissal for want of prosecution operates as an adjudication upon the merits unless the court in its dismissal order specifies otherwise. Jameson v. DuComb, 275 F.2d 293 (7th Cir.1960); rule 41(b), Alabama Rules of Civil Procedure. The bankruptcy court’s order did not specify whether the order would be deemed an adjudication of the merits; therefore, according to the proposition in Jameson, supra, and A.R.Civ.P. 41(b), its order was an adjudication of the merits.

Does our finding that the bankruptcy court’s order was an adjudication of the merits of the controversy in that court permit us also to find that order to be res judicata of the detinue action in the Circuit Court of Montgomery County?

The essential elements of res judica-ta are: a prior judgment rendered by a court of competent jurisdiction; the prior judgment has been rendered on the merits; the parties to both suits are substantially identical; and the same cause of action is present in both suits. Reliance Insurance Co. v. Substation Products Corp., 404 So.2d 598 (Ala.1981).

We have found that a judgment on the merits was rendered by a court of competent jurisdiction, the bankruptcy court’s order of June 16, 1982, and that the parties in that proceeding were the same parties as in the present proceeding. However, the record fails to show that the cause of action adjudicated in the bankruptcy court is the same cause of action sought to be adjudicated in the present action.

Since one of the essential elements of res judicata is missing, the trial court could not find that the present action was barred by the bankruptcy adjudication. The trial court’s judgment dismissing the present action is reversed and the cause remanded.

REVERSED AND REMANDED.

HOLMES, J., concurs.

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


text:
    Rex Holton REDDISH, Jr. v. Mervyn Sue REDDISH.
    Civ. 4315.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Von G. Memory, Montgomery, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

The parties were divorced in March 1983. By agreement, custody of two small children was given to the mother. In June 1983 the mother gave actual custody to the father. On June 17, 1983, by joint petition and agreement, legal custody was given to the father, with the mother agreeing to pay to the father $200 per month as child support. Such agreement was made though the mother was unemployed with no funds. Subsequently the support payments were not made by the mother, and visitation privileges were often denied her.

In October 1983, the mother filed a petition for modification, alleging inability to pay the agreed support and seeking enforcement of visitation rights. The father responded with a request for a contempt citation for failure of the mother to pay child support and a determination of ar-rearage.

Oral hearing was held, after which the court entered judgment, finding: that the mother was unemployed at the time of her agreement to pay $200 per month child support and financially unable to make such payments, which fact was known to the father; though she obtained employment in August 1983, her net salary of $320 per month was insufficient to make the support payments; the mother was not in contempt, because of her inability to pay; future payments of the mother should be in the sum of $37.50 every two weeks; a visitation schedule was set by agreement, and judgment as to the accumulated support arrearage was reserved for review in ninety days.

The father has appealed, charging abuse of the trial court’s discretion in areas of the decree. The first charged abuse is the failure of the court to find the mother in contempt for failing to pay as agreed.

It appears to this court that the answer to that complaint is to be found in the judgment. The presence of contempt is for the court to determine. It is clearly the law that one is not in contempt of an order of the court, if it appears that failure to perform is not contumacious but due to inability to perform. Cooper v. Cooper, 401 So.2d 99 (Ala.Civ.App.1981). The court so found here, and that finding is fully supported by the evidence.

The second area of charged abuse of discretion is the refusal of the trial court to assess an arrearage of support. It is to be noted that the court did not refuse to set an arrearage. It merely delayed judgment on that issue. We find no abuse of discretion in delaying such ruling. An appeal is from an adverse ruling of a trial court. Boise Cascade Corporation v. Lee, 291 Ala. 666, 286 So.2d 836 (1973). Delay of a ruling is not an adverse ruling.

The third area of abuse of discretion is stated to be the reduction of the order for child support. The father insists that the mother is prevented from receiving any relief from her agreement to pay $200 a month child support because there had been no change of circumstances since the agreement; that, in fact, her financial circumstances have improved in that she now has a job.

This court recognizes and has often stated that a modification of a prior decree for custody or child support may be made only upon a showing of a change in circumstances since that prior decree. However, we consider that it should be recognized that such prior decree should have been based upon and supported by circumstances then existing. If it is shown, as in this case, that at the time of the prior decree or agreement, there existed no circumstances supporting any reasonable possibility of performance, and that such condition continues, there must be cause for change. To hold otherwise would perpetuate an intolerable situation: to say, once begun it cannot be modified because there continues to be the same unchanged circumstances — inability to perform. Such is the father’s argument here — she knew she couldn’t pay such an amount of support when she agreed to it. Circumstances have not changed; she still can’t pay; therefore, there is no power to modify, even to permit her to pay an amount of support which she now may be able to pay.

We cannot in equity and reason hold that a modification in this case is an abuse of the equitable discretion of the trial court. Equity delights in doing justice and that not by halves. Grooms v. Brown-Marx Co., 239 Ala. 284, 195 So. 215 (1940). Equity does not require the doing of a foolish act nor a vain thing. Merchants National Bank of Mobile v. Morris, 273 Ala. 117, 136 So.2d 193 (1961). To deny change of an order with which compliance is unreasonable and impossible is a foolish and vain thing. We affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Alice Williams TAYLOR v. Clarence Leon WILLIAMS.
    Civ. 4328.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    Steven W. Ford of Ford, McElvy & Ford, Centreville, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

The parties to this appeal were divorced in 1981. In March 1982 husband sought a modification of the 1981 decree. He asked for a reduction in child support payments and different visitation periods. In May 1982 the trial court refused to change the child support, but it did change the visitation periods.

In July 1983 husband again asked for a modification of child support payments. The wife answered and counterclaimed for arrearages in child support payments in the amount of $1,525. In January 1984 husband amended his petition, requesting that custody of the children be awarded to him. Service of the amendment was perfected by placing a copy in the United States mail addressed to wife’s counsel. A hearing date was set for January 10, 1984. The hearing was continued to February 14, 1984. Wife’s attorney withdrew his representation on February 6, 1984.

The hearing was held on February 14, 1984. The wife was not present, nor was she represented by counsel. A default judgment was rendered against the wife. The custody of the children was awarded to the husband.

On April 16, 1984 wife filed a motion to set aside the default judgment. Rule 60(b), Alabama Rules of Civil Procedure. A hearing was held and the motion was denied. Wife appeals.

The dispositive issue here is whether the trial court abused its discretion by denying the wife’s 60(b) motion. Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (Ala.Civ.App.1975).

Wife contends here that she did not receive a copy of the January 6, 1984 amendment to the petition for modification, nor did she receive notice of the January 10, 1984 and February 14, 1984 trial dates. She says that is why she did not appear and defend herself. The wife’s evidence supports her contention that she did not receive a copy of the amendment to the modification petition or notice of the hearing dates from the court or anyone else.

The record contains a letter from the clerk of the court to the wife at her address in Meridian, Mississippi, advising her of the January 10, 1984 trial date. The record also shows that the amendment to the petition for modification filed in court on January 6, 1984 was served on Mr. Atkins, wife’s attorney, by mailing a copy to him at his address in Centreville, Alabama. The record contains a motion made by the husband asking the court to hear the matter on February 14, 1984 and not grant any more continuances. This motion was also served on Mr. Atkins. The record reflects that the clerk of the court mailed a letter to wife at her address in Meridian, Mississippi, advising her that the matter would be heard on February 14, 1984 and no more continuances would be granted.

In his motion to be permitted to withdraw as attorney for wife, Mr. Atkins stated that wife had not cooperated with him in his efforts to defend her and that she had failed to appear in court. The record reflects that Mr. Atkins wrote a letter to wife at her address in Meridian, Mississippi, on January 3, 1984 advising her of the trial on January 10, 1984. Mr. Atkins was allowed to withdraw as wife’s attorney on February 6, 1984. The record reflects that the clerk of the court wrote wife on February 8, 1984 advising her that the new trial date was February 14, 1984.

The evidence is without dispute that wife’s mailing address during the time in question was Route 7, Box 348D, Meridian, Mississippi 39301.

“In order for one to obtain 60(b) relief, he must allege and prove one of the grounds set out under the rules, together with a meritorious defense to the action.” Raine v. First Western Bank, 362 So.2d 846 (Ala.1978).

The record reflects that the trial court entered the default judgment because the wife failed to appear and defend the action filed against her after repeated notices to her and her attorney. The evidence shows that a copy of the amendment to the modification petition, along with one or more notices of hearings, was served on wife’s attorney, Mr. Atkins. The record also reflects that notices of hearings were mailed by the clerk of the court directly to the wife at her address in Meridian, Mississippi. Wife and her new husband testified that they did not receive these notices.

As is apparent, the evidence was in conflict. The trial court resolved the conflict by finding that wife had received notice of the hearings and had failed to satisfy the court that her failure to appear was excusable under rule 60(b), A.R.Civ.P.

After a careful examination of the record, we cannot say that the trial court abused its discretion in refusing to grant the rule 60(b) motion and set aside the default judgment.

AFFIRMED.

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


author: BOWEN, Presiding Judge.

text:
    Ronald S. CONGO v. STATE.
    8 Div. 805.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.

      David L. Thomas, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for grand larceny and burglary in the second degree. Sentence was ten years’ imprisonment. Two issues are presented on appeal.

The defendant alleges that the indictment should be dismissed because he pled guilty to a federal offense partially in exchange for an agreement that he would not be prosecuted on any pending state offense.

The facts, reduced to their simplest terms, show that the defendant’s attorney asked an assistant district attorney if the district attorney’s office would be willing to dismiss any pending cases against the defendant if the defendant accepted a federal plea bargain agreement and pled guilty to federal drug charges. When the assistant district attorney told defense counsel that he had no pending cases against the defendant (Ronald) and that if the defendant pled guilty in federal court the State would not prosecute him on any pending charge, the assistant was actually referring to the defendant’s brother, Robert.

There is not even a hint of bad faith or misrepresentation in this case. As all of the conversations between the prosecutor and the defendant’s attorney were very informal, it is easy to see how the mistake was made.

The trial judge found that there was no “meeting of the minds” and consequently no agreement. Additionally, the judge noted that, even if there had been an agreement, the defendant’s remedy was for the federal court to set aside the federal guilty plea.

On appeal the Attorney General argues: “It is therefore clear from the facts of this case that there was never any ‘meeting of the minds’, but rather a unilateral mistake by one of the parties and thus under the principles of contract law there was no agreement between” defense counsel and the assistant district attorney. The entire state of facts is best summarized in the answer of the assistant district attorney: “He (defense counsel) might have been talking to me about Ronald, but I was talking to him about Bobby.”

Generally, “(a) mistake of only one of the parties to a contract in the expression of his agreement or as to the subject matter does not affect its binding force, and ordinarily affords no ground for its avoidance, or for relief, even in equity.” 17 C.J.S. Contracts Section 143 (1963).

“While it is true that Alabama recognizes an equitable exception to the general rule that a unilateral error does not avoid a contract, where excessive hardships flow to the party responsible for an error, nevertheless, recission based on such a mistake may be had only where no prejudice results to the other party. Ex parte Perusini Const. Co., 1942, 242 Ala. 632, 7 So.2d 576, 578.”
Crenshaw County Hosp. Bd. v. St. Paul Fire & Marine Ins. Co., 411 F.2d 213, 215 (5th Cir.1969).

In Ex parte Yarber, 437 So.2d 1330 (Ala. 1983), our supreme court recognized that, although principles of contract law may provide a useful analytical framework, “contract law cannot be rigidly applied in deciding whether to enforce a broken plea agreement.”

The letter and spirit of Yarber dictate (1) that there was a plea agreement in this case and (2) that the State must honor it.

In Yarber, the supreme court noted that “the prevalent custom in Alabama is that such (plea) agreements are verbal understandings between the attorneys involved.” To allow the State to dishonor an agreement on the ground that the prosecutor entered into the agreement under a mistake of fact serves only to weaken the plea negotiating system. Yarber.

Fundamental fairness and due process of law dictate that the State should be es-topped from prosecuting the defendant on any charge that was pending at the time of the events here in question. Since the defendant’s motion to dismiss the indictment was due to be granted, the judgment of the circuit court is reversed and the cause is remanded for action by the court consistent with this opinion.

REVERSED AND REMANDED.

All Judges concur.


author: BEATTY, Justice. ADAMS, Justice

text:
    Ex parte State of Alabama. (re Ronald S. CONGO v. STATE of Alabama).
    82-1000.
    Supreme Court of Alabama.
    June 8, 1984.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for petitioner.
    David L. Thomas, Huntsville, for respondent.
   BEATTY, Justice.

This Court granted certiorari to determine whether the Court of Criminal Appeals, 455 So.2d 894, had correctly applied the principles of Ex parte Yarber, 437 So.2d 1330 (Ala.1983), to the facts in this case. We reverse and remand.

Under Ex parte Yarber, supra, a defendant who has negotiated a plea bargain with the State is not automatically entitled to a judgment based upon that agreement. He does have the right to have it submitted to the trial court for that court’s consideration. The trial court is not bound to accept the agreement. The power of the trial court to so decide carries with it the power to determine whether or not such an agreement exists between the State and the defendant.

In this case, the trial court found that no agreement existed. Nevertheless, the Court of Criminal Appeals held that “the letter and spirit of Yarber dictate (1) that there was a plea agreement ... and (2) that the State must honor it.” It appears that the Court of Criminal Appeals was persuaded by the mistaken identity of the person who was the subject of the agreement to apply the doctrine of estoppel to the State, because that court stated: “Fundamental fairness and due process of law dictate that the State should be estopped from prosecuting the defendant.”

This Court does not reject the applicability of the doctrine of estoppel in a proper case; however, its application in this case was erroneous. The alleged agreement here was informal and unwritten. Yarber recognizes the custom that produces such unwritten plea bargains, but also acknowledges that such agreements may be written as well as oral. While the informal and unwritten negotiations do not lose their vitality if it is proved that they ripen into an agreement, that very informality increases the risk that such negotiations will be found not to have resulted in an agreement.

In this case, the trial court found that no agreement resulted. Under the facts of this case, we conclude that such a finding was not error. The decision of the Court of Criminal Appeals finding an enforceable plea bargain was, therefore, error. Accordingly, we must reverse the decision of that court and remand this ease to that court for an order not inconsistent with this opinion. It is so ordered.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, AL-MON and SHORES, JJ., concur.

FAULKNER, JONES, EMBRY and ADAMS, JJ., dissent.

ADAMS, Justice

(dissenting).

By dissenting, I do not disagree with the majority’s enunciation of what the decision in Ex parte Yarber, 437 So.2d 1330 (Ala.1983), means. In Yarber, there was no dispute that there was an agreement between the defendant and the district attorney. The district attorney repudiated the agreement and the trial judge proceeded with the trial of the case without considering whether he should accept or reject it. Until we decided Yarber, if either side backed out of an agreement, the trial court’s only recourse was to try the case.

Since Yarber, if the prosecution and defense have reached an agreement, such agreement must be submitted to the trial judge, and, at that time, the prosecution can inform the court why such an agreement is not in the best interest of the state (e.g., mistake, newly discovered evidence, etc.). Then the trial judge can determine if the agreement is a just and fair one. In the final analysis, it is the trial judge that must make the decision. Yarber does not mean that where there has been an agreement (some would prefer to say contract) that is the end of the matter. It is this implication of the Court of Criminal Appeals’ opinion that I disagree with.

Likewise, if there is a dispute as to whether there is an agreement, it is up to the trial judge to determine if an agreement was made. And if he determines that there has been an agreement, he then must decide if he will honor it.

However, I dissent from this court’s reversal of the Court of Criminal Appeals, because I do not believe that Yarber fits the facts in this case. This is a stronger case than Yarber. Here, the defendant pled guilty in federal court because the district attorney had said that if he did so, he would not prosecute the state charges against him. As a result of such a state-merit, which is uncontroverted, the defendant has served more than 15 months on a federal sentence. The principles set forth in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), govern this case. There it was said that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499. The district attorney said that when he made the statement that he would not prosecute Congo, he thought he was talking about Congo’s brother. The fact situation here is identical to the fact situation in Santobello, and for this reason, I would deny the writ. Although the Court of Criminal Appeals’ decision is wrong in its interpretation of the meaning of Yarber, it is right insofar as the principles involved in Santobello are concerned. A court should not be reversed if it reaches the right result, even though it assigns the wrong reasons.

FAULKNER, JONES and EMBRY, JJ., concur.


text:
    Ronald S. CONGO v. STATE.
    8 Div. 805.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
   AFTER REMANDMENT

BOWEN, Presiding Judge.

The judgment of the Circuit Court of Madison County is affirmed on authority of Congo v. State, 455 So.2d 896 (Ala.1984).

AFFIRMED.

All Judges concur.