author: BARRY, Judge.

text:
    Maureen O’Brien WALL v. James T. WALL, III.
    No. CA-0402.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      Dan A. Smetherman, Landwehr, Hof & Smetherman, New Orleans, for plaintiff-appellant.
    Lanny R. Zatzkis, Lynne W. Wasserman, Fawer, Brian, Hardy & Zatzkis, New Orleans, for defendant-appellant.
    Before BARRY, KLEES and WILLIAMS, JJ.
   BARRY, Judge.

Both parties in this domestic dispute question a myriad of factual determinations in a community property partition and the wife appeals the denial of increased child support.

James T. Wall, III (James) and Maureen O’Brien Wall (Maureen) were married in June, 1968 and had two children, now age 7 and 10. Maureen secured a separation based on abandonment on June 29,1978 and by joint stipulation she got custody of the children and child support and visitation were set. On September 1, 1978 James filed to partition the community, Maureen answered, then reconvened on December 18, 1978. The next day the parties entered a consent judgment on the record which divided all of the community immovables and most of the other community property. Immediately following the consent judgment they executed an “Act of Partition & Community Settlement” which incorporated the provisions of the oral consent judgment.

On June 4, 1980 James filed a Petition to Enforce or Annul Community Property Settlement in which he alleged there were items to which he was entitled pursuant to the partition agreement which he had not received. He also specified community obligations which were paid from his separate estate, as well as debts which were owed by the community. Maureen reconvened for delivery of items allegedly due under the property settlement, for reimbursement of income allegedly received by James, for reimbursement of interest and penalties assessed by the Internal Revenue Service, and for attorney’s fees.

A divorce judgment was rendered on October 23, 1980 which continued Maureen’s custody of the children and the existing child support of $400 per month per child. A judgment on April 16, 1981 allocated certain community property between the ex-spouses and determined various debts were to be paid by the community, or by James or Maureen individually. The judgment did not address several claims, both spouses applied for a new trial which was denied, and they now appeal.

James filed several rules to reduce the child support and Maureen has sought an increase. On April 21, 1982 the trial court denied simultaneous rules to increase or decrease the award and only Maureen appealed from that denial.

CHILD SUPPORT

The $400 per month per child support stipulated in 1978 was continued in the October, 1980 divorce decree. Despite three rules to decrease by James and one rule to increase by Maureen, the $800 per month has not changed.

Maureen claims her expenses for the children have increased and despite James’ alleged meager income, his lifestyle indicates sufficient means to pay $1400 a month. She asserts the trial court gave undue weight to James’ testimony which she says is “replete with egregious contradictions.”

The record shows that during and after the marriage, James derived his principal income from renovation and sale of old buildings. He testified that he owns several pieces of real estate, but mortgage payments and other expenses substantially exceed the rental income. He stated the real estate business is currently “very slow” and he has been unable to sell the properties at a profit. His federal tax returns show only $9,328 income for 1980 and $6,322 for 1981.

James testified he was unemployed and looking for a job in Nashville where he lives with his second wife who is also unemployed and permanently disabled due to a back injury. Maureen disputes James’ financial status, citing his testimony that he honeymooned in Mexico, drives a Jaguar, belongs to a country club, and owns several houses. She also points to over $500,000 which passed through his corporate bank account in one year which he said was borrowed to buy and renovate the properties which are losing money.

James counters that his financial circumstances have worsened, whereas Maureen receives $900 per month from a former community mortgage note, plus the $800 monthly child support. She also owns two unencumbered lots in Mandeville appraised at $60,000, in addition to a condominium from which she has not attempted to secure income. Further, Maureen admitted she and the children are living rent-free in a house owned by her aunt, although she claimed housing expenses of $379.50 per month in her expense sheet.

As in most cases involving support (child or alimony), this record is replete with charges, denials, accusations and contradictory statements with disputed facts and figures. Child support awards are not subject to change absent a change in the circumstances of the parties. Laird v. Laird, 363 So.2d 244 (La.App. 4th Cir.1978). After hearing lengthy, conflicting testimony and reviewing numerous exhibits, the trial judge found Maureen failed to prove her ex-husband’s circumstances had changed sufficiently to warrant an increase in the support award. We all know trial courts are accorded great discretion in child support matters and we find no abuse of that discretion.

COMMUNITY PROPERTY PARTITION

JAMES’ ASSIGNMENTS OF ERROR

A. Award of certain jewelry.

James complains the trial court’s award to Maureen of her diamond engagement ring, platinum wedding band, and two other bracelets was improper. He cites the provision in the partition agreement which awarded to each spouse, as his or her separate property, “all gifts made to either party” by his or her parents or other blood relatives. According to James, the items in question were Wall family heirlooms which should be returned to his mother and grandmother.

Maureen points out that, in addition to the general “gift from family” provision, the agreement contained a more specific clause in which the parties allotted to James “all of the guns, hunting equipment, tools and building materials and [stipulated] that Mrs. Wall will receive all of her personal jewelry.” Maureen relies on the principle that, in contract interpretation, the more specific provision controls the general, citing Mixon v. St. Paul Fire & Marine Ins. Co., 84 So. 790, 147 La. 302 (1920). She argues that, in the partition agreement, the general language regarding gifts is modified and controlled by the clause explicitly allocating the hunting equipment to James and the jewelry to her. Maureen says this interpretation is supported by the evidence that the hunting paraphernalia included guns, a pirogue, camping equipment and building materials of substantial value which were intended to be offset by her retention of the jewelry, which was the only jewelry she owned of any significant value.

Maureen also says that although the diamond in her engagement ring originally belonged to James’ grandmother, she selected the setting and received the ring as an engagement gift from her then-fiancé, not as a gift from her in-Iaws-to be. Similarly, the wedding band may have once belonged to her husband’s grandmother, but it was a gift from her husband at their wedding.

Maureen argues, alternatively, that since the partition agreement purported to divide certain community property, prenuptial gifts such as the engagement ring and the bracelet, which are not community property, are not covered by the document. James makes the interesting argument that the “personal jewelry” provision in the partition agreement refers to community property only, but that the “family gift” clause encompasses premarital gifts also.

The trial judge did not assign reasons, but we find his award is amply supported on either of the grounds raised by Maureen. If the agreement is deemed to encompass premarital, as well as community property, the specific provision allocating her jewelry to Maureen should take precedence over the general “gift” clause, especially where there was evidence the jewelry was not “gifts” to Maureen from her in-laws. Also, the facts and evidence show the parties intended the jewelry allotted to Maureen to be comparable in value to the hunting equipment allotted to James. If the partition agreement does not cover pre-nuptial donations the jewelry should be retained by Maureen, in whose favor the separation was granted. Roy v. Florane, 239 La. 749, 119 So.2d 849 (1960). LSA-C.C. Arts. 156 and 1740.

B. Award of the master bedroom bed.

In the partition agreement it was stipulated that “the balance of the property with the exception of the bed in the master bedroom will be treated as community property .... ” The trial judge awarded the bed to Maureen as her separate property. James contends the bed was excepted from the list of community property because “the parties intended for him to have it.” James asserts he bought the bedposts with money given him by his family, but there is no evidence to substantiate that allegation in the record.

James listed the bed as community property in his sworn descriptive list filed with his petition to partition. Conversely, Maureen did not list the bed as community property in her descriptive list, which was attached to the partition agreement signed by both spouses. According to Maureen, the deliberate omission of the bed from her list and from the community property listed in the partition agreement was because both parties had acknowledged the bed was her separate property. Maureen asserts that although James did not mention the bed in his petition, in her answer and recon-ventional demand the bed was listed as her separate property.

Inexplicably, neither party produced any testimony concerning the bed at any of the hearings. Inasmuch as Maureen’s pleadings, her descriptive list, and the partition agreement are consistent that the bed was her separate property, and James’ descriptive list contravenes his current position, we find no error in allocation of the bed to Maureen.

C. Assessment of Maureen’s attorney’s fees against the community.

Maureen testified she incurred attorney’s fees of $7,500 in connection with the partition action and the court ordered that amount, plus $350 in court costs, to be paid by the community. James contends the award is erroneous, based on language in the partition agreement and the fact that the community had terminated at least six months before the partition contract was signed and over two years before the trial on the partition suit.

The partition agreement provides, somewhat ambiguously:

Appearers further recognize and acknowledge that the community of ac-quets and gains terminated on June 29, 1978 and it is agreed that any debts of appearers incurred after the date of the judgment of separation, cost and/or attorney’s fees of each, incident to the separation proceedings shall be paid by each of the parties hereto individually.

Under a broad reading of this provision, “any debts of appearers incurred after ... [June 29, 1978,]” would include debts for attorney’s fees in connection with the partition proceedings. Maureen argues that the stipulation in the contract refers only to attorney’s fees and court costs in connection with the separation and “is silent with respect to other actions in connection with the divorce.”

We do not believe the parties, after acknowledging the termination of the community and providing that attorney’s fees and costs already incurred in connection with the separation were not to be deemed community obligations, intended that attorney fees to be incurred subsequently in connection with the partition would be community debts. Such an unlikely interpretation would also negate the general clause in the same sentence classifying “any debts incurred after the date of the judgment of separation “as separate debts.” Additionally, Maureen’s interpretation would ignore the fact that the partition proceedings in this case were filed in the separation action and that the separation decree ordered the spouses to make “an expeditious effort to settle the community.” Thus, we find the partition suit was “incident to the separation proceedings” and under the partition agreement the attorney’s fees involved are the separate debts of the respective spouses.

The assessment of Maureen’s attorney’s fees and costs against the community was erroneous and is reversed.

D. Reimbursement to James for community debts allegedly paid from his separate property.

James seeks reimbursement for one-half of various debts which were allegedly incurred prior to the termination of the community, but which he claims were paid with his separate funds after the community’s dissolution. The items included credit card payments, loan repayments, country club bills, utilities, tax payments, etc. No documentation was offered and James merely testified that he incurred the bills before the separation suit was filed. He did not testify that the items were paid with his separate funds and, in view of his meager earnings during this period, it seems more likely the bills were paid from community funds. The trial court’s determination that reimbursement was not substantiated is supported by the record.

E. Award to Maureen of $5000 for payment of joint federal income tax.

Both parties challenge this award which relates to payment of joint federal income taxes for the couple’s 1977 community income. Although the parties were still married at the end of 1977, they had separated physically several months before the 1977 tax return was due. James testified he gave the tax information to his accountant, Mr. Friedrichs, who prepared a joint return and gave it to James in mid-March, 1978.

Despite urgent requests by James, Maureen refused to sign the return. At trial she admitted her refusal to sign, which she based on her distrust of the income information supplied by her husband. Maureen testified that on her attorney’s advice, she refused to sign the return or release community funds in escrow until the community was settled and the tax forms were reviewed. She did not, however, recall asking to see the return or review it with an accountant. Maureen persisted in her refusal to sign the return or disburse joint funds, even after being advised that severe penalties and interest would be accruing. On April 17, 1978, James filed for a hardship extension, but was apprised by the Internal Revenue Service in October, 1978 that the extension had been granted for only two months and that penalties and fines were due.

James made a tax payment of $87,000 in October of 1978 from community funds under his control, but was unable to secure Maureen’s signature to file the joint return until March 19, 1979. At that time, Maureen signed an agreement prepared by her attorney which provided:

In consideration of the agreement made by James T. Wall, III to file joint individual income tax returns for the calendar year 1977, I, Maureen O’Brien Wall, do hereby agree to pay any additional amounts due as interest or penalties attributable to such taxes on joint income earned during calendar year 1977 which may arise as a result of my individually failing to request extensions of time for filing said tax return, or as a result of our failing to file returns and pay income taxes when due.

Maureen contends she was induced to sign the agreement because of James’ misrepresentation to her that he’d obtained an extension, and argues she should not be bound by the agreement. We find no evidence of such a misrepresentation. The accountant corroborated the husband’s testimony that a temporary extension was obtained. There is no mention of reliance by Maureen on any extension in the agreement, which speaks for itself and recites as Maureen’s consideration James’ agreement to file jointly with her. Inasmuch as James had obtained a limited extension to file and had actually paid $37,000 in estimated taxes in October of 1978, while Maureen had refused to cooperate with James in filing a joint return and had taken no steps toward filing a separate return by March of 1979, James’ agreement to file jointly with her constituted substantial and valid consideration and Maureen is bound by her agreement.

A letter from the Internal Revenue Service introduced by Maureen summarized the couple’s 1977 tax data:

Tax per Form 1040 received March 22,1979 . $22,794.00

Estimated tax payment - July 1, 1977. $ 240.00

Payment, October 12,1978 . 37,000.00

Late filing penalty. 5,638.50

Overpayment applied to settle 1975 tax balance. 10.35

Late payment penalty. 338.31

Interest. 663.95

Overpayment applied to Mrs. Wall's estimated tax. 577.06

Overpayment applied to Mr. Wall’s estimated tax. 7,217.83

$37,240.00 $37,240.00

As the letter indicates, the couple overpaid their 1977 taxes by $14,446 but owed penalties and interest totalling $6,640.76. In accordance with the agreement, the penalty and interest charges were deducted entirely from Maureen’s half of the overpayment (which was $7,223), leaving Maureen with a credit of $582.24 ($7223.00-$6640.76 = $582.24). Another $5.18 was subtracted from the credit due Maureen, and $5.17 from the credit due James, to settle a $10.35 balance due on their 1975 taxes. James therefore received a credit of $7217.83 ($7223.00 - $5.17) and Maureen received a credit of $577.06 ($7223.00 - $6640.76-$5.18).

In view of Maureen’s agreement to pay all penalties and interest on the 1977 taxes, we find the I.R.S. properly calculated the credits due to each spouse. The trial judge did not explain the award to Maureen of $5000 for “payment of joint federal income tax.” There is no basis for the award which, we surmise, was based on a misunderstanding of the data and is reversed.

F. Award of $4,000 to James representing half the draw made against the community by Maureen Wall.

This award stems from the trial court’s characterization of support payments to Maureen and the children during the separation as a “draw on community funds.” Neither party is satisfied with the award: James claims the amount owed him should be $8,000; Maureen contends she owes James nothing and he owes her $4,000.

The controversy comes from the judgment of separation which provided in part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Maureen O’Brien Wall shall receive for her support and maintenance and that of the two minor children the sum of $2,000.00 per month, retroactive to April 20, 1978, and on the 20th of each month thereafter, from the fund on deposit in the Jackson Homestead, which deposit shall be subject to draw on the joint signatures of Gibson Tucker, Jr. and Dudley D. Flanders; and that James T. Wall, III will have the use of other current community income, subject to his having to account for said income at the time the community is divided, at which time, Maureen O’Brien Wall will also account to the community for any other income she may have received since the separation proceedings commenced;

From the date of the separation until the partition of the community in 12/78, Maureen received approximately $16,000 from the community funds in Jackson Homestead, including about $4,838,24 that was automatically withheld by the Homestead for mortgage payments on the Upperline Street home. Maureen contends under the separation judgment the $2,000 monthly support payments were intended as alimony pendente lite. She argues since the payments were made following the termination of the community, they were the separate obligations of her husband and, since he paid them from community funds, her separate estate is entitled to reimbursement of $8,000. She also claims reimbursement for the funds withheld from her support payments for the home mortgage.

In support of her claim, Maureen cites a later judgment on a Rule for Contempt which refers to the $2,000 monthly support payments as “alimony pendente lite.” Maureen argues that our jurisprudence has never required a wife to repay alimony pendente lite and child support, and that the trial court’s order is “repugnant to the public policy of Louisiana.”

James contends the provisions of the separation judgment regarding support payments were negotiated between the parties who intended to provide that, until the community was settled, Maureen could draw up to $2,000 per month from the Homestead account as an advance on her half of the community. James cites the provisions of the separation judgment ordering the parties to settle the community expeditiously and providing that upon settlement of the community, child support payments of $800 a month only would be due.

There is no language in the separation judgment indicating that the monthly payments are to be deemed either alimony pen-dente lite or an advance on Maureen’s half of the community assets. In view of the provision that her payments were to be made from existing community funds and were to cease upon settlement of the community, (while the divorce action was still pending), we find the payments were not intended as alimony pendente lite payable from the husband’s post-separation earnings. We also find, however, that the parties did not contemplate these disbursements to Maureen as an advance on her portion of the community distribution. Rather, it appears they intended to utilize community funds to fulfill the existing marital obligation of spousal and child support during their post-separation period. Upon final settlement of the community, it was intended that James would begin child support payments and that Maureen’s income from her share of the community assets would be sufficient for her support.

Based on the language of the separation judgment, supra, we find Maureen does not owe reimbursement for the $2,000 monthly payments. There is no mention in the decree of any accounting due by Maureen for her receipt of the $2,000 each month. The separation judgment does provide, however, that James “will have the use of other current community income, subject to his having to account for said income at the time the community is divided, at which time, Maureen O’Brien Wall will also account to the community for any other income she may have received since the separation proceedings commenced . ... ” This language, stipulated by the parties, clearly expresses their intent that Maureen’s receipt of $2,000 a month would not be an advance on her share of the community, but any additional amounts drawn by her would be deemed such an advance.

This understanding of the parties’ intentions is reflected in an agreement executed in September, 1978 in which they stipulated that monthly mortgage payments of $688.34 be paid directly to the Homestead and Maureen would receive $1,550.00 per month under the separation judgment. The agreement provided: “It is stipulated that $238.34 of this amount is an advance to Mrs. Wall directly from her half of the community.” Significantly, $238.34 is the amount by which, with the mortgage payment, Maureen’s receipt exceeded $2,000 a month.

The trial judge apparently believed Maureen’s draw was an advance on her share of the community but miscalculated the amounts drawn by her, thus awarding reimbursement for only ¼ of the $16,000 drawn. Since we find there is no basis for James’ entitlement to reimbursement, the $4,000 award is reversed.

G. Rejection of James’ claim for $903.36 drawn by Maureen from Homestead.

In accord with the September, 1978 agreement described in § F above, Maureen received a total of $1,806.72 over and above the stipulated monthly payments. Although she admits this sum was an advance from her share of the community, she contends the reimbursement of $903.36 that would be due James is “more than offset by the $1,000 which she was required to pay from her separate property to Jackson Homestead.” There is no evidence that Maureen paid $1,000 from her separate funds into the Homestead account. In her brief she asserts she received $2,000 during the separation from “certain community mortgages” and “was required to leave one-half of said mortgage payments ... in Jackson Homestead.” Since Maureen apparently spent her half of the $2,000 community receipts and the other $1,000 was left in the account for later distribution, there is no reason why her debt to James for $903.36 should be offset by $1,000. Therefore, the denial of James’ claim was erroneous and judgment is hereby rendered awarding James $903.36 from Maureen.

H. Refusal to recognize debts owed to James’ parents.

James testified his parents were owed $8,950.36 by the community for loans made by them during the couple’s marriage. He produced no promissory notes or other documentary evidence to substantiate the alleged loans and neither of James’ parents testified. Maureen denied any such indebtedness.

The trial judge properly found the evidence insufficient to support the claim.

MAUREEN’S ASSIGNMENTS OF ERROR

A.$6,000 offset to James.

The community property settlement provides that:

In order to off set [sic] the difference between those assets received by Mrs. Wall and the above assets received by Mr. Wall, Mr. Wall will be entitled to a $6,000.00 adjustment which he may use in having first choice of any furniture or personal property of the community at the price set forth in Mrs. Wall’s descriptive list or he may receive cash in lieu thereof. Mr. Wall will have selected those items he chooses by January 31, 1979. (Emphasis supplied.)

Both James and Maureen testified they understood this would give James the option of choosing $6,000.00 of community furniture or receiving $6,000.00 in cash from community funds. James contends he opted for the cash payment and apprised his wife of his decision shortly after the partition contract was executed.

Maureen, however, contends James did not notify her of his decision to accept the cash until February 1, 1979, one day after the deadline specified in the agreement, and that he still has possession of the majority of the community furniture and other movables. At trial, James admitted he has most of those items either in his possession or in storage. Maureen expressed her willingness to pay James the $6,000, which is now in an escrow account, if he accounted to her for the remainder of the furniture.

The trial court awarded James $6,000 plus interest from June 29, 1978. While Maureen argues the amount should be offset by the value of the furniture in his possession, we find no provision in the partition agreement disposing of the furniture. The parties specifically acknowledged that the partition agreement divided only some of the community assets and reserved their rights to a judicial partition of the remaining community assets if an amicable settlement could not be reached. Neither party has petitioned for partition of this furniture and therefore James is not at fault in maintaining custody of these assets and his entitlement to the $6,000 is not contingent on the tender or partition of community movables not covered by the partition agreement. The award of $6,000 is affirmed.

B. Obligations to Maureen’s father.

From December, 1977 through April 20, 1978, a period which began after Maureen left the family home and ended when Maureen began receiving court-ordered support payments retroactive to April 29, 1978, Maureen received money from her father which she allegedly spent for “necessities” for herself and the children.

Although Maureen introduced checks to-talling $3,453.00 drawn by her father, there was no evidence as to the nature of the payments, i.e., loans or gifts. The record shows Maureen’s father gave his daughter large sums of money throughout her marriage, with no apparent expectation of repayment. We find no error in the refusal to recognize the payments as community obligations.

C. Denial of income from notes and rents as community property.

One of Maureen’s most substantial claims is for half of the income James received from community immovables prior to the partition agreement. Maureen cites the provision in the separation judgment which allowed James the use of current community income “subject to his having to account for said income at the time the community is divided.” (Our emphasis).

Maureen introduced a ledger showing the amounts received by James and herself from December, 1977 through December 19, 1978. However, the petition for separation was not filed until February 21, 1978 and any accounting owed by James would not include income received before that date. James does not dispute the amounts he received during the post-separation period but contends these amounts, totalling approximately $16,000, should be offset by Maureen’s receipts of approximately the same sum for the eight months she received a $2,000 draw. As we determined previously, however, those receipts by Maureen were not subject to an accounting, as they were intended to be in lieu of child support and alimony pendente lite.

James admits he “received approximately $16,000 over the period,” but does not claim this money was used to pay community debts. Since his only defense to Maureen’s demand for an accounting is that she spent an approximately equal sum for support during this period, we find Maureen’s claim has merit and was improperly denied or passed over by the trial court. The judgment is therefore amended to award Maureen $8,000 from the community.

D.$244.36 payment on mortgage note.

Pursuant to the Act of Partition, Maureen was awarded as separate property a promissory mortgage note on a house in Brooklyn, New York which the couple had sold. On December 20,1978 James received $244.36 on the note even though the payment was the property of Maureen by terms of the settlement.

Although evidence of James’ receipt and negotiation of this check was presented at trial and not contradicted, the trial court did not address the claim. The judgment is therefore amended to provide $244.36 to Maureen from James’ separate property.

E. Division of Silver Stack stock.

Maureen contends the descriptive list filed with the partition agreement lists 1000 shares of Silver Stack stock and she is entitled to receive 500 shares. James responds that as is evidenced by Maureen’s reconven-tional demand she “is perfectly aware that the stock was sold before the termination of the community or its partition.” James avers the stock was sold pursuant to Maureen’s order, while Maureen argues James converted and sold the stock in violation of a restraining order.

No evidence was adduced at trial. In his brief James admits he received $1,200 from the sale of the stock (a check for that amount was mailed to the family home while he was living there) and is willing to reimburse the community for that amount. Therefore, the trial court’s judgment is amended to award Maureen $500 for this item.

F. The French brocade sofa.

Maureen contends the trial court erred in awarding this item to James in the absence of any testimony concerning the condition or ownership of the sofa. We note the sofa was listed as community property on both descriptive lists but was not allocated to either party in the partition agreement. Neither party sought ownership of the sofa in the pleadings or at trial. The only reference to the sofa in this suit was a claim in James’ petition for $2,500 for damages to the sofa and other items left in the Upperline house while Maureen and the children lived there. The trial judge rejected that claim for damages, finding the damage to the property was not more than the usual “wear and tear.”

Award of the sofa to James was clearly an error as this item is part of the undivided community property subject to future partition.

MOTION TO REMAND

Mr. Wall filed a motion to remand this appeal because a portion of recorded testimony was lost. The missing testimony relates to visitation rights which have not been appealed. The motion is denied.

As specified above, the judgment of the district court is partially amended, reversed and affirmed.

AMENDED IN PART; REVERSED IN PART; AFFIRMED IN PART.

      . Maureen argues the community terminated retroactively to 12/29/77 when the first separation petition was filed, but the first petition in the record has a 1978 docket number and was not filed until February 21, 1978. Under Art. 155, the termination of the community is retroactive to the date the petition was filed “in the action in which the judgment was rendered.” Since the separation judgment was rendered in this action, any earlier petition for separation in another suit would not affect the date of termination of the community.
      In their partition agreement the parties acknowledged that “the community of acquets and gains terminated on June 29, 1978” [the date of the separation judgment]. Since the community had already terminated by operation of law on February 21, 1978, this stipulation has no effect.

      . The separation/support judgment was rendered by Judge Federoff, but the later support rules and the- partition suit were tried before Judge Roberts.

      . This figure represents a draw of $238.34 times eight months, less $100 due to an arithmetic error.

      . The briefs refer to some pleadings purportedly filed in December, 1977, but no such petition or injunction appears in the record.


source: Caselaw Access Project

license: Public Domain

text:
    Frank L. COVINGTON, Jr. v. Anna C. COVINGTON.
    No. 53929.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    Rehearing Denied Nov. 30, 1983.
    C.A. Henley, Jr., Jackson, David Oliver, Gulfport, for appellant.
    Paul D. Snow, Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   Appeal from Chancery Court, Hinds County; J.C. Stennett, Chancellor.

AFFIRMED.


author: ROBERTSON, Justice,

text:
    Jesse ALLEN, Jr., a/k/a Jesse James Allen, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 54452.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    Rehearing Denied Nov. 16, 1983.
    Jesse Allen, Jr., pro se.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

On May 23, 1973, Jesse James Allen, Jr., and several companions robbed the Citizens Bank of Hattiesburg. He was subsequently indicted for armed robbery which at that time carried a maximum punishment of death except that

in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years. Miss.Code Ann. § 97-3-79 (1972). [Emphasis added].

Pursuant to this statute, Allen received a sixty year sentence.

Subsequent to the date of his crime, but prior to the date of his sentence, the Legislature amended the statute. The possible penalty of death was eliminated. The jury was empowered to sentence the defendant to life imprisonment. Where the jury failed to do so, the court was empowered to fix the penalty at imprisonment for a term reasonably expected to be less than life. Miss.Laws of 1974, ch. 576 § 4 (effective April 23, 1974). See Stewart v. State, 372 So.2d 257 (Miss.1979).

To be sure, under the amended statute Allen’s sentence is too long. He was 26 years old at the time he was ordered to serve 60 years in prison. This exceeds his life expectancy. Under the amended statute the Circuit Judge could only have imposed a sentence reasonably expected to be less than life. Stewart v. State, supra. Under the pre-April 23,1974, version of the statute, a 60 year sentence was within the sentencing judge’s power.

Allen argues that he should have been sentenced under the amended statute. He presented the matter to the Circuit Court of Forrest County via a petition filed under Rule 8.07 of our Uniform Criminal Rules of Circuit Court Practice. On November 17, 1982, the Circuit Court entered its order denying Allen any relief. It is from that order that he has prosecuted the instant appeal.

II.

We are presented two questions, the first, one of power, the second, involving the exercise of discretion.

A.

1.

The power to prescribe penalties to be exacted from those committing acts made unlawful under the criminal laws of this state is vested entirely in our Legislature. Purely and simply, our Legislature fixes the punishments for crimes. Gabriel v. Brame, 200 Miss. 767, 773, 28 So.2d 581, 583 (1947); Howell v. State, 300 So.2d 774, 780 (Miss.1974); Upshaw v. State, 350 So.2d 1358, 1360 (Miss.1977). There can be no doubt but that it was in the lawful power of the Circuit Court of Forrest County to impose upon Allen any sentence authorized by Section 97-3-79 as that statute read on May 23, 1973, the date on which Allen robbed the bank.

Our Legislature has provided that persons situated such as Allen may be sentenced under the penalty provisions of the statute existing at the time the offense is committed. Miss.Code Ann. § 99-19-1 (Supp.1982), which has been on the books at least since 1902, provides as follows:

No statutory change of any law affecting a crime or its punishment ... shall affect or defeat the prosecution of any crime committed prior to its enactment, ...; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes.

There is no express provision in the amended Section 97-3-79 articulating the legislative intention that the new penalty applied to offenses committed prior to April 23, 1974. We find it indisputable that the Circuit Court had power to impose upon Jesse James Allen, Jr. any sentence within the scope of the statute as it was written on the date he committed his offense. Byrd v. State, 165 Miss. 30, 36-37, 143 So. 852, 853 (1932). A sixty year sentence was within that scope.

Alternatively, Allen argues that Section 97-3-79 had been stripped of its power to authorize any sentence by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d-346 (1972). Without doubt Furman had rendered the death penalty portion of the statute unenforceable. The power to impose a sentence less than death remained unimpaired. Cf. Capler v. State, 268 So.2d 338, 339-340 (Miss.1972); Lampley v. State, 308 So.2d 87 (Miss.1975).

B.

Our second question is one of discretion. This is not the first time we have faced this sort of situation: where after a criminal act the legislature ameliorates the punishment which may be imposed therefor. In such cases it is within the sentencing judge’s sound discretion to proceed under the new ameliorating sentencing statute, though he has the power to invoke the old statute. Miss.Code Ann. § 99-19-33 (1972); see also Lampley v. State, 308 So.2d 87 (Miss.1975); and Byrd v. State, 165 Miss. 30, 143 So. 852 (1932). We will reverse the sentencing judge only where there has been a clear abuse of that discretion.

We have reviewed Allen’s application filed June 4, 1982. Nothing in that application suggests any abuse of discretion. What — and all — Allen argues is that the sentencing judge erred as a matter of law, that he was in law bound to act under the amended statute and conversely that he was without power to impose any sentence not lawful under the amended statute. We have disposed of that contention above. Finding that Allen makes no charge of abuse of discretion, we have no alternative but to affirm.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . The applicable chronology is:
      May 23,1973 Allen robbed the bank
      April 23,1974 Sentencing statute amended
      November 18,1974 Allen sentenced to serve 60 years.

      . There is no ex post facto problem here, for Allen was sentenced under the statute as it existed on the date of his offense. This is what is supposed to be done. Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17, 24 (1981); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).


text:
    Nathaniel MORGAN v. STATE of Mississippi.
    No. 54538.
    Supreme Court of Mississippi.
    Oct. 12, 1983.
    Rehearing Denied Nov. 30, 1983.
    Keith Pisarich, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

AFFIRMED.


author: HAWKINS, Justice

text:
    Tony PENICK, Appellant, v. STATE of Mississippi, Appellee.
    No. 53805.
    Supreme Court of Mississippi.
    Oct. 12, 1983.
    Rehearing Denied Nov. 30, 1983.
    V. Douglas Gunter, Jackson, for appellant.
    Bill Allain, Atty. Gen., Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   HAWKINS, Justice

for the Court:

Tony Penick appeals from his conviction in the Circuit Court of Rankin County of the possession of more than one ounce, but less than one kilogram, of marijuana in violation of Miss.Code Ann. § 41-29-139(d)(2)(C) (1972, as amended) and a sentence of three years.

The only issue we address upon this appeal is the legality of the search of Penick and his possessions. The circuit judge ruled the search valid; persuaded otherwise, we reverse and remand.

FACTS

In mid-afternoon on April 2,1980, Penick, a native of Jackson, arrived at the Jackson Municipal Airport on a flight from Fort Lauderdale, Florida.

Also at the terminal were Ernest S. Ja-cobsen, special agent with the Drug Enforcement Administration, Mickey Robbins, an agent with the State Bureau of Narcotics, and other state drug agents. This federal and the state agents were there on an investigation unrelated to Penick.

Penick and Jacobsen were well acquainted, Penick being an informant for Jacobsen in his investigation into illicit drug trafficking, and, according to Jacobsen, he had contacted Penick on a daily basis for six to eight months.

Jacobsen testified that when Penick observed him he became “very nervous.” Nevertheless, Penick walked over and talked to Jacobsen. Penick asked Jacobsen what he was doing at the airport, and Ja-cobsen replied he was there to see a friend off on a plane.

Penick left, saying he had to make a phone call, and proceeded to a phone booth in the main terminal. Jacobsen said he observed Penick “peeking around the phone booth watching me.” Suspecting Penick, Jacobsen then notified other narcotic agents to keep their eye on Penick, that he, Jacobsen, was going to leave the terminal.

Penick left the phone booth, went to a restroom, and then walked outside the terminal to his pickup in the parking area.

As he got to his pickup, Penick was stopped by Robbins. Robbins identified himself as a state narcotics agent and was talking to Penick when Jacobsen walked over.

Jacobsen asked Penick to accompany them back to the airport and Penick went with them to a police office in the terminal. Penick testified he thought he had to go with them. Jacobsen and Robbins both testified Penick appeared nervous and, according to Robbins, Penick “appeared that he didn’t want to talk to anybody and he became upset when he got inside the police office there.”

When they got into the police office, Ja-cobsen and Robbins exited, leaving Penick behind with two police officers. According to Penick, he was told to “stay there,” and could not leave. Jacobsen said if Penick had wanted to leave, he would have had to go through him, but could have left.

Jacobsen and Robbins returned, took Pen-ick across the hall and began questioning him as to where he had been, where his ticket was, and whether he had any luggage.

Penick undressed, there was no contraband on his person, and Robbins left the room as Penick was putting his clothes back on.

The events immediately preceding Penick removing his clothes and what then transpired are in dispute.

According to Penick, following the questioning, he was told to empty his pockets, which he did, and then told to take off his clothes. He testified he did not feel he had a right to leave or to do other than as he was told, that the officers were direct and forceful. He said they found a claim ticket and Jacobsen told Robbins to go get the luggage. When Robbins returned with the suitcase, the officers opened it with a screwdriver.

According to Jacobsen, when he and Robbins took Penick across the hall and were questioning him, Penick was “acting real nervous,” and said: “I guess you want me to — want to search me, don’t you?” Jacob-sen testified he said, “Well, yes, if you don’t mind.” and Penick then took his clothes off.

Jacobsen testified that following the search and, as Penick was putting his clothes back on, a baggage receipt slip fell on the floor. Jacobsen testified that as he reached down to pick it up, Penick said, “Damn, Jake, I’ve got two pounds of grass in my bag.”

Jacobsen then walked to the door where Robbins was waiting outside and gave him the luggage ticket to go and get the bag.

According to Jacobsen, when the luggage was returned, Penick attempted to open the bag by the combination lock, but, being unable to do so, a screwdriver was used to open the bag. The marijuana was discovered inside and then Penick was placed under arrest and given the conventional Miranda warnings.

Robbins was not present at the time the baggage receipt was picked up by Jacobsen. He testified when the bag was retrieved, Penick opened it from a combination lock, he did not recall the screwdriver being used.

The first trial of Penick resulted in a hung jury and a mistrial. Robbins, who left the job as narcotics agent and was privately employed, did not testify at the first trial. He did testify at the second trial.

Penick made a pretrial motion to suppress the evidence, claiming his constitutional right against unreasonable search and seizure had been violated. Following hearing, at which Penick and Jacobsen testified, the motion was overruled.

Thereafter in both trials, and over Pen-ick’s objection, the evidence of marijuana found in the luggage was introduced before the jury.

Upon this appeal Penick assigns as error the trial judge’s overruling his motion to suppress.

LAW

Section 23 of the Mississippi Constitution provides:

Section 23. The people shall be secure in their persons, houses, and possessions, from unreasonable seizure and search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.

The Fourth Amendment to the United States Constitution provides:

AMENDMENT IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Was there a search and seizure in this case in violation of these Constitutions’ provisions?

We will refer first to our State Constitution as we have interpreted it over the years.

We do not have before us a search made as an incident to Penick’s arrest. This is not even contended by the state. Rather, it is the contention of the state that Penick consented to the search.

We agree with the astute and experienced circuit judge’s observation that there are “pickup truck loads” of cases on these issues. Our task cannot be to remove the nettlesome questions presented in search and seizure cases, but we will endeavor to avoid adding to the confusion. Yet, the razor’s edge gradation between search and seizure cases is often so difficult to define or delineate under the conventional principles we must apply in explaining our reasons, we are compelled to repeat the refrain: each of these cases must be judged on its own facts. We can go little further.

In Smith v. State, 133 Miss. 730, 98 So. 344 (1923), a search of the defendant’s home was challenged as being violative of her rights against unreasonable searches under Section 23 of our state Constitution. On the question of whether the defendant had consented to a search of her home, we stated:

[T]he occupant, as a matter of legal right, stands objecting to any unlawful search of her premises; and in order to waive her rights it must clearly appear that she voluntarily permitted, or expressly invited and agreed to the search, being cognizant of her rights in the premises when the officer proposed to her, by asking her permission, to make the search without a warrant. [Emphasis added] 133 Miss. at 736, 98 So. at 345.

This case is also authority for the principle that where an accused neither consents to nor objects to the search, this does not constitute a waiver.

Smith v. State has been cited in numerous subsequent decisions of this Court. See: Morton v. State, 136 Miss. 284, 101 So. 379 (1924); Boyd v. State, 164 Miss. 610, 145 So. 618 (1933); Lancaster v. State, 188 Miss. 374, 195 So. 320 (1940); Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953).

Quan v. State, 185 Miss. 513, 188 So. 568 (1939), again regarding Section 23 of our state Constitution, we stated: “A party, when he knows that a proposed search would he illegal, may waive the illegality and consent to the search; and when he does he may not thereafter complain of its illegality.” [Emphasis added] 185 Miss. 513, at 520, 188 So. at 569.

In order for there to be a valid consent to a search not otherwise authorized by law, must the person searched be aware he has the legal right to refuse? Put in a different way, in order for there to be a valid waiver of the Constitutional right against an illegal search, is it necessary that the person searched be aware of his right under the law to refuse?

Smith v. State and Quan v. State would clearly seem to answer both these questions “yes.”

Of course, the best way to prove a defendant had knowledge he did not have to consent to the search is for the officer to have told him. This was not done in this case. Penick testified he thought he was required to do as he was told, and he was told to empty his' pockets and undress.

The state’s proof to the contrary is tenuous, at best. The most the state offers on this is Jacobsen and Robbins testifying that Penick, while nervous and upset during their questioning of him, asked, “Do you want to search me?”. This question could as well have been an inquiry as an offer. According to Robbins, Jacobsen simply said, “Yes.”

This can hardly constitute clear evidence of knowledge on the part of Penick that he had a right to refuse.

A much more recent case of Luton v. State, 287 So.2d 269 (Miss.1973) would at first appear to cast some cloud on the rule announced in Smith v. State. In Luton the officers had lawfully arrested the defendant under a warrant, given him the full Miranda warnings, and then asked for permission to search the trunk of his car. At trial, he objected to objects found in the trunk being introduced into evidence. We there held that where the state relied on consent to a warrantless search, the standard to prove the waiver and consent was beyond a reasonable doubt. 287 So.2d at 271-72.

The defendant argued, however, that his Fourth Amendment right had been violated because the state had not proved he knew he had the right to refuse. We rejected the argument of a violation of his Fourth Amendment right under a then-recent U.S. Supreme Court decision, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In that decision the majority of the U.S. Supreme Court held proof of knowledge of the right to refuse was not in and of itself a necessary pre-req-uisite to admission of the evidence, but was a factor to be considered from a totality of the circumstances by the trial court in making a determination of whether there had been a valid consent. We will return to Schneckloth v. Bustamonte later in analyzing whether there was a Fourth Amendment violation.

The determination of whether there has been a constitutional violation of the protection against unreasonable searches and seizures, as we have above stated, depends on the facts of each case. It is obvious that there is a vast factual difference between Luton and this case. Luton was under a lawful arrest, based upon a warrant for his arrest, he had been given full Miranda warnings, including the right to counsel, right to remain silent, and then consented to a search of his car.

In this case there was no reasonable ground to place Penick under arrest, he was not under arrest, and no warning of any kind as to his rights was given before he was told to undress.

Again, in Cutchens v. State, 310 So.2d 273 (Miss.1975), we cited Schneckloth v. Bustamonte in rejecting a defendant’s argument that the Fourth Amendment to the U.S. Constitution required the state to prove the defendant had been informed of his rights before a blood test was taken from him. Nor, was the state required to prove he knew he had a right to refuse as a pre-req-uisite to admission of results of the test. Rather, this was a factor to be considered by the trial judge from the totality of the circumstance as to whether the consent had been freely given.

In Cutchens we approved our holding in Luton. On the facts, there is a marked distinction between Cutchens and this case. In Cutchens there had been an automobile accident in which a person was killed. The officer, who was acquainted with the defendant, saw the defendant in the emergency room of the hospital smoking, where there was a “no smoking” sign. As he approached the defendant to tell him to put out his cigarette, he smelled alcohol on the defendant’s breath. The defendant admitted drinking, and the officer asked a medical technologist to remove blood. The medical technologist explained the purpose of the blood sample to the defendant, who thereupon signed a written consent to take his blood, and made no objection to the removal of his blood.

In Cutchens, under the authority of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the officer had a lawful right to remove the defendant’s blood whether he consented or not. The taking of a blood sample from Cutch-ens was a lawful incident to his arrest for the charge of manslaughter by operating a motor vehicle while under the influence of intoxicating liquor. Schmerber v. California should put to rest any contention that taking a blood sample as a lawful incident to an arrest for driving while intoxicated violates either the Fourth, Fifth or Sixth Amendments to the U.S. Constitution.

Finally, in Cutchens and Luton we were not asked to address a violation of Section 23 of our state Constitution.

We believe Smith v. State was a sound holding in interpreting Section 23 of our state Constitution, and we do not abandon our ruling therein in the interpretation of our state Constitution.

In Luton and Cutchens we were bound to follow the holding of the U.S. Supreme Court’s interpretations of the Fourth Amendment to the U.S. Constitution. Yet, neither consistency nor wisdom would be served by our overruling or diluting our own interpretation of Section 23 of our state Constitution.

We accord to the U.S. Supreme Court the utmost respect in its interpretation of the U.S. Constitution. We must, however, reserve for this Court the sole and absolute right to make the final interpretation of our state Constitution and, while of great persuasion, we will not concede that simply because the U.S. Supreme Court may interpret a U.S. Constitutional provision that we must give the same interpretation to essentially the same words in a provision of our state Constitution. This is especially true of a decision from that Court in which the proponents for opposing points of view each give clear and cogent argument in support of their respective positions. Indeed, so lucid, that Court is so sharply divided that a change in a single member’s point of view would change the result in the case.

Our necessary holding in Luton and Cutchens, following the U.S. Supreme Court’s interpretation of the Fourth Amendment should not be construed as diminishing or diluting the strength of Smith v. State and Quan v. State in their interpretation of Section 23.

We, therefore, hold that under Section 23 of the Mississippi Constitution, and the facts of this particular case, the state failed to prove beyond a reasonable doubt or by clear evidence that there was a knowledgeable waiver by Penick of his state constitutional right not to be searched.

In this case the investigation, search and arrest of Penick was virtually a solo performance by an officer of a United States agency. Yet, Penick was not charged and prosecuted in a United States District Court as he could have been for possessing and transporting marijuana. Instead, he was charged and prosecuted in a state court. In a United States District Court, our state Constitution would offer no obstacle to the validity of his search and arrest.

The seizure and search in this case also violated the Fourth Amendment to the U.S. Constitution, under decisions of the U.S. Supreme Court, albeit for reasons we have not addressed under our Section 23, and do not address in this case. In following the U.S. Supreme Court on Fourth Amendment construction, we do not necessarily hold we would interpret Section 23 in precisely the same manner. The words of our Mississippi Constitution are not balloons to be blown up or deflated every time, and precisely in accord with the interpretation the U.S. Supreme Court, following some tortuous trail, is constrained to place upon similar words in the U.S. Constitution. Putting the matter another way, although the sheet music might appear the same, in reading the musical score of our Mississippi Constitution we are not required to play the same tune the U.S. Supreme Court may play in its rendition from the musical score of the U.S. Constitution.

The U.S. Supreme Court has had occasion to make more detailed and intensive review of Fourth Amendment rights than we have. We will examine those cases which lead us to conclude there was a Fourth Amendment violation here.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a detective with over 30 years experience with shoplifters and pickpockets observed three men acting suspiciously in front of a store. Two of them walked back and forth in front of a store window six times each, peering into the store. They then conferred with a third man on the corner and returned to the store window, looking inside. The two men followed the third man. The officer considered it his duty to investigate. He followed the two until they met up with the third.

Apprehending they might be armed, the officer approached them, identified himself as a police officer, and asked their names. Hearing only a mumble, the officer grabbed one of them, Terry, and spun him around so he and Terry were facing the other two. The officer then patted the outside clothing of Terry and felt a pistol, which he removed. In like manner he “frisked” the others and found a concealed weapon on one of them.

Terry was prosecuted for carrying a concealed weapon. He challenged the seizure and search as a violation of his Fourth Amendment rights.

The U.S. Supreme Court held that under the Fourth Amendment1 there was a seizure of Terry when he was grabbed by the officer and a search when the outside of his clothing was patted. The Court also found, however, that although the officer did not have probable cause for arrest, he did have reasonable reason and authority to stop these individuals for a momentary investigation to ask a few questions, and in the exercise of this authority under the circumstances, for his own protection to make this limited seizure and search for weapons. The search and seizure in this case was held to have been reasonable and therefore valid.

The Court stated:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonable prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, 392 U.S. 1 at 27, 88 S.Ct. 1868 at 1883, 20 L.Ed.2d at 909.

And

Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken. [Emphasis added] 392 U.S. 1 at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.

A close examination of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) reveals that case is of little benefit to the state here. Bustamonte was a passenger, and one of six people, in an automobile stopped by police officers. The owner of the car was not in the automobile, but his brother Alcala, was. The driver had no driver’s license. The officers asked Alcala if they could search the car, and he replied, “Sure, go ahead.” There was no threat of any kind, and Alcala helped in the search by voluntarily opening the glove compartment and trunk with keys. Wadded up under the rear seat were three stolen checks, which were offered in evidence in a trial against Bustamonte. On the motion to suppress the evidence, neither Alcala nor Bustamonte testified.

The question before the U.S. Supreme Court was whether the state of California was required to prove, as a pre-requisite to the introduction into evidence of the checks, that there was knowledge on the part of Alcala that he had the legal right to refuse permission to search.

The U.S. Supreme Court held it was not necessary for the state to offer this proof as a pre-requisite to introduction of the evidence.

The Court concluded:

Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. [Emphasis added] Schneckloth v. Bustamonte, 412 U.S. at 248, 93 S.Ct. at 2059, 36 L.Ed.2d at 875.

In any case in which trial courts seek to give effect to the holding in Bustamonte, it would be well to note the following footnote in Bustamonte:

[T]he present case does not require a determination of the proper standard to be applied in assessing the validity of a search, authorized solely by an alleged consent that is obtained from a person after he has been placed in custody. We do note, however, that other courts have been particularly sensitive to the heightened possibilities for coercion when the “consent” to a search was given by a person in custody. 412 U.S. at 241, n. 29, 93 S.Ct. at 2055, n. 29, 36 L.Ed.2d at 870-871, n. 29. See also n. 36.

In holding the consent to have been voluntary, the Court also saw fit to note the circumstances under which it was given, as opposed to a person in a custodial interrogation.

Indeed, since consent searches will normally occur on a person’s own familiar territory, the specter of incommunicado police interrogation in some remote station house is simply inapposite. There is no reason to believe, under circumstance such as are present here, that the response to a policeman’s question is presumptively coerced .... [Emphasis added] 412 U.S. at 247, 93 S.Ct. at 2058, 36 L.Ed.2d at 874.

The thrust of Bustamonte is that in determining whether there has been a valid consent to some routine search, the Court will not make the same rigorous examination to determine whether there has been a conscious, deliberate waiver of known legal rights and knowledge of the full impact and consequence of such waiver, as will be applied in a confession, or more especially in guilty pleas or waiver of counsel made in court proceedings.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the defendant had been arrested without probable cause. While in custody and having received Miranda warnings, he confessed to a murder. The confession would have been admissible under the Fifth Amendment. The Court addressed the question of whether his “illegal” arrest, a “seizure” under the Fourth Amendment, vitiated the confession, rendering it inadmissible.

The Court held that in this situation the duty was upon the prosecution to prove from all the facts in the case that the casual chain between the illegal arrest and the confession had been broken. Was the confession, in effect, the “fruit of the poisonous tree” of the illegal arrest?

Again, the Court stated the facts in each case had to be examined. In this case the confession came about two hours following arrest, for investigation, and the Court held the confession came about as a result of the illegal arrest, and was therefore inadmissible.

The Court stated rights under the Fourth and Fifth Amendments frequently appeared to coalesce since searches and seizures under the Fourth Amendment were almost always made for the purpose of compelling a man to give evidence against himself and condemned by the Fifth Amendment.

In Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), the accused was taken into custody by the police for questioning, and after being fully warned of his rights, gave a confession. The U.S. Supreme Court, following the rationale of Brown supra held the confession inadmissible under Dunaway’s Fourth Amendment rights.

In the United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the border patrol stopped a car in which the three occupants appeared to be of Mexican descent. The driver was charged with transporting illegal aliens. He challenged the stop as being violative of his Fourth Amendment rights. The Court stated:

[BJecause of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be “reasonably” related in scope to the justification for their initiation. (392 U.S., at 29, 88 S.Ct. 1868 [at 1884], 20 L.Ed.2d 889). The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.

In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), a young black woman, who appeared to fit the “drug courier profile,” was approached and stopped by federal agents in the main concourse of the Detroit Municipal Airport as she left a plane.

The agents identified themselves when they stopped her, and asked to see her identification and airline ticket. Her driver’s license showed her name to be Menden-hall, but the ticket was in the name of “Annette Ford.” After another question or two, an agent asked her if she would accompany them to their office for further questions.

When they got to the office, the first question she was asked was whether she would permit a search of her person and handbag, but also told her she had the right to decline the search if she desired.

Mendenhall consented to the search, and a policewoman was summoned to conduct the search. The policewoman asked the federal agents if Mendenhall had consented to be searched, and they replied she had. Then, Mendenhall followed the policewoman into a private room. She was again informed she had the right to refuse a search. The search revealed heroin.

In Mendenhall, as distinguished from this case, the suspect clearly was informed she had the right to refuse the search.

The question before the U.S. Supreme Court was not whether Mendenhall had consented to the search, but whether prior to this search, there had been an unlawful violation of Mendenhall’s Fourth Amendment rights vitiating the subsequent search. It was conceded, as in this case, that there was no probable cause for an arrest.

By a five to four decision, the majority held no seizure had occurred because Men-denhall’s conduct up to the time she was asked if she consented to be searched was voluntary. The majority opinion held no seizure had occurred.

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. See Terry v. Ohio, supra, 392 U.S. at 19, n. 16, 88 S.Ct. at 1879, n. 16; Dunaway v. New York, 442 U.S. 200, 207 at n. 6, 99 S.Ct. 2248, 2253 [at n. 6], 60 L.Ed.2d 824; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. [Emphasis added] 446 U.S. at 554-55, 100 S.Ct. at 1877, 64 L.Ed.2d at 509-10.

The Court held there was no seizure in momentarily stopping Mendenhall in the main concourse. The Court also held that from a totality of the circumstances Men-denhall voluntarily consented to go with the officers to their office. On the motion to suppress, Mendenhall did not testify, while in this case Penick did.

In the Court’s view there was nothing about the officers’ testimony indicating anything except her decision to go to the office was free and voluntary. Her ticket and identification had been returned to her, and there was no show of force or threat of any kind when she was asked to accompany the officers to their office.

Four members of the Court disagreed. The dissenters were of the opinion Menden-hall was seized when there was no probable cause for arrest and the government did not meet its burden of showing Mendenhall voluntarily accompanied the officers to their office.

In Florida v. Royer, - U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the defendant was observed at the Miami International Airport by two state of Florida narcotics officers to fit the “drug courier profile.”

Royer, unaware of the attention he was receiving, purchased an airline ticket to New York, and put the name “Holt” on the luggage identification tag.

The two agents approached him, identified themselves as policemen working for the Dade County Sheriff’s Office, and asked if he had a moment to speak to them. Upon this request, Royer produced his driver’s license and airline ticket. The airline ticket, like the luggage ticket, had the name “Holt.” Royer became nervous, and the agents told him they were narcotics agents and suspected him of carrying narcotics. The officers did not return his airline ticket and identification, and asked Royer to accompany them to a room approximately 40 feet away. Royer accompanied them without reply. He was taken to a private room and one of the agents, using Royer’s ticket, retrieved the luggage. Royer was not asked for permission to retrieve the luggage.

When the luggage was brought into the room, Royer was asked if he would consent to a search of the suitcases. Without response, Royer produced a key and unlocked one of the suitcases himself, which the detective opened. Marijuana was found in the suitcase. The second suitcase had a combination lock and Royer was asked if he objected to prying the suitcase open; he replied, “No, go ahead.” The suitcase was then pried open and more marijuana was found. Royer was then placed under arrest. Approximately fifteen minutes had lapsed from the time Royer was first approached until his arrest, following discovery of the marijuana.

Royer made a motion to suppress the evidence and testified.

The Florida District Court of Appeals held that Royer had been involuntarily confined and the officers in effect had arrested Royer. The Florida court then concluded that Royer’s consent to search, given only after he had been illegally confined, was ineffective to justify the search and the search was invalid under the Fourth Amendment to the U.S. Constitution. The State of Florida was granted an appeal by the U.S. Supreme Court to determine whether there had been a Fourth Amendment violation.

The U.S. Supreme Court affirmed. The Supreme Court held the burden was upon the state to prove a free and voluntary consent to search, and it was not proved merely by showing the suspect had submitted to authority. The Court also held, under Terry v. Ohio, that officers do not violate Fourth Amendment rights by merely approaching an individual on the street or in a public place and asking him if he is willing to answer some questions and, if so, interrogating him briefly. The Court held that “reasonable suspicion” of crime was insufficient to justify a “custodial interrogation” or a full search of a person.

In holding the Fourth Amendment “seizure” of Royer vitiated the subsequent search, the Court stated:

Terry and its progeny nevertheless created only limited exceptions to the general rule that seizures of the person require probable cause to arrest. Detentions may be “investigative” yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person, or of his automobile or other effects. Nor may the police seek to vary their suspicions by means that approach the conditions of arrest. Dunaway v. New York, supra, made this clear....
... The scope of the detention must be carefully tailored to its underlying justification.
... Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. - U.S. at-, 103 S.Ct. at 1325, 75 L.Ed.2d at 237, 238.

The Court went on to state that the burden was upon the state to prove the seizure was sufficiently limited in scope to justify what was done.

The Court stated, 103 S.Ct. at page 1326: Sixth, if the events in this case amounted to no more than a permissible police encounter in a public place or a justifiable Terry-type detention, Royer’s consent, if voluntary, would have been effective to legalize the search of his two suitcases.... The Florida Court of Appeal in the case before us, however, concluded not only that Royer had been sized when he gave his consent to search his luggage but also that the bounds of an investigative stop had been exceeded. In its view the “confinement” in this case went beyond the limited restraint of a Terry investigative stop, and Royer’s consent was thus tainted by the illegality, a conclusion that required reversal in the absence of probable cause to arrest. The question before us is whether the record warrants that conclusion. We think that it does. - U.S. at -, 103 S.Ct. at 1326, 75 L.Ed.2d at 238-239.

In rejecting to the State’s claim that at the time Royer consented to the luggage search, he was not being legally detained, the Court stated:

We find this submission untenable. Asking for and examining Royer’s ticket and his driver’s license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for the purpose of the Fourth Amendment. These circumstances surely amount to a show of official authority such that “a reasonable person would have believed he was not free to leave.” Citing Mendenhall, supra, (opinion of Stewart, J.) - U.S. at -, 103 S.Ct. at 1326, 75 L.Ed.2d at 239. . What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous examinations, sought to confirm their suspicions.... Royer was never informed that he was free to board his plane if he so chose, and he reasonably believed that he was being detained ... As á practical matter, Roy-er was under arrest. - U.S. at -, 103 S.Ct. at 1327, 75 L.Ed.2d at 240.

And

We do not suggest that there is a litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop. Even in the discrete category of airport encounters, there will be endless variations in the facts and circumstances, so much variation that it is unlikely that the courts can reduce to a sentence or a paragraph a rule that will provide unarguable answers to the question whether there has been an unreasonable search or seizure in violation of the Fourth Amendment. • Nevertheless, we must render judgment, and we think that the Florida Court of Appeal cannot be faulted in concluding that the limits of a Terry-stop had been excludéd. -U.S. at -, 103 S.Ct. at 1329, 75 L.Ed.2d at 242.

The Court concluded that any consent Royer gave was tainted by the illegality of his “seizure,” and therefore ineffective.

The majority opinion never addressed the question of Schneckloth v. Bustamonte, whether it was necessary that Royer have known that he had a right to decline the search. It seems to hold that whether he freely and voluntarily consented to the search or not was immaterial, because he had in effect been placed under arrest without probable cause, and this tainted the search, under the rationale of Brown v. Illinois and Dunaway v. New York.

The Royer decision came from a sharply divided Court. Four of the dissenting Justices were of the opinion his detention was reasonable, and there was no question but that the consent was voluntary.

In this case the federal agent was not confronted with exigent circumstances such as Mendenhall or Royer. Penick was not deplaning to some distant place, but coming home. He was not a stranger, but a confidential informant of Jacobsen’s with whom he had daily contact.

The conclusion is inescapable that in this case the search went beyond Terry v. Ohio and there was no Schneckloth v. Bustamonte setting on the question of consent.

Penick was not informed he had a right to refuse the search, as in Mendenhall.

Although his airline ticket was not detained as in Royer, there can be little question but the degree of “custodial” interrogation” in this case equalled Royer.

Thus, under the holding of Royer, we must hold the Fourth Amendment was violated in the detention of and custodial interrogation of Penick in the police office, thereby tainting the search. See also: Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); U.S. v. Warren, 578 F.2d 1058 (5th Cir.1978); U.S. v. Morin, 665 F.2d 765 (5th Cir.1982).

As we noted initially, this is but one case, judged upon the particular facts presented.

This Court is thoroughly committed to the proposition that an illegal arrest renders a subsequent search inadmissible. See: Pollard v. State, 233 So.2d 792 (Miss.1970); Terry v. State, 252 Miss. 479, 173 So.2d 889 (1965); Smith v. State, 228 Miss. 476, 87 So.2d 917 (1956); Lewis, et al v. State, 198 Miss. 767, 23 So.2d 401 (1945); Hinton, et al v. Sims, et al, 171 Miss. 741, 158 So. 141 (1934); Castillow v. State, 160 Miss. 473, 135 So. 205 (1931); Myers v. State, 158 Miss. 554, 130 So. 741 (1930).

We, therefore, reverse and remand for proceedings in the Circuit Court consistent with this opinion.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

WALKER, P.J., dissents.

      . Penick did not have his airline ticket when questioned or searched. Had his airline ticket been in another person’s name, it would have been a suspicious circumstance.

      . Criteria of a “drug courier profile” noted: Mendenhall was coming from Los Angeles, a place of origin for drugs, she was the last person to leave the plane, was nervous, looked around whole area, she went past luggage area without getting any luggage, and changed airlines for her flight out of Detroit.

      . Had Penick been told he had a right to refuse the search, as Mendenhall was told, this would clearly have removed any question of consent under § 23, as interpreted in Smith v. State, supra.

      . The profile: carrying heavy luggage, young (between 25 and 35), casually dressed, pale and nervous, looking around for other people, paid for ticket in cash with large roll of bills, did not complete airlines identification ticket showing address and telephone number.

      . The opinions in Royer v. State, 389 So.2d 1007 (Fla.App. 1980) are most illuminating. Royer was carrying 65 pounds of marijuana in his luggage.
      The trial court overruled the motion to suppress on the ground Royer had freely and voluntarily consented to the search. Upon appeal the panel over the District Court of Appeal of Florida (with one dissent) affirmed. Upon motion for re-hearing, the full court sustained the motion and reversed. The majority held Royer had in effect been seized when taken into custody, and any consent he gave for the search was tainted by his illegal detention and rendered the search involuntary. The specific question of whether a consent based upon knowledge of right to decline was never addressed.
      Justice Barkdull, however, in specially concurring, was of the view that the search was invalid because the officers did not inform Roy-er he could decline the search, as well as their retaining his airline ticket.

      . Indeed, it flies in the face of common experience that a person accosted in an airport as Penick was, and asked to accompany the officers to a private room and told to wait, would think he could say “bye-bye” and that would end the matter. We believe, however, the holding of Brown v. Illinois and Dunaway v. New York are over-extended in application to airport encounters. We can see nothing unreasonable in a short detention, and if the suspect is then told he has the right to decline a search, or if the state shows he knew he could refuse the search, the fruits of the search should be admitted into evidence. In deference, we believe this makes a much clearer reason for permitting or rejecting the evidence than extending the rationale of Brown and Dunaway to these situations.


author: TORBERT, Chief Justice.

text:
    Debra H. ROAN v. FIRST NATIONAL BANK OF DECATUR.
    82-716.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    Rehearing Denied Nov. 4, 1983.
    Harvey Elrod of Hutson & Elrod, Decatur, for appellant.
    Thomas A. Caddell of Caddell, Shanks, Harris, Moores & Murphree, Decatur, for appellee.
   TORBERT, Chief Justice.

The judgment is affirmed on the authority of Land v. Bowyer, 437 So.2d 524 (Ala.1983). See Brown v. Wakefield, 437 So.2d 112 (Ala.1983).

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: BEATTY, Justice.

text:
    LOUISVILLE & NASHVILLE RAILROAD v. Ronald T. ATKINS.
    82-316.
    Supreme Court of Alabama.
    Nov. 4, 1983.
   ON RETURN TO REMAND

BEATTY, Justice.

On August 5,1983, this case was remanded to the Jefferson Circuit Court to enable that court to advise this Court as to whether or not plaintiff’s motion for a new trial had been granted on the basis of Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir.1982), a decision rendered after the trial of this case. For an understanding of the necessity for this remandment, see our August 5, 1983, opinion in this case, Louisville & Nashville Railroad v. Atkins, 435 So.2d 1275 (1983). The Jefferson Circuit Court has complied with the directions of this Court and, in doing so, has advised that the new trial heretofore granted in this case was based upon Culver, supra.

Our earlier opinion contains a discussion of the reasons why Culver could not be made a basis upon which a new trial could be granted in this particular instance. Accordingly, we have no alternative but to reverse the order of the distinguished trial court and to remand this case to that court for entry of a judgment consistent with our opinion of August 5, 1983. It is so ordered.

REVERSED AND REMANDED.

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


text:
    James Dewey HULSEY v. FIRST NATIONAL BANK, et al.
    82-590.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    Louis W. Scholl, Birmingham, for appellant.

      H. Thomas Wells, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees.
   BEATTY, Justice.

Affirmed on the authority of Boshell v. Keith, 418 So.2d 89 (Ala.1982).

AFFIRMED.

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


author: PER CURIAM.

text:
    Gary SNELLINGS v. HARDEE’S INC., et al.
    82-845.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    Edward L. Hardin of Hardin & Hollis and David Cromwell Johnson of Johnson & Johnson, Birmingham, for appellant.
    Robert M. Girardeau of Huie, Fernam-bucq & Stewart, Birmingham, for appellees.
   PER CURIAM.

Affirmed on the authority of Latham v. Aronov Realty Co., 435 So.2d 209 (Ala.1983); Berdeaux v. City National Bank of Birmingham, 424 So.2d 594 (Ala.1982); Parham v. Taylor, 402 So.2d 884 (Ala.1981).

AFFIRMED.

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


text:
    Odessa L. McGOWN v. K-MART CORPORATION, et al.
    82-1175.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    Sherri T. Powell of Gray, Seay and Lang-ford, Montgomery, for appellant.
    Michael S. Jackson of Melton & Espy, Montgomery, for appellees.
   PER CURIAM.

Affirmed on the authority of Code 1975, § 15-10-14, and Super X Drugs of Alabama, Inc. v. Martz, 51 Ala.App. 370, 286 So.2d 47 (1973) (cited with approval in S.S. Kresge Co. v. Ruby, 348 So.2d 484, 490 (Ala.1977)).

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Dorothy V. EZELL v. William George EZELL.
    Civ. 3481.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1983.

      Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellant.
    L.D. Owen, III of Owen & Cherry, Bay Minette, for appellee.
   BRADLEY, Judge.

This is an appeal from a modification of a divorce decree.

The parties to this proceeding were divorced on October 17, 1980 by a decree of the Circuit Court of Baldwin County. The decree incorporated a settlement agreement which awarded the wife custody of the parties’ two minor children, and periodic alimony and child support of $500 per month. The father was given reasonable visitation privileges, with such visitation to be decided by the mother.

On May 4, 1982 the husband filed a petition seeking a modification of the alimony and support payments due to a material change in his financial circumstances, and to be allowed more specific visitation with the children.

It appears that a hearing was held on the petition on June 8, 1982, although there is no court order to that effect in the record, nor is there a transcript of the evidence taken at that hearing.

On June 18, 1982 the wife filed a petition for rule nisi on the ground that her ex-husband failed to make the alimony and child support payments since the June 8 hearing and was $125 in arrears.

On June 22, 1982 the husband filed a motion for rehearing, alleging the trial court denied his petition to modify at the June 8 hearing, and that since the hearing he has obtained additional information in support of the petition.

After an ore tenus hearing on the rule nisi and motion for rehearing on August 27, the trial court found the husband $750 behind in child support and reduced the $500 per month alimony and child support award to $350 per month child support. The court also granted the father visitation on the second weekend of each month. The ex-wife appeals from the order granting the rehearing and modifying the divorce decree.

The appellant argues here that the trial court erred in modifying the divorce decree by eliminating alimony for the wife and requiring that the husband pay only child support. It is her position that only two years have elapsed since the divorce and the hearing, and that her ex-husband has not been able to prove any material change of circumstances to warrant a modification.

In Alabama a trial court has the discretion to modify periodic alimony and child support awards based upon a substantial change of circumstances, and a modification will not be reversed except for an abuse of that discretion. Wier v. Wier, 410 So.2d 78 (Ala.Civ.App.1982); Sansom v. Sansom, 409 So.2d 430 (Ala.Civ.App.1981). Also, the burden of proving a material change in circumstances rests on the one seeking modification. Jenkins v. Jenkins, 418 So.2d 137 (Ala.Civ.App.1982). In this case the one seeking modification is the father and the burden of proof rests on him.

The record on appeal contains the evidence taken at the August 27,1982 hearing, but it does not contain the evidence taken at the June 8, 1982 hearing.

Where it appears that the record on appeal does not contain all of the evidence presented to the trial court and upon which it based its ruling, the conclusive presumption here is that the trial court’s decree is supported by the evidence and must be affirmed. Glass v. Glass, 405 So.2d 37 (Ala.Civ.App.1981).

The record before us does not contain all of the evidence which was before the trial court and upon which it based its modification order. We must, therefore, affirm its judgment.

Appellant’s request for an attorney’s fee on appeal is denied.

AFFIRMED.

HOLMES, J., concurs.

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


author: WRIGHT, Presiding Judge.

text:
    Marcella Martinez McKIM v. Gary Lee McKIM.
    Civ. 3805.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1983.

      J. Floyd Minor and James T. Sasser of Wood, Minor & Parnell, Montgomery, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

The parties were divorced in 1979. Custody of two minor daughters was given to the mother. In 1980, husband filed a petition for a change of custody. After hearing, the petition was denied. However, there was entered an order directing the mother to refrain from permitting men, not related, to visit in her home while the children were present after 9:30 P.M.

In 1982 the father again filed a petition for change of custody of the younger (13) daughter from the mother because she was in violation of the order pertaining to male visitation.

The petition was heard orally by the court. The mother by answer admitted the violation of the previous order. She presented no evidence at the hearing.

The court found the mother to be in contempt of its order. She was fined the sum of $100. Temporary legal custody of the daughter, Meredith, was given to the Autauga County Department of Pensions and Security. Physical custody was permitted to remain in the mother. The sum of $450 was awarded to the father’s attorney as an attorney fee. The wife appealed.

The first issue presented is whether the court erred in granting a change in custody. The mother contends error because there was neither pleading nor proof of a material change in circumstances.

It is the premise of the mother that even though she admitted violating the order of the court and there was uncontroverted testimony that a man had spent many nights in her home, there was no proof of a material change of circumstances. We do not accept that premise. It is clear that the often and regular presence in the home overnight of an adult male not the father of the children nor the husband of the mother, is not only a contumacious violation of the orders of the court, but also a circumstance not present in the prior proceedings. That such events are not material circumstances cannot reasonably be contended.

The mother, citing Patterson v. Patterson, 399 So.2d 846 (Ala.Civ.App.1980), contends that her conduct in permitting a boyfriend to regularly spend nights with her in the presence of her teenage daughter does not support a change of custody. She further contends there is no evidence that her children were present on such occasions. We observe that in the absence of any evidence that her children were not present in the home on such occasions, it was only reasonable for the court to conclude that they were there in their own home. We must comment that each case is viewed in light of its own evidence. This case is not the Patterson case. To construe what was said in Patterson to mean that repeated immoral conduct by a parent in the home of the children or with their knowledge, particularly impressionable teenagers, may not be reason for removing custody from such parent, is to err. Neither would it be proper to conclude from Patterson that sexual misconduct must occur in the physical presence of children for it to be material to their welfare. In short, we find substantial support in the evidence for the judgment of the court in modifying custody of the minor child. It is therefore not erroneous. Raidt v. Crane, 342 So.2d 358 (Ala.1977).

We find the second issue, the propriety of the order of the court requiring the mother to pay a fee of $450 to the attorney of the father, to be well taken. There was not only no request for such fee; there was no evidence indicating a financial need of the father for such assistance, nor a financial ability of the mother to pay it. We have found such to be necessary in actions for divorce. Tidwell v. Tidwell, 379 So.2d 614 (Ala.Civ.App.1980); Cinader v. Cinader, 367 So.2d 487 (Ala.Civ.App.1979).

We reverse that part of the judgment requiring the payment by the mother of the husband’s attorney fee. The judgment otherwise is affirmed.

Appellant’s request for attorney fees on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . Whether the order was a proper exercise of the authority of the court is not here presented.