text:
    BLUE CROSS AND BLUE SHIELD OF ALABAMA v. Shirley B. FREEMAN and Billy Freeman.
    Civ. 3921.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1983.
    Rehearing Denied Jan. 11, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-466.
    Writ Denied on Rehearing ex mero motu March 30, 1984.
    William G. Somerville, Jr. and Janet L. Wilson of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
    Albert P. Brewer of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment granting to plaintiffs an attorney’s fee and a share of litigation expenses from the funds recovered from defendants and due Blue Cross-Blue Shield as plaintiffs’ subrogee.

The plaintiffs Freeman were injured in an automobile collision with defendant Beard. Plaintiffs brought suit against Beard on April 16, 1982, claiming damages, including medical expenses, arising out of the collision. Previously, Blue Cross, as medical insurer of plaintiffs, had paid to them or on their behalf the sum of $1,550.20.

On April 19, 1982, a subrogation specialist employed by Blue Cross notified counsel for plaintiffs by letter that Blue Cross was subrogated to the right of recovery of plaintiffs in the amount of $1,550.20. The letter advised counsel that such sum should be remitted by his client to Blue Cross within one week after any settlement or judgment by plaintiffs.

On the same date, said specialist wrote State Farm Mutual Auto Insurance Company, the insurer of defendant Beard, of its subrogation rights and the amount due thereunder. Demand was made upon State Farm for payment in such amount before paying plaintiffs. State Farm responded to the letter on April 30, 1982, advising that plaintiffs had brought suit against its insured in Morgan County Circuit Court. Suggestion was made to Blue Cross that it become a party to that lawsuit or reach agreement with its insured (plaintiffs) to protect its interest.

On May 13, 1982, counsel for plaintiff responded by letter to the letter from Blue Cross. He recounted the demand by Blue Cross upon him to honor its subrogation rights from any settlement or judgment made of plaintiffs’ claim. He observed that Blue Cross had apparently made a demand upon the defendant or his insurer for payment, because he had received a copy of a motion filed on May 10, by defendant to add Blue Cross as a party plaintiff. Counsel then stated that if such demand upon defendant had been made, he assumed that the notice to him for payment from any recovery was being abandoned and that Blue Cross was now going to pursue its subrogation interest directly against the defendant. He then suggested that Blue Cross file to intervene to assert its claim against defendant. He further said that plaintiffs would not interfere with or make any claim for benefits to which Blue Cross was entitled by way of subrogation. A copy of defendant’s motion to add Blue Cross as a party plaintiff was enclosed in the letter.

In the interim between filing suit and the exchange of the letters, plaintiffs and defendant were proceeding with discovery, including extensive interrogatories with answers from each side, and medical depositions. Blue Cross thereafter moved to intervene and filed its complaint based upon its right of subrogation. It demanded judgment only against the recovery by plaintiffs up to the amount of the benefits it had paid to plaintiff Shirley B. Freeman. Subsequently, counsel for Blue Cross appeared in court for a status conference where possibility of settlement was discussed before the court. The parties indicated they were far apart on settlement discussion, and trial was set for April 11, 1983. Counsel for Blue Cross informed the court that a motion for summary judgment with supporting affidavit would soon be filed. It was so filed and conditional summary judgment was entered in favor of Blue Cross. The conditional judgment was not against the defendant, nor was it based upon a determination of liability of defendant nor upon the amount of damages plaintiffs were due to recover. The judgment was solely in favor of Blue Cross for the amount of $1,585.40 and against any funds recovered by plaintiffs from defendant. Blue Cross did not appear on the date set for trial. Its counsel previously informed other counsel and the court that in view of its previous judgment it would not appear at trial unless requested to do so.

On trial date, April 14, 1983, the matter was settled, after negotiations between original plaintiffs and defendant, for $13,-000. Judgment in that amount was entered on April 29, 1983, in favor of plaintiffs. On April 27, plaintiffs filed a motion to assess against the judgment of Blue Cross a pro rata share of attorney fees and expenses incurred in the prosecution and recovery of the judgment against defendant.

The motion was heard by the court upon affidavit and argument, and judgment in the amount of $573.16 rendered in favor of plaintiffs’ attorney on June 27, 1983. From that order Blue Cross has appealed.

The theory or principle upon which the court based its judgment is termed the “fund” or “common fund” doctrine. The principle is an equitable concept that one person who assumes the risks and expense of litigation and has thereby secured, augmented or preserved property or a fund of money in which others are entitled to share, is due a contribution toward such expense from those sharing according to their interest. Such pro rata contribution may be a charge upon the fund so secured or preserved. King v. Smith, 247 Ala. 1, 22 So.2d 336 (1945). The common fund theory has been recognized as an equitable principle at common law by Alabama courts prior to enactment of § 34-3-60, Code of Alabama 1975 and its predecessors. Grimball v. Cruse, 70 Ala. 534 (1881). The principle has been discussed as recently as our cases of Henley & Clarke v. Blue Cross-Blue Shield of Alabama, 434 So.2d 274 (Ala.Civ.App.1983) and Williams v. Williams, 424 So.2d 638 (Ala.Civ.App.1982).

We have not been cited to any Alabama case which has applied the “fund" principle to a recovery by an insured upon his suit for total damages, a part of which is due his insurer under right of subrogation. However, other states have done so. The basic case most often cited as authority in other jurisdictions is United Services Automobile Association v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961), 2 A.L.R.3d 1922. The rule pronounced in Hills has been quoted in subsequent cases in Nebraska and in other jurisdictions as well. Travelers Insurance Co. v. Williams, 541 S.W.2d 587 (Tenn.1976); State Farm Mutual Insurance Co. v. Clinton, 518 P.2d 645 (Ore.1974); Krause v. State Farm Mutual Insurance Co., 184 Neb. 588, 169 N.W.2d 601 (1969); Lemmer v. Karp and Hartford Insurance Co., 56 Ill.App.3d 190, 13 Ill.Dec. 720, 371 N.E.2d 655 (1977).

The rule is that where the holder of the subrogation right does not come into the action, whether he refuses to do so or acquiesces in the plaintiffs’ action, but accepts the avails of the litigation, he should be subjected to his proportionate share of the expenses thereof, including attorney’s fees. Hills, supra. Put another way, an attorney, whose efforts result in recovery of funds in which various persons have an interest, is entitled to payment from such funds of a reasonable fee for his representation of the common interest. In the case of an insured’s recovery of damages in which the insurer has an interest as subro-gee after payment to the insured, an equitable right to such fee, aside from contract, may arise from the trust aspect of the subrogation provision in the policy. State Farm Mutual Insurance Co. v. Clinton, supra.

Blue Cross in brief recognizes the existence of the common fund doctrine. It contends it inapplicable in this case because of the intervention by its own counsel and the obtaining of a conditional judgment. Blue Cross submits that prevailing case law presents the proposition that intervening in the suit of one having an interest in the recovery precludes the common fund doctrine from application.

Upon its face the contention of Blue Cross appears correct. The cases cited by Blue Cross and previously mentioned herein do stand for the proposition that one who joins as a party in the suit, assists in the prosecution or contributes toward the expense of the recovery of the fund, is not chargeable with contribution to any other attorney fees or expenses. However, we opine that a mere appearance as an interve-nor by an insurer for the purpose of securing a conditional judgment for its subrogation claim against the amount recovered by its insured does not aid or assist in the recovery of the common fund. Plaintiff submits such action may rather hinder recovery than aid or assist in it.

As has been previously shown, Blue Cross appeared after pleadings and principal discovery had been completed. It did not join as a subrogee of a part of plaintiffs’ cause of action to aid plaintiffs in the prosecution of the suit. It appeared only to secure judgment against the insured for return of funds paid to its insured in the event the insureds were successful in their prosecution of the entire cause of action. It then retired from the field of battle, declining to assist or give aid at trial. The effect of the summary judgment against plaintiffs’ recovery was to force the insured to represent the interest of Blue Cross at trial or in settlement after having told Blue Cross they would not do so. Thereafter, recovery of the fund, including the amount due Blue Cross, was obtained solely through the effort of counsel for Blue Cross without the active or passive participation of Blue Cross.

It is the opinion of this court that the mere appearance or intervention in the case by counsel for Blue Cross solely for the purpose of reducing its claim for subro-gation to a judgment or lien against the recovery of the plaintiff-insureds, does not satisfy the requirement of active participation or assistance in the prosecution in the case. The facts in the case are clear that Blue Cross did nothing to assist the recovery of the common fund from which it claimed $1,585.20. Rather than aid and assist plaintiffs, Blue Cross elected to collect its subrogation claim from the avails of the litigation and settlement secured solely by the efforts and expense of counsel for plaintiffs. Equity and justice require it to pay its proportionate share of attorney fees and expenses incurred by plaintiff. Hills, supra; Lemmer, supra.

We affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: ROBERT M. PARKER, Retired Circuit Judge. ROBERT M. PARKER, Retired Circuit Judge.

license: Public Domain

text:
    David GRISSETT v. Hazel McKinney GRISSETT.
    Civ. 3970.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.
    Rehearing Denied Feb. 29, 1984.
    Joseph W. Adams, Birmingham, for appellant.
    Bert Lindbergh, Birmingham, for appel-lee.
   ROBERT M. PARKER, Retired Circuit Judge.

Appellee filed motion in trial court to hold appellant in contempt of court for failure to pay child support and to provide medical insurance coverage. The trial court found that appellant was in contempt of court at the time the motion was filed but had purged himself of contempt prior to the hearing by compliance with the judgment of divorce and was not in contempt at the time of the hearing and discharged the appellant. The trial court then awarded appellee’s attorney a fee for his services.

Section 30-2-54, Ala.Code (1975), states,

“In all actions for divorce or for the recovery of alimony, maintenance or support in which a judgment of divorce has been issued or is pending and a contempt of court citation has been made by the court against either party, the court may, of its discretion, upon application therefor, award a reasonable sum as fees or compensation of the attorney or attorneys representing both parties.”

This statute has been construed to mean that attorney’s fee in enforcement proceedings may not be awarded when no contempt citation is made. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App. 1980); Scott v. Scott, 375 So.2d 797 (Ala. Civ.App.1979); Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978).

The trial court, failing to cite appellant for contempt of court, erred in awarding appellee’s attorney a fee.

Judgment of the trial court is hereby reversed and rendered.

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

REVERSED AND RENDERED.

All the Judges concur.

ON REHEARING

ROBERT M. PARKER, Retired Circuit Judge.

The appellee argues on motion for rehearing that the rule nisi is a citation by definition from Black’s Law Dictionary. The word citation in § 30-2-54, Ala.Code (1975), has been held to mean a finding by the court that the party was in contempt of court. Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978). To do otherwise would be violative of due process of law.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: HOLMES, Judge.

text:
    H.E. MILLER, individually and d/b/a M & M Discount Center v. David H. CULVER.
    Civ. 3901.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.

      H.E. Miller, Jr., Nashville, Tenn., for appellant.
    David H. Culver, pro se.
   HOLMES, Judge.

This is an appeal from a judgment in a case concerning attorney's fees and the denial of a counterclaim for breach of contract and “negligent legal malpractice.”

After an ore tenus hearing, the trial court found for the plaintiff on his claim for attorney’s fees and awarded $1,320. The trial court found against the defendant on his counterclaim. The defendant now appeals and we affirm.

The defendant (hereinafter Miller) raises several issues on appeal. He first contends that a change of venue should have been granted. Second, Miller contends that he was entitled to a jury trial. Third, Miller contends that, after refusing to grant a jury trial, the trial court erred in not issuing findings of fact and conclusions of law. Lastly, Miller contends that the evidence was insufficient to support the trial court’s judgment, and that he was entitled to recover on his counterclaim.

For purposes of clarity we will detail the pertinent facts as they relate to the specific issues in question.

I

Miller first contends that he should have been granted a change in venue pursuant to § 6-3-20, Ala.Code (1975). Miller bases his contention on the allegation that he could not receive a fair trial in Madison County Circuit Court.

The plaintiff (hereinafter Culver) brought suit against Miller to recover attorney’s fees from Miller. Culver is a practicing attorney at law in Madison County, and he practices regularly before the Madison County Circuit Court. Miller contends that Culver also conducted ex parte communications with the trial court on two occasions prior to and concerning the trial of the case at bar.

It is Miller’s position that because Culver is an attorney regularly practicing before the Madison County Circuit Court and because Culver communicated ex parte with the court on two occasions, he (Miller) could not receive a fair and impartial trial without a change in venue. This court believes that Miller’s contention is without merit.

The simple fact that Culver comes before the circuit court in his role as an attorney and has done so for many years does not persuade us that any unfairness or impartiality exists. It has been held that a person is not to be penalized merely because he enjoys a good reputation and high standing in the community; alone, that is not sufficient to warrant a change in venue. Braswell v. Money, 344 So.2d 767 (Ala.1977).

Concerning the alleged two occasions where Culver communicated ex parte with the trial court, Miller fails to show this court that any unfairness or impartiality exists. The question to be answered is whether Miller has “spread on the record facts and circumstances of such character as to create a reasonable belief that a fair and impartial trial cannot be obtained....” Braswell v. Money, 344 So.2d 767 (Ala.1977).

From what we can gather from the record, Culver’s communications with the trial court concerned only the status or posture of the case as it proceeded towards trial. One communication consisted of a telephone call to the first trial judge who recused himself later for other, unrelated reasons. The other communication was a telephone call to the second trial judge questioning a possible mistake in the docketing of the case. The trial court evidently told Culver to put his questions in the form of a motion so that the court could rule on the matter. That was done and the trial court granted Culver’s motion.

The matter of granting a change in venue is within the sound discretion of the trial court. Ex parte Adamson, 408 So.2d 151 (Ala.Civ.App.1981). In the instant case we find no abuse of discretion requiring reversal and a review of the record does not reveal facts and circumstances that show Miller was unable to obtain a fair and impartial trial.

II

Miller next contends that the trial court erred in refusing his request for a jury trial.

The present case was initiated in the District Court of Madison County in August 1981, by Culver, who sought to collect attorney’s fees from Miller for legal services rendered Miller. Miller answered in September 1981, and filed a counterclaim against Culver for breach of contract and “negligent malpractice” in a certain case where Culver had represented Miller. The breach of contract claim originated with an incident that occurred approximately twenty years ago.

Miller’s counterclaim exceeded the district court’s jurisdiction and Miller filed a motion on January 28, 1982, to transfer the case to circuit court.

We feel compelled at this point to comment on the propriety of transferring a case from district court to circuit court on motion of the defendant such as we have in this instance. Although not at issue in the instant case, it appears that there exists no requirement that a case should be transferred to circuit court from district court because of a demand for a jury trial or for asserting a counterclaim that exceeds the jurisdictional amount of the district court.

It appears that a demand for a jury trial, or the filing of an “excessive” counterclaim, is not sufficient grounds for transferring an appropriate case originally filed in district court to circuit court. To do so would thwart the jurisdiction of the district court. See §§ 12-11-9 and 12-12-71, Ala. Code (1975), and Rule 13, Alabama Rules of Civil Procedure.

The propriety of transferring the case aside, the fact remains that the case was apparently transferred to circuit court in late January of 1982, and the case was set on the non-jury trial docket for trial in the circuit court April 14, 1982. Miller then petitioned for a continuance on March 29, 1982, and at that time demanded or requested a jury trial. The trial court denied both motions.

Miller then filed a verified motion sometime around April 9, renewing his request for, among other things, a trial by jury. The motion was denied by the trial court on the day that trial was set, April 14, 1982.

Miller then filed a writ of mandamus seeking to have this court direct the trial court to grant Miller a jury trial. On the date that the writ was denied by the court without opinion, the trial judge recused himself sua sponte, giving as his reason the fact that he had represented someone in previous years in an action against Miller. The trial judge also addressed Miller’s contention that it was an abuse of discretion to deny a jury trial by saying, in effect, that Miller had waited until after the case had been scheduled for trial before requesting a jury and that considerable time had elapsed since the commencement of the suit.

The judge assigned to the case after the first judge recused himself held a pretrial conference with both parties. After the conference, the trial court issued an order dated October 26, 1982, containing the issues to be tried and the stipulated facts. In its order the trial court set trial for November 29, 1982, and included the statement “all jury instructions requested by the parties shall be delivered to the court prior to that day and time.” Apparently, through inadvertence or oversight from being unfamiliar with the case, the new trial judge set the case on the jury docket. In an order dated November 3, 1982, the trial court stated that “[t]he foregoing case having been previously set on a civil jury docket November 29, 1982, is hereby continued to December 13, 1982, at 9:00 A.M. on a nonjury docket on motion of the plaintiff’s attorney, Mr. David H. Culver.”

The record in this case is not a paragon of clarity as to when certain actions were taken or why; however, Miller’s arguments and contentions are that the trial court abused its discretion in not allowing a trial by jury even though apparently the demand came later than the required thirty days prescribed by Rule 38, A.R.Civ.P.

If a party demands a jury trial later than the required thirty days of Rule 38, the trial court has the discretion to grant a jury trial under Rule 39(b).

Rule 39(b), A.R.Civ.P., in pertinent part provides that: “[Notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues.” Under Rule 39(b), the trial court should exercise its discretion liberally in favor of granting a trial by jury in the absence of strong and compelling reasons to the contrary. Mobley v. Moore, 350 So.2d 414 (Ala.1977).

Bearing in mind the above presumption regarding jury trials, we are still not convinced that the trial court abused its discretion in refusing to grant a jury trial. The facts and circumstances of this case appear, to this court, to present a situation where the trial court could exercise its discretion in denying a request for a jury trial.

In the instant case, Miller transferred the case to circuit court. He filed his motion to transfer on January 28, 1982; he filed his demand or request for a jury trial on March 29, 1982, over sixty days since the motion to transfer and after the case was set for trial on the non-jury docket. After the trial court denied Miller’s request for a jury trial, Miller petitioned for a writ of mandamus to require the trial court to grant a jury trial. The trial judge involved recused himself from the case for reasons unrelated to any procedural matters. This court, for whatever reasons, denied the writ of mandamus.

The second trial judge assigned to the case did put the case on the jury docket; this was done October 26, 1982. The reason the case was set on the jury docket is not known; however, when the apparent history of this case was brought to the trial court’s attention by motion of Culver, the trial court reassigned the case to the non-jury docket. Presumably the ease was set on the jury docket by mistake or inadvertence due to the second trial judge’s unfa-rniliarity with the case. In any event, the court set the case for non-jury trial.

Considering the totality of the circumstances of this case, for example, the transfer itself, the length of time involved, the waiver of jury trial, the denial of the 39(b) request for a jury, the fact the case was set for trial before Miller requested a jury, the writ of mandamus, and the discretion allowed the trial court, we believe that the trial court did not err in refusing a request for jury trial. This is so even though we are well aware of the rule of law in favor of granting jury trials.

We also believe that our response to Miller’s contention in regard to venue that unfairness or impartiality existed on the part of the trial judge adequately covers the same assertion here.

III

Miller also contends that the trial court erred in failing to issue findings of fact and conclusions of law. We do not agree.

Miller relies on Rule 52, A.R.Civ.P., to support his contention. The pertinent parts of the statute read as follows:

“(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court may upon written request and shall when required by statute, find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58;”

As evident from a reading of the above, the issuing of findings of fact and conclusions of law is a matter within the discretion of the trial court. Provident Life & Accident Insurance Co. v. Hanna, 294 Ala. 37, 311 So.2d 294 (1975). There are no statutes that require findings of fact and conclusions of law in cases involving attorney’s fees, breach of contract or negligent malpractice. Therefore, the trial court did not err in refusing to issue findings of fact and conclusions of law.

IV

Finally, Miller contends that the evidence does not support the verdict and judgment in favor of Culver on the claim for attorney’s fees and on Miller’s counterclaim.

A recital of the facts involved in the dispute over attorney’s fees and the counterclaim for breach of contract and negligence would benefit neither the law nor the parties. Suffice it to say that there is evidence to support the trial court’s judgment.

While the evidence is in conflict, it is the duty of the trier of fact to resolve that conflict. Sunnyland Mobile Homes, Inc. v. Thompson, 384 So.2d 1111 (Ala.Civ. App.1980). It is not this court’s duty to substitute our judgment for that of the trier of fact. Clayton v. Simpson, 346 So.2d 457 (Ala.Civ.App.1977). Furthermore, it is a well-known principle of law that where the evidence is heard ore tenus, the trial court’s judgment carries the presumption of correctness and that judgment will not be disturbed unless shown to be palpably wrong or manifestly unjust. N Wilson’s Contracting Co. v. Jones, 425 So.2d 1122 (Ala.1983). In the present ease, viewing the evidence with the above presumptions, the trial court’s judgment was not palpably wrong or manifestly unjust. Hence, no error requiring reversal.

In view of the foregoing, this case is due to be and is affirmed.

AFFIRMED.

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


text:
    Elizabeth Elaine (Hammond) EZELL v. George Clay HAMMOND.
    Civ. 3984.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.

      George Beck of Baxley, Beck, Dillard & Dauphin, Montgomery, for appellant.
    Randy D. Whitten of Higginbotham & Whitten, Florence, for appellee.
   HOLMES, Judge.

This is a child custody case.

The trial court, after an ore tenus hearing, transferred custody of the couple’s two minor sons to the father. The mother, through able counsel, appeals and we affirm.

The couple was divorced in April 1978. By agreement custody of the couple’s sons, Matt, now aged fourteen, and Jamie, eight, was awarded the wife. The father was required to pay $400 a month child support. Eighteen months later the wife remarried. By later agreement the husband’s child support obligation was reduced to $200 a month.

In August of 1982, the husband filed a petition to modify custody, seeking a joint custody arrangement whereby he would have primary custody of the children during the school year and his wife would have primary custody during the summer months. As a ground for that change, the husband attempted to prove that the relationship between the eldest son, Matt, and his mother had deteriorated.

After an ore tenus hearing, the court denied the change of custody in a February 1983 order, stating that with three' and one-half months remaining in the school term it would not be in the best interests of the children to change custody at that time. The court specifically reserved jurisdiction over the custody matter to make such further orders as became necessary.

In June of 1983, the husband filed a second petition to modify, again seeking the joint custody arrangement on the basis of the deteriorating relationship between Matt and his mother. The court held a second ore terms hearing, and with the consent of both parties, the judge examined the two minor sons in camera. Neither party requested that a court reporter attend the in camera examination in order to produce a transcript. By order dated August 4, 1983, the court modified the previous custody arrangement, vesting custody jointly in the parents, with the father to have primary care of the children during the school months and the mother to have primary custody during the summer months. The court also terminated all the father’s child support obligations, ordering both parties to provide reasonable support for maintenance of the children while the children were in their respective care.

On appeal the wife contends that the trial court erred in three respects: in changing custody because there was no evidence of any material change of circumstances, in failing to provide child support to the mother during the summer months, and in failing to award the mother reasonable attorney fees, costs, and expenses. We will examine each ground separately.

The determination of child custody issues is committed to the sound discretion of the trial judge. The exercise of such discretion will not be reversed on appeal absent a plain and palpable abuse of such discretion. Johnson v. Johnson, 395 So.2d 1043 (Ala.Civ.App.1981). When a modification of a custody arrangement is involved, the applicable standard is materially changed circumstances. Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797 (1965).

As stated above, the changed circumstance relied upon to justify the custody change in the instant case is the deteriorating relationship between the eldest son, Matt, and the mother. There is evidence that since the divorce Matt has, with an increasing frequency, expressed a desire to live with his father. After periods of visitation with his father, Matt often becomes unruly, begging his mother to allow him to visit longer with his father, at times throwing temper tantrums, and on one occasion, even cursing his mother. The father remarried in November of 1982, and there was evidence that Matt and Jamie got along well with their new stepmother’s son, and that the father and new stepmother were concerned that a stable family environment be provided during periods of visitation. Prior to the hearing on the husband’s first modification petition, the mother took the sons to a counselor, and one of the topics discussed was Matt’s feelings toward his father. There was no evidence in the record that the younger son, Jamie, also behaved in this manner.

Matt was not called to the stand to testify as to his custody preference; however, as stated above, with the consent of the parties both children were examined in camera by the trial judge. As neither party requested that a transcript be made of the examination, we have no indication of what transpired within the judge’s chambers.

Of course the paramount consideration in a custody matter is the best interests of the child, and the fact that an older child of sufficient judgment may prefer to live with a certain parent may be weighed by the court, even though the child’s wishes are not controlling. McGregor v. McGregor, 257 Ala. 232, 58 So.2d 457 (1952); Garrison v. Kesek, 406 So.2d 953 (Ala.Civ.App.1981).

“Alabama has long recognized that judges may conduct in camera interviews with minor children, who are the subject of divorce custody proceedings,” provided that the parties have consented thereto. Anonymous v. Anonymous, 353 So.2d 515, 517 (Ala.1977). If neither party requests that a transcript be made of the interview, however, the record on the appeal of such case is incomplete, and therefore, an affirmance is mandated by the rule stated in Eaton v. Shene, 282 Ala. 429, 430, 212 So.2d 596, 598 (1968) (“[Wjhere there was evidence before the trial court and not before [the appellate court], which may have influenced [the trial court] at arriving at the conclusion it reached, we cannot disturb that finding”). Accord, Johnson v. Johnson, 395 So.2d 1043 (Ala.Civ.App.1981). Accordingly, we must reject the wife’s first issue on appeal.

We would further note that, even without the in camera examination, there appears, under the appropriate standard of review, evidence to support the trial court’s order.

The second issue, that of child support payments, also does not mandate reversal.

Prior to the custody modification, the wife was, per her agreement, receiving only $200 per month in support payments. However, in the past year, the mother accepted a new job as a regional manager with a truck rental concern, which she testified entailed a raise of about four to five thousand dollars a year. Although her new husband was currently between jobs, the wife testified that he had several attractive job prospects. Based upon this evidence the court terminated support payments to the wife and ordered that both parents provide reasonable support for the children.

Although Alabama law allows the setting of child support obligations in a split custody arrangement, see, e.g., McGregor v. McGregor, 257 Ala. 232, 58 So.2d 457 (1952); Foster v. Foster, 409 So.2d 833 (Ala.Civ.App.1981); but see Modling v. Modling, 45 Ala.App. 493, 232 So.2d 673 (1970); we can find no error in the court’s action in the instant case. There is no mandatory requirement that a court direct the payment of child support in every case. See Anonymous v. Anonymous, 353 So.2d 510 (Ala.Civ.App.), rev’d and remanded, 353 So.2d 515 (Ala.1977). The amount of child support is committed to the sound discretion of the trial court, reversible only for a manifest abuse of discretion. See, e.g., Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980). We find no error in requiring the mother, while the child is in her custody, to provide reasonable support consistent with her means. See Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980).

The final issue is that of attorney fees. The wife contends that the trial court erred in failing at the trial level to award her reasonable attorney fees, costs, and expenses. We note that the record is devoid of any request by the wife in the trial court for an award of fees. Even so, such a matter is committed to the discretion of the trial court, and we find no abuse of discretion. Accordingly, the judgment below is due to be affirmed.

Both parties’ requests for attorney fees on appeal are denied.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    AGRI-BUSINESS SUPPLY COMPANY, INC., a Corporation v. Fletcher HODGE.
    Civ. 3817.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1984.

      Kenneth T. Fuller and Joe C. Cassady, Jr. of Cassady, Fuller & Marsh, Enterprise, for appellant.
    L. Merrill Shirley, Elba, for appellee.
   BRADLEY, Judge.

Agri-Business Supply Company, Inc. filed an action against Fletcher Hodge to recover $4,600 on an open account. Hodge answered by denying plaintiff’s claim and then filing a counterclaim in which he alleged that certain equipment he purchased from plaintiff was not merchantable and not fit for the purpose for which it was intended, and neither did the equipment comply with the express warranties made on it.

After a trial the jury returned a verdict in favor of defendant on plaintiff’s claim and in favor of defendant on his counterclaim in the amount of $50.

Plaintiff’s motions for a directed verdict, judgment n.o.v., or, in the alternative, for a new trial, were denied and it appeals.

The evidence shows that plaintiff, AgriBusiness Supply Company, Inc., was in the business of selling equipment for use in poultry production. Defendant, Fletcher Hodge, was involved in raising chickens for sale. In April 1978 Hodge contracted with Agri-Business, through its agent, to furnish and install certain equipment in two chicken houses that were being built for him. The price of the equipment installed was $24,270.51. Hodge paid $20,000 on the equipment but refused to pay the balance because the equipment was defective and did not operate properly.

Hodge testified that he told the salesman for plaintiff that he intended to raise broilers and replacements, and that he wanted equipment that would do this job. He said from the moment he started using the equipment he had problems with it. The principal objection was the failure of the feeders to operate properly. He said when the feeders malfunctioned the feed would pile up in one spot and the chickens would flock to that spot and would be suffocated while trying to get to the feed. He lost thousands of chickens as a result of suffocation due to the defective feeding equipment.

Hodge said that plaintiff did replace some of the equipment but it continued to malfunction. Hodge said that his problems with plaintiff’s equipment did not cease until he replaced it with equipment from another company.

Plaintiff argues first that the trial court erred in allowing the jury to decide if plaintiff had violated the implied warranty of fitness for a particular purpose in the sale of the poultry equipment to Hodge.

Section 7-2-315, Code 1975, provides as follows:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under section 7-2-316 an implied warranty that the goods shall be fit for such purpose.”

Plaintiff says there is no evidence that plaintiff knew the particular purpose for which the equipment was being purchased or that Hodge was relying on plaintiff’s skill and judgment in selecting and furnishing suitable equipment for raising chickens.

Hodge testified that he talked to Jasper Reid, who represented plaintiff, in February 1978 about furnishing and installing equipment in two chicken houses where he intended to raise broilers and replacements. Mr. Reid informed defendant that such equipment could be supplied.

Plaintiff, who has been in the business of furnishing and installing equipment in chicken houses for over thirty years, did install the equipment ordered by defendant, and, as testified to by a witness for plaintiff, the equipment was suitable for feeding broilers and pullets.

Defendant testified that he relied on the skill and judgment of the plaintiff to furnish the type of equipment he needed to raise the kind of chickens he told Reid that he planned to raise. Defendant also testified that he had bought chickenhouse equipment from plaintiff and Reid in years past. Moreover, defendant said that he told Reid this time that he wanted a package deal, that he did not even want to supply the light bulbs.

We find the evidence sufficient to warrant submitting this issue to the jury.

Plaintiff’s next contention is that the trial court erred in submitting to the jury the issue of whether defendant could recover for violation of the implied warranty of merchantability of the goods sold to defendant.

Section 7-2-314, Code 1975, provides:

“(2) Goods to be merchantable must be at least such as:
“(a) Pass without objection in the trade under the contract description; and
“(c) Are fit for the ordinary purposes for which such goods are used .... ”

To establish the existence of an implied warranty of merchantability, the defendant must reasonably satisfy the jury that the plaintiff sold the equipment to him and that plaintiff was “a merchant with respect to goods” of the same kind as the equipment sold to defendant. See Storey v. Day Heating & Air Conditioning Co., 56 Ala.App. 81, 319 So.2d 279 (1975); §§ 7-2-104(1) and -314(2)(a), (c), Code 1975. Also, in order to prove the breach of such an implied warranty, the defendant must reasonably satisfy the jury that the equipment he purchased from plaintiff is not fit for the ordinary purposes for which such equipment is used. Smith v. Crosrol, Inc., 498 F.Supp. 697 (M.D.Ala.1980).

The evidence is undisputed that plaintiff is and has been for a number of years in the business of selling equipment to people who raise chickens. It also appears that the equipment sold to defendant could be used in feeding pullets and broilers.

The defendant testified that he had trouble with the equipment he bought from plaintiff during the entire time it was in his chickenhouses and that the equipment was defective and did not operate as he had been told it would operate.

Based on this evidence we conclude that the trial court properly submitted this issue to the jury.

Agri-Business’s next contention is that the court erred in granting Hodge’s requested jury charges numbers 3, 4, 5, 7, 8, 9, 12, 13A, and 14. Agri-Business contends that it properly objected to and excepted to these charges to the jury, as is required by law in Alabama, so that these charges are properly reviewable by this court. Moreover, plaintiff contends that it has also assigned the granting of these requested charges as grounds for error on appeal.

Rule 51 of the Alabama Rules of Civil Procedure states in pertinent part:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection." (Emphasis added.)

Agri-Business’s objection to jury charge number 5 stated only that it was “confusing.” It is settled law in Alabama that:

“[T]he purpose of stating grounds for objection is to give the trial court the opportunity to correct the instructions and to avoid the waste of time from reversals that result from technical omissions or oversights.”

Crigler v. Salac, 438 So.2d 1375 (Ala.1983). Moreover, in Crigler, supra, the court stated that the objection “did not adequately inform the trial judge of any potential error or afford him an opportunity to correct any such error.” Further the court noted the objection failed to assign errors specifying how the charges were erroneous or how they misstated the law.

Crigler is dispositive of given charge number 5 because plaintiff failed to inform the trial court in what way charge 5 was “confusing” and thereby failed to give the court an opportunity to correct any error, if in fact there was error.

As to charges 3, 4, 7, 8, 9, 12, 13A, and 14, we consider the objections made to them to be sufficient to preserve them for appeal. Crigler, supra. However, the Alabama Supreme Court has held that “when we do examine charges asserted to be erroneous, we look to the entirety of the trial court’s charge to see if there was reversible error.” Nelms v. Allied Mills Co., 387 So.2d 152 (Ala.1980). Even in this context, reversal will occur only when the error is considered to be prejudicial. Underwriters National Assurance Co. v. Posey, 333 So.2d 815 (Ala.1976). Therefore, we shall examine the remaining objected-to charges in the light of these principles.

Plaintiff argues that the granting of jury charge 3 constituted reversible error because it deals with agency and there was no proof of agency at trial. We find that there was proof of an agency relationship between Mr. Reid and Agri-Business at the time Reid sold the equipment to defendant and, therefore, the charge is not erroneous. Posey, supra. Likewise, charge 4, which deals with Reid’s relationship with plaintiff at the time of the sale of equipment to defendant, is also not erroneous. It is the duty of the jury to apply the facts to the law as given to it by the court. McArdle v. State, By and Through Alabama State Docks Department, 408 So.2d 491 (Ala.1981). Here the court instructed the jury on the law of agency and the jury applied the facts before it to that law. Again, there was evidence of an agency relationship between Reid and plaintiff.

Plaintiff next contends that charge number 7 was an incorrect statement of the law and an incomplete definition. Charge number 7 was another definition of the term “merchantability.” The trial court instructed the jury that the term means that a good sold carries with it an inherent soundness which makes that good suitable for the purpose for which it was designed. We held in Wetzel v. Bingman Laboratories, Inc., 39 Ala.App. 506, 104 So.2d 452 (1958), that merchantability “refers to the acceptability for commerce, ... it connotes a quality of inherent soundness ... as of being of average suitability to the market.” We consider charge number 7 similar to the one in Wetzel and, therefore, not an erroneous charge.

Plaintiff next says that charge number 9 is inappropriate in this case because defendant intended to use the equipment for more than one particular purpose. Charge 9 was on the subject of an implied warranty for a particular purpose. The court in this instance gave a verbatim definition of implied warranty from section 7-2-315, Code 1975. This section provides:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is ... an implied warranty that the goods shall be fit for such purpose.” (Emphasis added.)

The facts in the case at bar show that defendant told Reid that he was going to raise broilers and replacements and that he wanted equipment to do this job. Defendant was told that the equipment he bought would do the job. It also appeared in the evidence that the equipment sold to defendant was also suitable for feeding broilers as well as pullets. No error here.

Plaintiff’s next contention is that charge number 12 is an incomplete statement of the facts and the agreement between plaintiff and defendant and should have been refused by the trial court. Charge 12 instructed the jury that if they were reasonably satisfied from the evidence that plaintiff’s equipment did not meet the required standards then the terms of the sale of that equipment had been breached and they could find for defendant on plaintiff’s claim. As noted above in McArdle, supra, it is well settled that the jury are the fact finders and must apply the law given by the court, through its charge, to the facts in the particular case. It is not the responsibility of the judge to do this for the jury. We find nothing in charge number 12 that is contrary to this rule. No error here.

Plaintiff’s final contention is that jury charges 13A and 14 were inadequate and prejudiced the jury against plaintiff. Charges 13A and 14 instructed the jury on the measure of damages in a breach of warranty case and defined incidental and consequential damages. Plaintiff argues that there was no showing of value at the time of the sale and that there was no allegation or proof as to incidental or consequential damages. Defendant proved that not only did the equipment bought from Agri-Business not function properly, but he was forced to replace certain parts, repair the machine numerous times, and lost literally thousands of chickens because of the malfunctioning equipment. We consider that the charges were adequate as to defining incidental and consequential damages and we cannot find that these charges prejudiced plaintiff in any way. Moreover, we do not consider plaintiff’s argument that no definition or explanation was given to the jury as to what incidental and consequential damages really are to have any merit. Jury charge number 14 is verbatim from section 7-2-715, Code 1975, and describes what both incidental and consequential damages to a buyer will include.

Plaintiff next says that the trial court erred in overruling its motion for a directed verdict on defendant’s counterclaim.

A directed verdict should be granted where there is a complete absence of proof on an issue material to the claim. If, however, there is a scintilla of evidence in support of the claim, the question must go to the jury. Bitch v. Waldrop, 428 So.2d 1 (Ala. 1982).

As noted above there was sufficient evidence adduced on the defendant’s counterclaim to authorize its submission to the jury. The refusal of the directed verdict motion was not error.

Likewise, the trial court properly overruled plaintiff’s motion for judgment n.o.v. Such a motion tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. Ritch v. Waldrop, supra.

Plaintiff’s final contention is that the trial court erred in overruling its motion for a new trial.

The verdict of a jury is presumed correct and no ground of a motion is more carefully scrutinized than that the verdict is against the weight of the evidence, and the presumption of correctness is strengthened when a new trial is denied. Walker v. Cardwell, 348 So.2d 1049 (Ala.1977).

As observed previously, the weight of the evidence preponderates in favor of the jury’s verdict and, therefore, the trial court properly overruled the motion for new trial.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J„ concur.


text:
    James W. BREWER v. COMMERCIAL CREDIT CORPORATION.
    Civ. 3959.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1984.
    Rehearing Denied March 14, 1984.

      Alice L. Anderson, Enterprise, for appellant.
    Richard W. Whittaker of Pittman, Whit-taker & Pittman, Enterprise, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

A post-judgment order overruling a civil Rule 60(b) motion is here involved.

The defendant, Mr. Brown, purchased a boat, motor and trailer from a third party seller and secured the balance due upon the purchase price by a combined note and security agreement which was assigned by the seller to the plaintiff.

The plaintiff sued the defendant upon the note as well as for the possession of the boat, motor and trailer, the security for the indebtedness. Among the defenses raised by the defendant in his answer was that the security agreement had been altered, that it was not the contract agreed to by the defendant and that it “does not transfer to the defendant the property sold to him.”

On April 18, 1983, by a signed written agreement, it was contracted for and on behalf of the parties that the plaintiff be issued a consent judgment for the return of the boat, motor and trailer “made the basis of this lawsuit, which are in the possession of or under the control of” the defendant or its alternate value of $3,000 and an attorney’s fee of $450. One of the terms of that agreement was that all pending claims or those matters which could have been asserted between the plaintiff and the defendant were terminated. Execution or writ of seizure was stayed for ninety days, within which time the defendant was authorized to satisfy the judgment in full by paying $2,500 to the plaintiff. On April 18, 1982, the circuit court approved that agreement and ordered that its terms be adopted and made the judgment of the court.

On May 17, 1983, the defendant filed, and the trial court overruled, a motion to set aside the consent judgment. The sole ground of the motion was that “[T]he wrong boat, motor and trailer was sold and transferred to the defendant and plaintiff has not attempted to remedy these defects as promised.”

The defendant filed a motion on July 18, 1983, under Rule 60(b) of the Alabama Rules of Civil Procedure. It alleged, in substance, that there were variances in the description of the property as contained in the bill of sale received by the defendant from the seller and as set forth in the respective copies of the security agreement of the defendant and of the plaintiff; that when the parties entered into the settlement agreement of April 18, 1983, the plaintiff promised the defendant that the plaintiff would contact the seller and obtain correct descriptions of the property; that, in reliance thereon, the defendant entered into the settlement agreement and that the plaintiff failed to keep its promises in that regard, hence the final judgment should be set aside as being null and void. The trial court denied that motion on July 19, 1983. The same trial judge entered the consent judgment of April 18, 1983, overruled the motion to set aside the consent judgment on May 17, 1983, and overruled the 60(b) motion on July 19, 1983. The defendant appealed from all three of those rulings on August 29, 1983.

As to the April 18 consent judgment and the May 17 order, the time for taking an appeal from those judgments had expired at the time the notice of appeal was filed on August 29. Rule 4(a)(1), (3), A.R. A.P. The forty-two days’ time within which to take an appeal may not be extended by the utilization of a Rule 60(b) motion. Carnes v. Carnes, 365 So.2d 981 (Ala.Civ.App.1978), cert. denied, 365 So.2d 985 (Ala.1979). However, the denial of a Rule 60(b) motion to set aside a final judgment is a final order and is appealable. Terry v. Frisbee, 404 So.2d 345 (Ala.Civ.App.), cert. denied, 404 So.2d 347 (Ala.1981). Accordingly, we may not review the correctness of the underlying consent judgment dated April 18, 1983, nor matters which were properly reviewable by appeal from the May 17, 1983 judgment overruling the defendant’s motion to set aside the consent judgment. On this appeal, we are limited solely to a determination of whether the trial court abused its discretion in its July 19, 1983 judgment in denying the Rule 60(b) relief. City of Daphne v. Coffey, 410 So.2d 8 (Ala.1982).

In their settlement agreement, the parties consented to a judgment in favor of the plaintiff for the boat, motor and trailer then in the defendant’s possession. He was to return to the plaintiff the boat, motor and trailer which were then possessed by him, or pay the alternate value thereof or the lesser amount if paid within ninety days. No uncertainty was raised by the 60(b) motion as to the identity of those items which were possessed by the defendant at that time. Accordingly, the motion in that respect is not an attack upon the consent judgment itself. Rather, it raises as an issue a matter which went beyond or behind the written agreement of the parties. The agreement expressly settled all asserted or nonasserted matters between the parties. If they desired a binding agreement as to the alleged promise of the plaintiff to contact the seller and obtain the correct descriptions of the secured property, a provision to that effect should have been placed in the contract and, in its absence, the parol evidence rule would apply. If we assume that the parties made such an oral contract as is alleged in the 60(b) motion, no evidence thereof could have been received by the trial court to explain, contradict, add to or subtract from the terms of the written agreement of the parties that the consent judgment be rendered. Sanders v. Sanders, 425 So.2d 476 (Ala. Civ.App.1983). No issue is raised of mistake, fraud or ambiguity regarding the contract.

It is also worthy of note that the questions presented by the 60(b) motion were substantially raised by the defendant’s answer to the plaintiff’s complaint and by his May 17, 1983 motion to set aside the consent judgment. The 60(b) motion was just more explicit. The agreement expressly provided for the termination of all pending claims as well as those which could have been asserted between the parties. An appeal could have been taken within forty-two days of the overruling of the May 17 motion which, along with the defendant’s answer to the complaint, substantially raised the same problem as did the 60(b) motion. However, an appeal was not timely attempted. A Rule 60(b) motion cannot take the place of an appeal and is not available to relieve a party from his choice and decision not to appeal from a final judgment. Hobbs v. Hobbs, 423 So.2d 878 (Ala.Civ.App.1982).

The consent judgment was not void as was alleged in the 60(b) motion, since the trial court had jurisdiction over the parties as well as over the subject matter. Raine v. First Western Bank, 362 So.2d 846, 849 (Ala.1978).

For aught that appears in the defendant’s 60(b) motion, concerning the boat, motor and trailer which were actually received by the defendant, title thereto passed from the seller to the defendant at the time those items were physically delivered to the defendant by the seller, despite the reservation of a security interest therein in the seller. § 7-2-401(2), Code of Alabama 1975. When the defendant consented to the final judgment, he possessed the boat, motor and trailer. We have been uninformed as to why he could not or cannot obtain the serial numbers from the boat, motor and trailer if he desires that information so as to obtain the exact description of the property as to which title passed to him upon delivery from the seller.

We find no abuse of the discretion of the trial court in overruling the defendant’s Rule 60(b) motion. The facts of record are not so extraordinary as to require that the final judgment which was entered by the consent of the parties be set aside under any of the allegations of the defendant’s 60(b) motion. Webb v. Galloway, 442 So.2d 53 (Ala.1983).

The trial court’s order of July, 1983, which denied the defendant's Rule 60(b) motion, is affirmed.

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

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Yukiko ERBE v. George L. EADY.
    Civ. 4057.
    Court of Civil Appeals of Alabama.
    Feb. 22, 1984.
    Larry C. Weaver of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellant.
    Ralph E. Slate and Harvey Elrod, Decatur, for appellee.
   PER CURIAM.

The wife, Mrs. Erbe, via motion for summary judgment, sought to compel the husband, Mr. Eady, to pay certain funds due under a California divorce decree. The trial court denied the motion and Mrs. Erbe appeals. We reverse and remand with directions.

We note two items at the outset. We make no comment, since it has not been presented as an issue, on the propriety of the means by which Mrs, Erbe sought to compel Mr. Eady to make the payments due under the divorce decree. Secondly, this is, in effect, the second time this same matter has been before this court.

The earlier opinion in this case fully described the history of the proceeding up until the time the first appeal was filed; we need only set out the events which have taken place since the first appeal was decided. See Erbe v. Eady, 406 So.2d 936 (Ala.Civ.App.), cert. denied, 406 So.2d 939 (Ala.1981), cert. denied, 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982). We suggest, for a better understanding of what follows, interested parties should refer to Erbe v. Eady.

After this court ruled that Mrs. Erbe was entitled to 41.5 percent of her husband’s gross monthly military retirement pay as community property, and that the decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), would not be applied retrospectively, Mrs. Erbe filed a motion in the trial court for summary judgment to compel payment. The trial court denied Mrs. Erbe’s motion and entered a judgment in favor of the defendant, briefly stating that “notwithstanding the opinion of the Court of Civil Appeals of Alabama, the plaintiffs petition for relief must be denied in all respects on the ground that she has no legal claim to the relief sought in the petition made the basis of this cause of action.”

When a case is remanded to a trial court after a decision on appeal, “issues decided by the appellate court become law of the case and the trial court’s duty is to comply with the appellate mandate_” Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ.App. 1983). The trial court is not free to reconsider issues finally decided in the mandate. Instead,

“[i]f circumstances arise that cast doubt on the correctness of the law of the case as established on appeal, arguments in support of departure from the mandate must be addressed to the appellate court,

IB Moore’s Federal Practice ¶ 0.404[10] (2d ed. 1983) (citations omitted).

After examining the record on appeal, it appears to this court that the judgment in favor of the defendant resulted from the trial court’s considering the issue of retroactive application of McCarty. However, this issue had been already settled by the appellate opinion, see 406 So.2d at 938-39, and was nb longer within the province of the trial court. In any event, in view of our prior opinion and the facts as presented, the judgment below must be reversed and remanded, and the trial court is directed to enter a judgment in favor of the wife, awarding her 41.5 percent of the husband’s gross military retirement pay for the period in question.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Alan STAPLES v. JENKINS BUILDERS, INC.
    Civ. 4092.
    Court of Civil Appeals of Alabama.
    Feb. 22, 1984.

      Edward W. Doggett and Michael F. Terry, Florence, for appellant.
    E.L. Colebeck of Colebeck & Yates, Florence, for appellee.
   BRADLEY, Judge.

This is an appeal from a summary judgment.

Jenkins Builders, Inc., d/b/a United Hardware and Building Supply, filed an action in the Lauderdale County District Court against Alan Staples on an open account. A judgment by default in the amount of $2,215.67 plus costs was rendered against Staples on July 8, 1983. Staples appealed to the circuit court.

In the circuit court Staples filed an answer denying that he owed Jenkins Builders any money and also filed a counterclaim alleging violations of the Truth-in-Lending Act and Federal Regulation Z. 15 U.S.C. §§ 1601-1646 (1976) and 12 C.F.R. § 226 (1981).

On October 4, 1983 Jenkins Builders filed a motion for summary judgment and supported it with an affidavit of its bookkeeper. Staples filed an affidavit in opposition to plaintiff’s motion for summary judgment. After a hearing and on October 18, 1983, the circuit court granted a summary judgment in favor of plaintiff for $2,215.67 plus costs of court. Staples appeals.

Staples argues here that the trial court erred in granting the summary judgment to plaintiff because there was a scintilla of evidence to support his counterclaim and to dispute plaintiff’s claim.

Plaintiff takes the position that the trial court correctly granted it a summary judgment because there was no evidence to support defendant’s counterclaim or to dispute its claim.

The evidence shows that in July 1981 defendant bought certain building materials from plaintiff in the amount of $1,584.85. Upon each purchase defendant was presented with an invoice that provided: “Terms: Net Cash, First of Month following purchase.” No credit arrangements were requested or made at this time.

On August 1, 1981 a statement was sent to defendant stating that the balance of his account was $1,584.85 and requesting payment. At the bottom of the statement was printed: “Terms: Net 30 days. A service charge of 1½% will be charged on all unpaid balances not paid by the 10th of the following month. \xk°/> = 18% per year.”

At the same time and every six months thereafter, defendant was furnished the usual Truth-in-Lending statement regarding errors and omissions. 12 C.F.R. § 226.-7(a)(9) (1981).

In his counteraffidavit to the motion for summary judgment, defendant said that at the time he purchased the materials the cost of them was charged to him. He said that he was not informed at that time that the account would bear interest. He also said that a portion of the material delivered to him was unsatisfactory and was to be returned to the seller but the seller did not pick the material up nor did it replace the material. Finally defendant said he did not agree to pay interest.

Summary judgment may be granted only if the pleadings and affidavits show that there is no genuine issue of material fact on which the summary judgment is sought. Oliver v. Taylor, 394 So.2d 945 (Ala.1981). Also, the moving party has the burden of establishing the absence of a genuine issue of fact. Eason v. Middleton, 398 So.2d 245 (Ala.1981). If, under any conceivable set of circumstances, the nonmoving party can recover, the trial court must deny the motion for summary judgment. Horton v. Northeast Alabama Regional Medical Center, Inc., 334 So.2d 885 (Ala.1976). If there is a scintilla of evidence supporting the non-moving party, summary judgment is erroneous.

The nonmoving party cannot, however, rely on the denials or allegations of the pleadings where the moving party has offered affidavits or other supporting evidence. Motors Insurance Co. v. Southern Bell Telephone Co., 431 So.2d 1308 (Ala.Civ.App.1983). When the moving party offers proof of no genuine issue of material fact, it then becomes incumbent upon the nonmoving party to submit counteraffi-davits to show that such an issue does exist. Motors Insurance Co., supra. Staples filed a counteraffidavit.

Staples denied in his answer that he owed plaintiff the amount sought by the complaint. To support his denial, Staples says in his counteraffidavit that a portion of the materials he purchased was unsatisfactory and was to be returned to the seller for credit or replacement. He further says that the seller did not pick up the material, did not give him credit for it, and did not replace it.

Although Staples does not specifically say that he informed seller that some of the materials were defective and that seller had promised to pick up the defective materials and replace them or give him credit for them, the implication is certainly present that seller had been informed of the defective materials and had given purchaser reason to believe that the defective materials would be replaced or credit given for them.

In this state of the evidence, there exists a genuine issue of material fact as to whether purchaser owes the amount claimed by seller. Therefore, summary judgment as to this aspect of the case was erroneously granted.

The other aspect of the case is whether the summary judgment on Staples’s counterclaim is also erroneous. In his counterclaim Staples alleges that plaintiff violated the Truth-in-Lending law because he was permitted to pay in cash or in installments for the purchases made from plaintiff and a finance charge was imposed on the unpaid balance.

Staples argues that he stated in his affidavit that he was not informed at the time he opened the account with plaintiff that such account would bear interest. Therefore, he has shown that plaintiff violated the Truth-in-Lending law by not informing him of the terms of the credit sale.

The Truth-in-Lending Act encompasses only consumer credit transactions. See 15 U.S.C. 1601(a) (1976). The purpose of the act is to protect the consumer who buys on credit by disclosing to him the terms under which he is buying. Johnson v. McCrackin-Sturman Ford, Inc., 527 F.2d 257 (3d Cir.1975).

The evidence clearly shows that Staples bought the building materials on an open account. The invoice that he received shows that he was to pay cash within thirty days. In Alabama open accounts can bear interest. Moore v. Patton, 2 Port. 451 (Ala.1835); § 8-8-8, Code 1975. In an open account action, the account is deemed closed on the date the last item was entered, and interest will be allowed from that date. Prestridge v. Irwin, 46 Ala. 653 (1871).

In the case at bar the account was closed the middle of July 1981 when the last purchase was made, and the defendant was informed by the August 1, 1981 statement that the total amount of his account was due and that if he did not pay it by the tenth of the following month a one and one-half percent service charge would be assessed on the unpaid balance.

Under Alabama law defendant was not required to be told when he made the purchases that he would be required to pay interest on his unpaid account. The terms of his purchase were cash in thirty days. He was told later that if he failed to pay within thirty days, his unpaid balance would carry a one and one-half percent service charge. This was not a credit sale within the meaning of the Truth-in-Lending law, but a delinquent open account that bears interest from the date it was closed. Prestridge v. Irwin, supra.

Defendant says that he did not agree to pay interest nor was he told at the time he made the purchases that he would be charged interest on his open account. Whether defendant did not agree to pay interest or was not told interest would be assessed on a delinquent account is immaterial. The law authorizes the imposition of interest on a delinquent open account. Moreover, before the account became delinquent, defendant was informed that failure to pay would cause a service charge to apply to the unpaid balance. So, defendant had notice that interest would be charged on the unpaid balance, he had notice of the rate of the interest, and he had notice of the period over which interest would be assessed.

There is no evidence in defendant’s affidavit of a violation of the Truth-in-Lending law or Regulation Z. The trial court’s summary judgment as to this aspect of the case is affirmed.

The summary judgment in favor of seller on its open account claim is reversed; the summary judgment in favor of seller on Staples’s counterclaim is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

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


text:
    FRATERNAL ORDER OF EAGLES, AERIE NO. 3263, et al. v. James C. WHITE, as Commissioner of Revenue of the State of Alabama.
    Civ. 4178.
    Court of Civil Appeals of Alabama.
    Feb. 22, 1984.
    Jackson P. Burwell of Lanier, Shaver & Herring, Huntsville, for appellants.
    Charles A. Graddick, Atty. Gen., B. Frank Loeb, John J. Breckenridge, Asst. Attys. Gen., for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an amusement or entertainment gross receipts tax case.

Subject to certain provisions which are not here in controversy, the operation of bingo games for prizes or money by nonprofit organizations for charitable or educational purposes has been legal in Madison County since September 17, 1980, when amendment number 387 to the Constitution of Alabama of 1901 was proclaimed to be ratified.

As is authorized by that amendment and certain ordinances, the six nonprofit organizations who are the plaintiffs in this case were licensed by the City of Huntsville to conduct bingo games, and they have done so since that time in apparent compliance with all constitutional and city ordinance regulations. After expenses are paid from their bingo receipts, the remainder of those revenues have either been donated to charitable organizations or have been used directly by the plaintiffs for charitable or educational purposes.

The Department of Revenue of the State of Alabama (the Department) has required each of the plaintiffs to pay a privilege or license tax on bingo gross receipts under § 40-23-2(2) of the Code of Alabama of 1975. The plaintiffs’ written request for a refund of all such taxes collected was denied by the Department. The plaintiffs then filed in the trial court their civil action seeking a writ of mandamus requiring the Commissioner of the Department to refund all of those taxes which had been previously collected from the plaintiffs. The trial court rendered a summary judgment in favor of the Commissioner and the plaintiffs appealed.

The first decisional issue was stated by the plaintiffs as follows:

“1. Does the operation of bingo games pursuant to Amendment No. 387 to the Constitution of Alabama 1901, if the proceeds of such games are used solely for charitable or educational purposes as required by Amendment No. 387, constitute ‘business activities’ under § 40-23-2, Code of Alabama, 1975, and thereby subject the gross receipts of the bingo games to the sales tax on amusements or entertainment?”

In pertinent part, the primary code section which is in controversy is as follows:

“There is hereby levied, in addition to all other taxes of every kind now imposed by law, and shall be collected as herein provided, a privilege or license tax against the person on account of the business activities and in the amount to be determined by the application of rates against gross sales, or gross receipts, as the case may be, as follows:
“(2) Upon every person, firm or corporation engaged or continuing within this state in the business of conducting or operating places of amusement or entertainment; ... within the state . of Alabama, an amount equal to four percent of the gross receipts of any such business.”

§ 40-23-2, Code 1975.

Through most able counsel, the plaintiffs argue that their bingo activities do not constitute a business inasmuch as they do not have as their object any “gain, profit, benefit or advantage, either direct or indirect” as the word “business” is defined in § 40-23-l(a)(ll) of the Code of 1975. They contend that they are required by amendment 387 to channel all bingo net revenues either to charity or to education, which they each do, and hence, the plaintiffs do not obtain any gain, profit, benefit or advantage from the money raised by the games which they operate; and, consequently, they are not operating a business, with the result that their gross receipts may not be taxed. We disagree.

In State v. Crayton, 344 So.2d 771 (Ala.Civ.App.), cert. denied, 344 So.2d 775 (Ala.1977), it was determined that proceeds received from the operation of an individually operated bingo parlor can be taxed, under what is now § 40-23-2(2), Ala.Code (1975), as a place of amusement or entertainment. While Crayton’s operation was illegal and while the bingo games conducted by the plaintiffs are lawful, the plaintiffs and Crayton, in their respective bingo operations, conducted a business activity in that respect and engaged in the business of operating places of amusement or entertainment.

The plaintiffs sought profit or gain from the bingo games which they operated. Net profits from bingo games were their object in order that they might support the worthy causes of charity or education. Their eleemosynary endeavors were benefited and occasioned by the net profits from their bingo operations. The mere fact that their entire bingo net income was required to be donated to or used for benevolent purposes does not alter the nature of the income source. The profits were derived from the business of conducting or operating a place of amusement or entertainment. As the learned trial court so aptly stated in the final judgment in this case, “The tax imposed under § 40-23-2(2) is placed upon the privilege of operating a place of amusement or entertainment, without regard to the purpose for which the proceeds are accumulated.”

The tax in question is levied upon gross receipts. Included in the definition of “gross receipts” is “all receipts actual and accrued, by reason of any business engaged in, _” § 40-23-1(a)(8), Code 1975. Here, each of the plaintiffs had gross receipts as so defined, for they each actually received funds by reason of their bingo business.

For the foregoing reasons, we conclude and hold that each of the plaintiffs was subject to the gross receipts tax as to their bingo endeavors. Neither amendment 387 nor any statute contains a grant of an exception to any of the plaintiffs from the payment of the gross receipts tax.

Certain organizations, however, are expressly exempt from the payment of any sales taxes or taxes upon gross receipts. § 40-23-5, Code 1975. The plaintiffs seek to void the entire sales and gross receipts tax statute as being unconstitutional since the plaintiffs were not also included among those organizations named in that code section as being exempt from the payment of those taxes. As was aptly indicated in the Commissioner’s brief, any unconstitutionality (which we do not decide) of that code section would have no effect upon whether these plaintiffs may obtain a tax refund. Any invalidity thereof would only mean that those particular organizations enumerated in that code section would no longer be exempt from that taxation. It would not result in these plaintiffs’ being exempt nor would the entire sales and gross receipts taxation statute be invalid on that account. In short, even if § 40-23-5 is assumed to be unconstitutional, its invalidity would not affect the outcome of this litigation.

The trial court did not err in rendering a summary judgment in favor of the Commissioner. We affirm.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    BARRINGTON CORPORATION v. PATRICK LUMBER COMPANY, INC.
    Civ. 3994.
    Court of Civil Appeals of Alabama.
    Feb. 29, 1984.

      John F. Porter, III of Livingston, Porter & Paulk, Scottsboro, for appellant.
    John F. Proctor of Thomas & Proctor, Scottsboro, for appellee.
   WRIGHT, Presiding Judge.

This case concerns a breach of an implied warranty of fitness for a particular purpose.

During the latter part of the 1970’s the Tennessee Valley Authority (TVA) began offering interest-free loans to customers for the installation of energy conservation measures in their homes. Under this program a TVA energy advisor would inspect a customer’s home and then recommend various measures to improve energy efficiency and conservation. If a customer then hired a contractor to implement the recommendations, and they were approved by a TVA inspector, TVA would pay the contractor.

Patrick Lumber Co., Inc., appellee-plain-tiff, began participating in the home insulation program in approximately 1979. Bar-rington Corporation, appellant-defendant, manufactures and markets TVA-approved storm windows.

Beginning in May of 1980 plaintiff ordered a number of windows from defendant for installation in six separate homes under the TVA home insulation program. An invoice accompanied the windows upon delivery to plaintiff which designated the specific job for which the windows had been ordered, noting the number and specifications for all the windows. The description of the windows all contained a notation indicating that the windows were “TVA windows.”

After installation, the TVA inspector rejected a number of the windows on all six jobs for not being in compliance with TVA standards.

After attempts by plaintiff and defendant to correct the problems created by the nonconforming windows, plaintiff sent defendant a letter on May 15, 1981, outlining additional expenses incurred as a consequence of the nonconforming windows.

On August 11, 1981, plaintiff filed a petition for declaratory judgment in the Circuit Court of Jackson County, Alabama, claiming defendant breached both an implied warranty of merchantability and an implied warranty of fitness for a particular purpose by supplying plaintiff with windows which failed to meet TVA approval, thereby causing plaintiff to suffer damages in the amount of $3,677.95. Defendant answered, denying any breach of warranty and counterclaimed for $1,653.60, plus interest and cost for goods sold and delivered to plaintiff for which it had received no payment.

On June 20, 1983, the trial judge ruled in favor of plaintiff finding that defendant had breached an implied warranty of fitness for a particular purpose under § 7-2-315, Code of Alabama 1975, and awarded plaintiff damages in the amount of $3,677.95. The trial court also ruled in plaintiffs favor on defendant’s counterclaim. Subsequently the trial court denied defendant’s motion for a new trial and defendant appeals.

The fundamental issue on appeal is whether the trial court erred in finding that defendant had breached an implied warranty of fitness for a particular purpose under § 7-2-315. Defendant argues that the court’s finding of an implied warranty of fitness for a particular purpose and that adequate notice of a breach was given is plainly and palpably in error and is not supported by the evidence.

“In an action for breach of an implied warranty, the plaintiff must prove the existence of the implied warranty, a breach of that warranty, and damages proximately resulting from that breach.” Storey v. Day Heating and Air Conditioning Co., 56 Ala.App. 81, 83, 319 So.2d 279, 280 (1975). A warranty for fitness for a particular purpose is implied if: (1) the seller has reason to know the buyer’s particular purpose, (2) the seller has reason to know that the buyer is relying on the seller’s skill or judgment to furnish appropriate goods; and (3) the buyer, in fact, relied upon the seller’s skill or judgment. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).

The existence of an implied warranty of fitness for a particular purpose is ordinarily a question of fact to be determined by the factfinder, either the jury or trial judge, especially if the evidence is conflicting. See, Singer Co. v. E.I. duPont de Nemours & Co., 579 F.2d 433 (8th Cir.1978); Kennebrew v. Southern Automatic Electric Shock Machine Co., 106 Ala. 377, 17 So. 545 (1894); 3 R. Anderson, Uniform Commercial Code, § 2-315:69 (3rd ed. 1983). In the present case, the trial court heard the evidence ore tenus and after evaluation determined that the legal criteria for an implied warranty of fitness for a particular purpose existed and had been breached. The record contains sufficient evidence to support the trial court’s holding.

Evidence that defendant had knowledge of plaintiffs particular purpose in buying the windows and that the buyer was relying on plaintiffs judgment and skill to furnish appropriate windows was present in the testimony of both plaintiffs and defendant’s witnesses. The evidence was un-contradicted that plaintiff relied upon defendant’s expertise in purchasing the windows. Moreover the record contains evidence that the windows delivered by defendant did not properly conform to TVA specifications or the specifications of a particular customer.

For example the evidence disclosed that some of the windows on two of the jobs were rejected because they were too loose and that on two other jobs vertical windows were delivered even though horizontal windows had been ordered. Evidence further revealed that on another order the windows were rejected because of inadequate weather stripping and that in one order a customer rejected all of the windows because one large window not meeting TVA approval did not match the other windows he ordered.

Defendant contends that plaintiff failed to prove that its windows were not manufactured to meet TVA standards, with the exception of one large odd-sized window which TVA does not approve regardless of the manufacturer. Instead, defendant argues that the problems with the windows were in their installation, which plaintiff performed.

Furthermore, defendant argues in brief that the testimony by plaintiff's employees regarding the reasons TVA inspectors rejected the windows was “rank hearsay.” Defendant insists that without such testimony there is not a gleam or glimmer of evidence to support the trial court’s decision. We cannot say however, that there is no evidence or reasonable inference therefrom to support the trial court’s decision nor can we say that the trial court’s findings are plainly and palpably wrong or manifestly unjust. See, First Alabama Bank of Montgomery, N.A. v. Coker, 408 So.2d 510 (Ala.1982). Therefore we must affirm the trial court’s holding that an implied warranty existed and was breached.

Defendant further argues that even if an implied warranty existed, plaintiff did not give reasonable notice of breach of warranty with respect to two of the six jobs involved in this suit and that reasonable notice is a prerequisite to the maintenance of an action against a seller for breach of warranty. See, Parker v. Bell Ford, Inc., 425 So.2d 1101 (Ala.1983); Lindsey v. International Shoe Co., 45 Ala.App. 566, 233 So.2d 507 (1970).

Alabama’s enacted version of the Uniform Commercial Code (U.C.C.) dealing with notice requires that where a tender has been accepted, the buyer must notify the seller of any breach within a reasonable time after he discovers, or should have discovered, the breach. The purpose of such notification is twofold: (1) it apprises the seller that a claim may be made against him and provides him an opportunity to prepare a defense or notify his supplier and (2) to enable the seller to make adjustments or replacements or to cure in order to minimize the buyer’s loss and reduce the seller’s own liability to the buyer.

While § 7-2-607(3)(a) does not indicate what constitutes sufficient notice, § 7-1-201(26), Code of Alabama 1975, provides that a person “ ‘notifies’ or ‘gives’ a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it.” Furthermore, committee comment four to § 7-2-607, states that the notification “which saves the buyer’s rights under this article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation.” See also, Page v. Camper City & Mobile Home Sales, 292 Ala. 562, 297 So.2d 810 (1974).

Defendant claims it sent servicemen to the job site to fix the windows on two of the jobs, but it heard nothing further from plaintiff regarding problems with them until trial. Plaintiff, however, stated that defendant received adequate notice when defendant had to send a serviceman out to the job site to repair the windows and was given additional notification in a letter and accompanying statement dated May 15,1981. Moreover, plaintiff points out that the record indicates that one of defendant’s representatives actually went to the job site and observed the problems with the windows prior to the filing of the present suit and that plaintiff’s general manager spoke with defendant on at least two or three occasions about the problems that had occurred on all six job sites. Oral notification has been held to be sufficient for purposes of § 7-2-607. Page v. Camper City & Mobile Home Sales, supra. Whether sufficient notice was given under § 7-2-607 is a question of fact. Parker v. Bell Ford, Inc., supra. Finding there is evidence to support the trial court’s decision and that the trial court is not palpably in error, we affirm.

On appeal plaintiff requests attorneys’ fees. “In this state attorneys’ fees are recoverable ‘only where authorized by statute, when provided in a contract or in an equitable proceeding where the efforts of an attorney create a fund out of which fees may be paid.’ ” Mass Appraisal Services, Inc. v. Carmichael, 372 So.2d 850, 852 (Ala.1979), quoting State ex rel. Payne v. Empire Life Insurance Co., 351 So.2d 538, 545 (Ala.1977). As the present case is not an equitable proceeding, no contract provision provides for fees and no statute grants attorneys’ fees, plaintiff’s request is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Richard A. ROBBINS v. Carmen J. ROBBINS (Majors).
    Civ. 4038.
    Court of Civil Appeals of Alabama.
    Feb. 29, 1984.
    J. Richard Piel of Piel & Lynn, Montgomery, for appellant.
    J. Floyd Minor, James T. Sasser, & W. McCollum Halcomb of Wood, Minor & Parnell, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

The father and mother of a child were divorced in 1981. By agreement custody of the four-year-old child was given to the mother. Reasonable visitation rights were granted to the father. The mother remarried and moved from Montgomery to Huntsville. Thereafter, difficulty arose between the parents as to visitation.

It would serve no useful purpose to detail here the numerous petitions and coun-terpetitions filed by the parties charging violations of the divorce decree. They were numerous enough to be termed “excessive.” It is sufficient to say that the trial judge heard extensive testimony relating to the problems of visitation, child support and the petition of the father for change of custody from the mother to himself.

By judgment entered June 15, 1983, the court found no change of circumstances since the divorce meriting a change of custody of the child from the mother to the father. The father moved for a new trial, alleging abuse of discretion. There have subsequently been additional filings and orders relating to enforcement.

The father has appealed charging an abuse of discretion by the court in refusing to grant custody of the child to him and failing to rule on the “question” of visitation.

First we note that appellant has failed to cite any authority in support of the issues he has presented. Such failure is contrary to Rule 28, A.R.A.P. Perhaps such failure is due to the commonness of the principle involved. That principle is that the matter of custody of children and right of visitation in a case of divorce, or modification thereof, is for the discretion of the trial judge. 8 Ala. Digest, Divorce, Key No. 296. That principle is amplified with the provision that the exercise of such discretion by the court, after oral hearing, is presumed to be correct and will be set aside on appeal only upon a finding of palpable abuse and unjustness. Thomas v. Davis, 410 So.2d 889 (Ala.1982).

Our review of the evidence and the judgment of the trial court discloses no basis for reversal.

Appellee’s request for attorney’s fees on appeal is granted in the amount of $300.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Raymond R. BOYD v. Florence BOYD.
    Civ. 4039.
    Court of Civil Appeals of Alabama.
    Feb. 29, 1984.

      J. Richard Piel of Piel & Lynn, Montgomery, for appellant.
    Richard H. Gill of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

These postdivorce proceedings concern the sale of the marital home of the parties.

The October 11, 1979 divorce judgment contained a provision whereby the Montgomery jointly-owned residence of the parties may be used by Mrs. Boyd, the defendant, until it is sold. Mrs. Boyd was not required to market the house for two years, but, after that time, she was given eight additional months within which to effect its sale. If the defendant failed to place and sell it within that eight month period, the “husband shall be free to negotiate a sale of the house.” Mrs. Boyd will receive sixty percent of the net proceeds when the residence is sold and Mr. Boyd was awarded the remaining forty percent. The division of the property of the parties was affirmed upon the first appeal of this case. Boyd v. Boyd, 390 So.2d 644 (Ala.Civ.App.1980).

Mrs. Boyd contracted with realtors for a multiple listing of the house. The real estate agents showed the property to over fifteen prospects but it was not sold by the defendant within the time allowed by the divorce judgment because of its high value, a depressed market, elevated interest rates, and an unassumable first mortgage. There was evidence that the house would probably fail to bring its market value through a public auction.

The plaintiff, his present wife, and the defendant are all realtors. Mr. Boyd and his present wife now reside in Mobile.

When the defendant failed to sell the house, the plaintiff attempted to market it. He telephoned Mrs. Boyd after nine o’clock one evening and requested that he be permitted to show the property to a prospective purchaser. She refused that request because of deep and long existing emotional differences between the parties. Mr. Boyd’s past presence at the home has been most difficult and unpleasant to both of them. Once, as he was leaving the residence, he threw a brick against the front door and on another occasion he forced his way into the house through a window when she would not let him inside.

The plaintiff filed a petition seeking an order that Mrs. Boyd either vacate the residence, giving to him its exclusive possession in order that he might sell it, or that she have the house appraised by a reputable appraiser and that she then be required to purchase his equity, or that the trial court order and conduct the sale of the residence.

An evidentiary trial was held before the trial court. Through a judgment of August 1983, as amended in September 1983, it was ordered by the trial court that Mr. Boyd may negotiate for the listing of the property with a licensed Montgomery real estate agency for a period of ninety days; that neither Mr. Boyd nor his present wife may show or enter the house, with the defendant being permitted to continue to reside therein; that certain procedures are to be followed when purchase offers are received by him, with the trial court reserving the right to require the acceptance or rejection of those offers; that the trial court’s permission may be requested to extend or renegotiate listing contracts; and that, when the marital home is sold, the wife shall receive sixty percent of the net proceeds.

The husband appealed. A question has arisen as to whether the trial court’s August and September 1983 judgments are such final judgments as to be appealable. While those judgments will not support an appeal, we opt to treat this matter as being a proceeding for a writ of mandamus in order that this controversy may be decided upon its merits. We do this because of the past and apparently continuing acrimony which exists between the parties.

The defendant filed no responsive pleading to the husband’s petition. The plaintiff first contends that the trial court should not have rendered its 1983 judgments, as amended, in the absence of an answer, other pleading, or prayer for relief by the defendant. This argument overlooks rule 15(b) of the Alabama Rules of Civil Procedure which clearly provides that “[wjhen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Since no objection was made by the plaintiff prior to or during the trial as to the lack of any pleading by the defendant, rule 15(b) applies. If an issue is raised or if evidence is presented without objection, the pleadings are considered to be amended so as to conform to the evidence. Calvin Reid Construction Co. v. Coleman, 397 So.2d 145 (Ala.Civ.App.), cert. denied, 397 So.2d 149 (Ala.1981). In addition, the raised issue is controlled by rule 54(c), A.R.Civ.P., which provides that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” That contention of Mr. Boyd is without merit.

The appellate issues thus evolve as to whether the trial court erred in refusing to allow Mr. Boyd to show the house to potential purchasers or in not permitting the husband to “negotiate a sale of the house” as was authorized by the 1979 divorce judgment.

Since the trial court reached certain factual decisions based upon the conflicting evidence, we cannot disturb those findings unless they are palpably wrong. Hutchins v. Shepard, 370 So.2d 275 (Ala.1979). We have previously summarized some of that evidence which supports the holding of the trial court and we do not find any of the circuit court’s determinations to be clearly erroneous or manifestly unjust. Actually, the sale procedures as established by the 1983 judgment are reasonable.

For appeal purposes the 1979 divorce judgment was a final judgment, but it also continued to be interlocutory in nature in the event it became essential to augment, refine, clarify, or enforce its provisions regarding a sale of the marital residence. Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.1981). The trial court, by operation of law, retained jurisdiction so' that any future orders or judgments could be entered as might be prudent in order to enforce, implement, or finally dispose of the entire case by effecting a sale of the home of the parties. Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (Ala.Civ.App.1973). An interlocutory judgment may be modified at any time before a final judgment (as to the sale of the house, if needed) is entered. Rheams v. Rheams, 378 So.2d 1125, 1128 (Ala.Civ.App.1979).

Here, the trial court evidently determined that, because of conditions presently existing, it was prudent and necessary that the 1979 judgment as to the sale of the house be extended, clarified, refined, and implemented. The trial court, of necessity, must possess a discretion to exercise in matters of this nature and we find no abuse thereof in this instance. The 1979 divorce judgment which stated that Mr. Boyd was “free to negotiate a sale of the house” was rather general and vague, and, with the passage of time, the method of sale needed to be made more specific and was, thus, altered, clarified, and augmented by the 1983 judgments. The favorable evidence was such that it justified the 1983 judgments in order to attempt the sale of the home with as little strife and discord between the parties as possible.

After a lapse of thirty days from the date of the final divorce judgment, a trial court cannot modify a division of the property of the parties. However, the August 1983 judgment, as amended in September 1983, did not alter or modify the sixty/forty percent property distribution provision as was contained in the 1979 original divorce judgment. Haney v. Haney, supra.

In short, the trial court had authority under the law as well as under the facts to render the August 1983 judgment, as amended in September 1983, and did not err in entering the amended 1983 judgment. We affirm.

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

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