author: HOLMES, Judge.

text:
    BEAN DREDGING CORPORATION v. STATE of Alabama.
    Civ. 4133.
    Court of Civil Appeals of Alabama.
    April 25, 1984.
    Rehearing Denied June 6, 1984.
    Certiorari Denied July 27, 1984 Alabama Supreme Court 83-1039.

      ■ Robert R. Reid, Jr. of Bradley, Arant, Rose & White, Birmingham, Robert E. Tarcza of Baldwin & Haspel, New Orleans, La., for appellant.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, Dept, of Revenue, and Hendon B. DeBray, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

Bean Dredging Corporation (taxpayer) appeals the trial court’s finding that certain equipment used in taxpayer’s business is not exempt from use tax under § 40-23-62(14), Ala. Code (1975).

This case was tried on the pleadings and stipulation of facts. The following, properly considered by the trial court, is pertinent.

The taxpayer is in the dredging business and was awarded a contract by the Corps of Engineers to dredge the Theodore Ship Channel in Mobile River. An assessment was made on the purchase of dredging discharge pipe delivered to taxpayer’s Alabama job site and the taxpayer was required to pay a use tax on the pipe.

The discharge pipe is part of a discharge transportation system made up of an auger, pump, and barges used to house the pump and auger and to lay the pipe. The discharge pipe is used to transport silt, sand, and sludge from the channel to dumping areas specified in the contract.

The issue in this case is whether the discharge pipe constitutes “materials, equipment and machinery which enter into and become a component part of ships, vessels or barges” and is therefore exempt from use tax under § 40-23-62(14), Ala. Code (1975).

Section 40-23-62(14) states in pertinent part:

“The storage, use or other consumption in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this article:
“(14) The use, storage or consumption of materials, equipment and machinery which enter into and become a component part of ships, vessels or barges of more than 50 tons burden, constructed or built within the state.”

The vessels or barges in the instant case are definitely “barges of more than 50 tons burden_” The discharge pipe is approximately twenty-seven inches in diameter, with a three-quarter inch wall. The pipe is attached to the barges at a heavy duty ball joint by some dozen heavy bolts. Each joint of pipe is fifty feet long and weighs five and three-tenths tons. At its greatest distance from the dumping site, over six miles of pipe is required to reach from the barge to the dump.

In order to attach sections of discharge pipe to a dredging barge or vessel, when submerged pipe is involved, it is necessary to shut down its operation for two to three and perhaps more hours; and the sections are of sufficient weight that they have to be handled during the attaching process by a crane mounted on another barge. A similar period of time and usage of a crane is required to detach sections of such pipe from the dredging barge or vessel.

The dredged material could not be loaded onto other barges or vessels due to the amount of clay in its composition. This along with the fact that the spoil had to be deposited at a dump site some miles from the dredging site precluded any other method of transportation besides the discharge pipes. There is some question as to how mobile the barge is when the pipe is attached.

The taxpayer, through able and distinguished counsel, relies heavily on State v. Sprinkle Net Shop Inc., 351 So.2d 608 (Ala.Civ.App.1977), to support its contention that the discharge pipe is a component part of the barge as contemplated by § 40-23-62(14).

The Sprinkle Net Shop case appears to be the only Alabama case construing the particular subsection of 40-23-62 that is involved in the present case. In Sprinkle this court held that fishing nets used on a shrimp boat were exempt from use tax by virtue of § 40-23-62(14). However, that case can be distinguished from the case at bar.

In Sprinkle the shrimp boat was specially designed and constructed for the purpose of commercial fishing and was unable to serve such purpose without nets. There is no evidence in this case that without the pipe the barge would be useless in the dredging business. In fact, it can be reasonably inferred from the record that there are other methods for transporting dredged material than discharge pipes. It is true that dredging on this particular job could not be performed properly without the discharge pipes; however, that does not necessarily mean that the pipe is a “component part” of the barge as contemplated by § 40-23-62(14).

The emphasis of this statute is placed on the determination of whether the evidence shows that the equipment in question becomes a component part of the vessel. The emphasis is not on the particular job to be performed at a given instant; that is only one factor to be considered and is not necessarily controlling. Just because a certain part is necessary to accomplish a particular job does not automatically make that part a “component part” within the meaning of the statute.

To stretch an analogy, a crew is certainly necessary for the operations of the dredging barge, but it is also clear that a crew of men is not a “component part” of the vessel.

A sensible construction must be given to a statute and any general terms used in the statute should be so limited as to give a practical, reasonable, and sensible application. Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 122 So.2d 757 (1960). To construe the present statute so as to include the pipe in question in the exemptions would not lead to a sensible application.

In the present ease it does not logically follow that over six miles of pipe can be a component part, as intended by the legislature when it enacted § 40-23-62(14), of a barge only as long as a football field (one hundred yards). To hold otherwise would be a strained interpretation of the statute. It is not logical that a component part could overwhelm the vessel. There could conceivably be no limit on the length of pipe used. To hold that pipe stretching from Mobile to Muscle Shoals is a component part of a barge is not reasonable, to say the least.

The fact that the auger, the pump, and the discharge pipe together are called a discharge transportation system is also indicative that the pipe is a separate piece of equipment apart from the barge. In other words, the function of the discharge pipe is sufficiently separate or distinct from the function of the barge so that they can be viewed as two individual pieces of equipment used in conjunction to remove the sand and silt from the channel.

It also appears that the pipes, although certainly equipment, do not enter into and become “a component part” of the barge. It is fairly evident, in view of the evidence in original submission, that a barge cannot be very navigable with six miles of pipe attached. When moving from site to site, the pipe must be disassembled and loaded on another barge or towed behind a self-propelled vessel to transport it.

An exemption statute uncertain in language is to be construed against the taxpayer. State v. Sprinkle Net Shop, Inc., 351 So.2d 608 (Ala.Civ.App.1977). In view of the above, this court believes it would be contrary to the intent of the legislature to hold that the discharge pipe is exempt from use tax. In other words, we find that the trial court was correct in determining that the pipe was not exempt.

It appears to this court that in view of the qualifying portion of the pertinent exemption statute, to wit, “... constructed or built within the state” there is serious doubt as to the applicability of the statute to the instant taxpayer. However, taxpayer argues that the qualifying portion is unconstitutional. In view of the above, we, as the learned and distinguished trial judge, do not find it necessary to resolve that issue.

This case is due to be and is affirmed.

AFFIRMED.

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

      . The trial court was not required in this instance to consider evidence submitted to it after entry of its decree.


source: Caselaw Access Project

license: Public Domain

text:
    HOSPITAL BUILDING AND EQUIPMENT COMPANY, DIVISION OF H.B.E. CORPORATION v. RAMCO ROOFING AND SUPPLY, INC.
    Civ. 4123.
    Court of Civil Appeals of Alabama.
    June 27, 1984.

      Martha E. Williams, Cullman, for appellant.
    Thomas A. Smith, Jr. of Smith & Willing-ham, Cullman, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a breach of contract case.

The plaintiff, Rameo Roofing and Supply, Inc., sued the defendant, Hospital Building and Equipment Company, Division of H.B.E. Corporation, in the Circuit Court of Cullman County for a breach of contract. In the plaintiffs complaint it was averred that the defendant is a Delaware corporation with a principal address in St. Louis, Missouri, and that the defendant is qualified to do business in the state of Alabama and has a registered agent, The Corporation Company, One Court Square, Montgomery, Alabama. Service was had by registered mail upon the defendant through The Corporation Company in Montgomery. The defendant filed a motion to dismiss which, as last amended, averred that the plaintiffs complaint should be dismissed for lack of venue in that the defendant is not now and was not at the time of this suit doing business in any county in the state of Alabama and that the defendant is not now performing any work in Alabama and has no employees in this state. In an attempt to document those averments, the defendant attached to the motion a letter addressed to the defendant’s Cullman attorney from the vice president and general counsel of the defendant. The court reporter’s transcript contains no evidence concerning the facts alleged in the motion to dismiss and no supportive document appears in the record upon that subject except for that letter. The trial court overruled the defendant’s amended motion to dismiss the complaint for lack of proper venue. The defendant then filed an answer to the complaint and a counterclaim against the plaintiff for breach of contract. A highly contested nonjury trial was conducted before the circuit court and the case was concluded by a detailed fact-finding judgment which awarded to the plaintiff a judgment for a total of $7,744 against the defendant and entered a judgment in favor of the plaintiff and against the defendant upon the defendant’s counterclaim. After the defendant’s motion for a new trial was overruled by the trial court, a timely appeal was taken on the defendant’s behalf by its new counsel. Two issues are here raised: (1) the overruling of the defendant’s motion to dismiss for lack of venue, and (2) the denial by the trial court of damages to the defendant upon its counterclaim.

1.

As to the defendant’s motion to dismiss the plaintiff’s complaint for lack of venue in Cullman County, other than the pleadings, the only evidence or document contained in either the clerk’s record or the court reporter’s transcript relating to the defendant’s either doing or not doing business in this state is the letter of the defendant’s vice president and general counsel which was attached to the motion to dismiss which we have already detailed herein. That letter was not competent proof of the facts contained in it. Sea Scaping Construction Co. v. McAtee, 402 So.2d 919 (Ala.1981); Rule 43(e), Alabama Rules of Civil Procedure.

“The burden of proof is on the party raising the issue of venue. Ingram v. Omelet Shoppe, Inc., Ala., 388 So.2d 190 (1980). Here, petitioner has not met that burden. We find no abuse of discretion in the trial court’s order denying the motions to dismiss or transfer venue.”

Ex parte Harrington Manufacturing Co., 414 So.2d 74, 76 (Ala.1982).

Additionally, when the plaintiff rested its case, which was near the middle of the trial, the defendant moved that the plaintiffs case either be dismissed or transferred to another county because of lack of venue. The plaintiff responded that evidence had been previously taken on the motion, whereupon the trial court stated that the matter had already been resolved through the prior hearing. Thus, it appears that evidence upon the motion was presented at that prior hearing, which evidence is not before us. We must conclusively presume that the evidence presented at the motion hearing was sufficient to authorize the order of the trial court which overruled the defendant’s venue motion. Roberts v. Roberts, 424 So.2d 644 (Ala.Civ. App.1982).

For either of the above reasons, we find no error as to this issue.

2.

Under the contract of the parties, the plaintiff, as a subcontractor, was to install the roofs upon a hospital which was being constructed in Milledgeville, Georgia, the defendant being the general contractor therefor.

No issue is raised as to the award of a judgment to the plaintiff for $7,744, which clearly included the balance due under the contract as well as $1,044 for extra work performed by the plaintiff in March 1981 at the request of the defendant. At that time the plaintiff repaired damage to the roof of building “B,” which damage had been caused by other subcontractors and tradesmen. Several months later a leak occurred in the roof of that same building at two different times. The defendant notified the plaintiff on those two occasions of ' the leaks but, when the repairs were not subsequently made by the plaintiff, the defendant contracted with two other roofing companies to do so, which is the basis of the counterclaim of the defendant against the plaintiff.

After an extensive one-day trial that lasted from 9:00 a.m. until 8:00 p.m., the trial court found for the plaintiff upon the defendant’s counterclaim and made a very detailed finding of fact as to that issue.

. We have read the entire one hundred eighty page transcript of the evidence. The testimony conflicts. For example, upon a very pivotal question of fact, there was evidence for the defendant that the leaks and damage were occasioned by a faulty installation of a portion of the flashing, which was the responsibility of the plaintiff; and, on the other hand, the plaintiff presented evidence that those leaks and damage were caused by someone breaking a roof vent and removing its cover, thereby creating a leak, for which the plaintiff was blameless. There is no need to further summarize the evidence. Suffice it to say that we find that there was credible evidence which supported the trial court's findings and holding. Where a nonjury trial is held ore tenus before the trial court, it is presumed that the factual findings of the trial court are correct and we are not authorized on appeal to change the trial court’s decision unless it was so unsupported by the evidence as to be palpably wrong. N. Wilson’s Contracting Co. v. Jones, 425 So.2d 1122 (Ala.1983); Jones v. LeFlore, 421 So.2d 1287 (Ala.Civ.App.1982). “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), A.R.Civ.P. There was credible evidence which upholds the trial court’s decision. The judgment of the trial court was not palpably wrong, clearly erroneous, nor unjust.

Having found no error regarding either of the issues so aptly argued by able counsel for both parties, the judgment of the trial court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Walter PATRICK v. Leo L. ARNS, Jr.
    Civ. 3974.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Joseph C. McCorquodale, III, Jackson, for appellant.
    Wyman 0. Gilmore, Jr. of Gilmore & Gilmore, Grove Hill, for appellee.
   HOLMES, Judge.

The plaintiff (Arns) sued the defendant (Patrick) for fraud. After an ore tenus hearing, the trial court entered a judgment for Arns and assessed his damages at $5,600. Patrick, through able counsel, now appeals and we affirm.

The dispositive issue on appeal is whether the evidence supports the conclusion that actionable fraud and/or misrepresentation was perpetrated by Patrick on Arns. Patrick also contends that Arns did not plead fraud with sufficient particularity.

The facts of this case are somewhat unusual. The facts in many fraud cases are where the seller has defrauded the buyer. In the case at bar, the seller has brought suit against the buyer for fraudulently inducing him to part with his vehicle without fair and just recompense.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is pertinent:

Arns is in the trucking business in Arizona, where he lives. At the time in question, 1981, he owned and operated a 1972 freight truck with which he pulled a semitrailer hauling goods. The combined rig is commonly referred to as an “eighteen wheeler.” Arns bought the truck new for approximately $34,000.

Patrick is a qualified diesel mechanic with almost twenty years’ experience. In 1981, he operated a repair garage and service station in Grove Hill, Alabama. Mr. Arns and Mr. Patrick had occasion to meet when Arns was passing through Grove Hill on his way to Miami to deliver a load of perishables, to wit, lettuce.

On this occasion Arns’s truck broke down on the side of the road in Clarke County. Arns was put in touch with Patrick and Patrick towed the truck to his garage for repairs. There was some question as to what exactly was wrong with the truck. Both men thought the trouble might be a “blown” gasket.

Patrick was unable to start immediately on the truck due to work already undertaken. Arns was worried about his lettuce spoiling and he was understandably anxious to have his truck repaired. In order to cut down on the time spent on repairing the truck, Arns worked three or four hours removing what parts he could to facilitate Patrick’s access to the suspected trouble “spot.” It was late afternoon before Patrick could finally start working on the vehicle.

Arns eventually realized that the truck would not be repaired in time to save his produce, so with Patrick’s help, he rented another truck to complete his journey to Miami. Arns testified that when he left, he authorized Patrick to determine what was wrong with the truck and if the problem turned out to be blown gaskets to repair it.

After making his delivery in Miami, Arns called Patrick to learn the status of his truck. Patrick told Arns that he had a buyer for the truck and Arns would receive $9,500 from a total $12,000 sales price if he agreed to sell. According to Arns, nothing was said about the condition of the truck as far as what was needed to repair the vehicle.

Patrick informed Arns on his return that he had performed certain tests on the engine and the motor had two cracked heads and a cracked block. Patrick also told Arns that the truck would need a new engine to be operable again and that he had already performed some $3,600 worth of work on the truck. Both men agreed that a new engine would cost in the neighborhood of $12,500. The truck’s engine was at this point disassembled or broken down and parts were strewn around and about the truck and garage. Needless to say, it appeared to Arns at this point that the offer to buy the truck for $9,500 was no longer open.

At some point during the discussion, Patrick offered to forget the approximately $3,600 in repairs and labor already incurred and give Arns $1,600 for his truck “as is.” Arns did not have enough money to pay the bill or have the truck repaired. Ultimately, Arns accepted Patrick’s offer and gave him a bill of sale in return for $1,600. Patrick later sold the truck, in virtually the same condition as it was when Arns sold to Patrick, to another party in the trucking business for $20,000. Suit followed upon Arns’s learning of the subsequent sale with results as indicated above.

Patrick’s first contention on appeal is that Arns did not plead fraud with sufficient particularity. We do not agree.

Arns’s complaint stated three counts, all involving the same set of facts and arising from the same incident. All three counts were grounded on a theory of fraud and misrepresentation. The complaint states sufficient facts to apprise Patrick of the time and circumstances of the misrepresentations and the facts misrepresented.

Briefly, Arns set forth in his complaint that his truck broke down, the date and place where his truck broke down, a description of the truck, and the fact that Patrick towed the vehicle to his garage. Arns’s complaint stated that Patrick represented that he was a qualified diesel mechanic, that Patrick represented he had checked the engine, that he had taken the motor apart and was in a position to know the true condition of the truck. Arns also alleged that Patrick knowingly misrepresented the condition of the truck by saying that it needed major repairs, including a new engine, that the motor in it was com-, pletely defective, and that the block and heads were cracked and it would cost over $12,000 to have the truck repaired.

Arns further alleged that Patrick knowingly misrepresented the condition of the truck by saying that it needed major repairs and a new engine for the purpose of inducing Arns to sell his truck. Arns’s complaint also stated, in essence, that Arns relied on the misrepresentations and sold the truck for $1,600 when the vehicle’s value was actually $20,000.

Arns’s complaint, to this court, set out the alleged fraud with sufficient particularity to comply with the rules of civil procedure, Rule 9(b), Alabama Rules of Civil Procedure. The purpose of the rule is to give fair notice to the opposing party so that he has adequate opportunity to defend. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979); appeal after remand, 395 So.2d 475 (Ala. 1981). It is not a requirement that every single fact involved in the incident be stated in the complaint. The rule only prohibits a general averment of fraud without sufficient facts to apprise the opposing party of the incidents that constitute the alleged fraud- Here there is sufficient particularity to inform the defendant of the incident from which fraud is alleged to have occurred.

Patrick next contends the evidence does not support a finding of fraud. Specifically, Patrick contends that Arns did not prove a false representation. We do not agree.

Our supreme court has outlined the elements of a cause of action sufficient to constitute legal fraud thusly:

“Regardless of whether the representations were made wilfully, recklessly or mistakenly, it has been held that there must be (1) a false representation, (2) the false representation must concern a material existing fact, (3) the plaintiff must rely upon that false representation, and (4) the plaintiff must be damaged as a proximate result....”

Winn-Dixie Montgomery, Inc. v. Henderson, 395 So.2d 475, 476 (Ala.1981).

It is appropriate at this time to also state this proposition of law:

“The presence or absence of fraud is a question to be determined by the trier of fact. To the extent fraud is a factual question, the trial court having tried the case ore tenus, this court will indulge all favorable presumptions to sustain that court’s conclusion and it will be disturbed on appeal only if shown to be plainly erroneous or manifestly unjust.”

Roberts v. Peoples Bank & Trust Co. of Sylacauga, 410 So.2d 393, 395 (Ala.1982).

With the above guiding principles in mind, we find that there was evidence that would support a finding of a false representation of a material existing fact that is consistent with the trial court’s finding of fraud.

The false representation in the present case concerns the condition of the truck’s engine. Arns contends that Patrick represented to him that the engine was in such shape as to render the truck relatively worthless. Patrick contends that Arns failed to prove at trial that any of the representations were false.

The evidence and the reasonable inferences therefrom would support a conclusion by the trier of facts that the truck was not in the condition that Patrick represented.

Without going into great detail, the following supports the trial court’s conclusion that a material misrepresentation did occur.

Patrick was in the better position at the time to know what diagnostic tests, if any, had been performed on the engine. There was testimony that Patrick told Arns that a certain test had been performed which revealed that the block was cracked. Although the testimony was in conflict, there was sufficient evidence from which the trier of fact could conclude that Patrick did not have the necessary equipment, nor the time, to perform that particular test. There was also testimony that sometimes a crack in the block can be too small to be seen with the unaided eye. From this the trial court could have concluded that at the time Patrick told Arns the block was cracked there was no way he could actually have known the condition of the engine. Put another way, Patrick represented that the block was cracked and the engine worthless without actually knowing the truth of that statement. See International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977) (an action will lie for damages when one makes representations relied upon by another without knowing or earing whether they are true or false).

Even if one concludes that Patrick did indeed perform this particular test, there are two possibilities. Patrick performed the test and either the block was cracked or the block was not. From all of the evidence it appears that the former possibility is the least likely.

There was evidence from which the trial court could conclude that Patrick did not have $3,600 in work already in the truck. This has two ramifications. Primarily, this adds to the expense of repairing the truck, thereby putting more pressure on Arns to sell. Arns was a stranger many miles from home and his truck was broken down and the engine disassembled. Certainly the thought of a $3,600 mechanic’s lien would be a heavy consideration under these circumstances. Secondarily, this adds to the possibility that Patrick represented the engine to be in worse shape than he was in a position to know as true. This $3,600 is in addition to the prospect of having to spend $12,500 for a new engine to have the truck running. In essence, Patrick represented to Arns that it would cost $16,000 to get his truck on the road again.

The strongest evidence that there was a knowingly made misrepresentation is the fact that Patrick, a short time after buying the truck, sold the vehicle “as is” to a person in the trucking business for $20,000. There was testimony that the truck at that time, 1981, would be worth $20,000 if it were operating properly. By Patrick’s own representations it would take at least $16,-000 to make the truck run again. Surely no one in the trucking business would spend $36,000 for a ten-year-old truck that cost $34,000 brand new. From these circumstances the trial court could reasonably have inferred that the truck was not in the condition that Patrick represented to Arns, that the truck was in better condition, and that Patrick knowingly misrepresented that fact.

All persons are under a duty not to fraudulently misrepresent material facts to persons with whom they have business dealings. Huntsville Dodge, Inc. v. FuRNas, 361 So.2d 585 (Ala.Civ.App.1978).

Given the presumptions accorded the trial court’s decree and the principles of law enunciated previously, we find that there is sufficient evidence from which the trier of fact could conclude that actionable fraud was perpetrated on Arns by Patrick.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Essie C. EASTERLING v. Leonard C. EASTERLING.
    Civ. 4076.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Gregory A. Carr, Montgomery, for appellant.
    C. Richard Moore, Jr., Clanton, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The parties to this appeal were divorced after fifty-three years of marriage by the Chilton County Circuit Court. The trial court made a division of property awarding the husband twenty-eight acres of land and the wife five acres with the marital home-place, barn and other improvements.

The wife, through able counsel, appeals, contending that the trial court erred in awarding the husband real estate which had been inherited by the wife from her family. We find no error and affirm.

It is axiomatic that a division of property is well within the sound discretion of the trial court, and the trial court’s decision will not be disturbed on appeal absent a plain and palpable abuse of discretion. Perkins v. Perkins, 419 So.2d 593 (Ala.Civ.App.1982). The division of property does not have to be equal, only equitable. Factors to be considered in the division of property include the future prospects of the parties, their age, health, station in life, and length of marriage. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App. 1981).

Viewing the record with the attendant presumptions, the following is pertinently revealed. The wife was at the time of trial seventy-three years old and the husband, seventy-one. They were married, as indicated, fifty-three years and lived together on the “family” farm of some thirty-three acres for forty-seven years, raising seven children. The wife had inherited the farmland from her family in 1936. The husband built the house and barn with materials largely bought by the wife.

Both the husband and wife worked the family farm during the marriage. Occasionally the husband worked various jobs outside the farm. In the last years of the marriage, both parties experienced a decline in their health. The wife has had a kidney removed and suffered three heart attacks. The husband injured his back in an automobile accident and has been unable to work consistently since then. The parties, at present, support themselves mainly from Social Security and help from their children.

The trial court divided the parties’ property so that the wife retained the marital home, five acres, a barn and improvements. The husband received twenty-eight acres of land. The husband has no house and at present lives with one of his daughters. Under the instant facts, we find no abuse of discretion in such a division. It is true that the wife was deeded the property in 1936. However, where property is used regularly for the common benefit of the parties during their marriage, such property may be divided as the equities require. Ala.Code § 30-2-51 (1975). Johnson v. Johnson, 423 So.2d 871 (Ala.Civ.App.1982).

It is clear from the record that the land in question was used for the common benefit of the parties. From this farm the family made their livelihood. While there is some conflict as to who contributed what and how much, it is the duty of the trier of fact to resolve such conflicts. We cannot substitute our judgment for that of the trial court. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980). In any event, it is left to the trial court to use any reasonable means to effect a just property settlement and just equities between the parties. Simmons v. Simmons, 422 So.2d 799 (Ala. Civ.App.1982). Regardless of the contributions made by the respective parties, the evidence supports a finding that the property in question was used for the common benefit during the marriage, and as such the trial court is empowered under § 30-2-51 to divide the property as equity requires.

This ease is due to be and is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    James Hamilton COLLIER v. STATE of Alabama, ex rel. Martha Collier KIRK.
    Civ. 4087.
    Court of Civil Appeals of Alabama.
    July 11, 1984.

      Paul A. Young, Jr., Enterprise, for appellant.
    Gordon F. Bailey, Jr. of Bolt, Isom, Jackson & Bailey, Anniston, for appellee.
   BRADLEY, Judge.

Martha Collier Kirk and James Hamilton Collier were married on September 25, 1974. The parties separated on October 24, 1974. A minor child, Steve DeShawn Collier, was born to this marriage on May 12, 1975.

On November 29, 1977 Ms. Kirk and Mr. Collier were divorced by order of the Circuit Court of Calhoun County, Alabama. In reply to the petition for divorce, Mr. Collier alleged that there were no children born to the marriage “having been fathered by Defendant,” and then stated that he was willing “to have a blood test or any other test that will prove that he is not the father of said Leonard Steve DeShawn Collier.” Thereafter, the parties entered into an agreement whereby they agreed that Ms. Kirk was to have “the complete care, custody and control of the minor child of the marriage, ... with no visitation rights vested to husband.”

At the hearing in the present proceeding, Mr. Collier stated that he had known Ms. Kirk only two or three weeks prior to their marriage, that he and Ms. Kirk had sexual relations on one occasion, that being September 25, 1974, and that the remainder of the thirty-one days he and Ms. Kirk lived together they did not cohabit in a husband and wife relationship. Ms. Kirk stated at trial that she and Mr. Collier had sexual relations prior to their marriage. Furthermore, Ms. Kirk stated at trial that she was receiving $177 per month in public assistance from the state of Alabama. She stated that she had three children residing with her besides the minor child in issue. According to Mr. Tommy Poe, an employee of the child support unit for the Department of Pensions and Security, $44.25 per month was the accountable portion for the support of Steve DeShawn Collier.

On August 1, 1983 the state of Alabama, on behalf of Ms. Kirk, filed a child support petition against Mr. Collier for the support of the minor child, Steve DeShawn Collier. A hearing was set pursuant to Mr. Collier’s motion to dismiss for the same date as the child support hearing on October 25, 1983. At this hearing Mr. Collier’s motion to dismiss was denied and an order of support was entered against Mr. Collier in the amount of $44.25 per month to begin November 1, 1983. Moreover, Mr. Collier’s repeated request for a blood test was denied.

On November 2, 1983 Mr. Collier filed a motion to set aside the decree of support, arguing again that he was not the father of Steve DeShawn Collier, and again requesting blood tests to determine the paternity of said minor child. The state of Alabama responded to said motion, stating the motion should be denied, as Mr. Collier failed to show any legal or factual basis upon which said motion could be granted.

The trial judge denied the motion to set aside the child support order on November 8, 1983. Thereafter, on November 23, 1983, Mr. Collier filed his notice of appeal to this court.

Mr. Collier contends here that the trial court committed reversible error in denying his request for a blood test. We disagree.

We find our case of Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App.1980), cert. denied, 392 So.2d 1196 (Ala.1981), to be dis-positive of this appeal. See also Julian v. Julian, 402 So.2d 1025 (Ala.Civ.App.1981). The facts in the Stewart case reveal that the parties were divorced and the divorce decree contained the following phrases as to the paternity of the wife’s unborn child: “ ‘when the minor child of these parties is born,’ ‘after the minor child of these parties reaches the age of 2 years,’ ‘the parties’ unborn child,’ ‘the minor child of the parties,’ and ‘the parties’ minor child.’ ”

In response to the husband’s contention that he was not the father of the wife’s unborn child, this court said:

“While we have been unable to locate an Alabama case in point, the cases from other jurisdictions are almost unanimous that such phrases in a judgment constitute a finding that the defendant was the father of the child and that in subsequent proceedings between them, a husband and wife are concluded by the paternity determination in the divorce judgment. 78 A.L.R.3d 825; 65 A.L.R.2d 372. ‘Moreover, the question of legitimacy is res judicata between the parties, where it was alleged in the complaint for divorce that the children were the issue of the marriage between plaintiff and defendant, and the decree awarded to plaintiff the custody and care of the issue of the marriage.’ 27B C.J.S. Divorce § 321(1) at 629 (1959).”

In the case sub judice the divorce decree was based on an agreement of the parties whereby it was stipulated that the mother was to have “custody ... of the minor child of the marriage.” We conclude, therefore, that the question of paternity is res judica-ta as to these parties in this proceeding.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Willis D. PARKER v. Johnnie Teresa Parker PRITCHETT.
    Civ. 4089.
    Court of Civil Appeals of Alabama.
    July 11, 1984.

      Wayne L. Williams of Williams & Pradat, Tuscaloosa, for appellant.
    John A. Russell III, Aliceville, for appel-lee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from a judgment modifying child custody and support.

A judgment of divorce was rendered by the trial court on June 21, 1979 awarding custody of the minor child, age three, to appellee, and appellant was ordered to pay $100 per month for child support and was given two days’ visitation rights per week. The two days per week visitation were unspecified in the judgment and have been used each weekend by the appellant. Ap-pellee filed for modification of the judgment, asking for custody two weekends a month, as she is now employed which gives her less time with her child. The child is now in school and her financial needs are greater, she has less time at home, and the appellant has increased income.

After an ore tenus hearing the trial court modified the judgment, ordering appellant to pay $200 per month for child support and giving the appellee, the custodial parent, custodial rights on the first and third weekend of each month.

Appellant contends on appeal that the support and custody arrangement in the original judgment was by agreement and no material change in circumstances was shown on trial of the motion and that the trial court abused its discretion in modifying the original judgment.

We note in reviewing the record that the original agreement and judgment were not included but testimony stated the custody and support arrangement was by agreement of the parties. A decree fixing alimony and support payments in accordance with the parties’ agreement will not be modified except for clear and sufficient reasons after the question has been subjected to thorough consideration and investigation. Walker v. Walker, 255 Ala. 599, 52 So.2d 505 (1951). But an agreement between the parties fixing alimony and child support payments becomes merged into the decree and thereby loses its contractual nature, at least to the extent that a court of equity has the power to modify, when changed conditions so justify. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969); Colton v. Colton, 252 Ala. 442, 41 So.2d 398 (1949); Taylor v. Taylor, 369 So.2d 1240 (Ala.Civ.App.1979).

The evidence reveals that the appellant’s take-home pay is approximately $1,000 per month; that the child’s portion of household and living expenses is approximately $372 per month; that there has been some change in living and social conditions due to increased age of the child, now seven, her school work, and the mother being employed.

The trial court can, in its discretion, modify an original award for alimony or support in a divorce decree on proof of changed circumstances of the parties, one or both, but unless the discretion is abused an order will not be reversed on appeal. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967); Mencer v. Mencer, 277 Ala.679, 174 So.2d 319 (1965).

The amount of child support is a matter within the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of discretion. Hall v. Hall, 391 So.2d 122 (Ala.Civ. App.1980). We cannot say the trial court abused its discretion in this case.

As to the contention that the trial court erred in the modification of visitation privileges, the trial court has wide discretionary power in the settlement of visitation rights. Hall v. Hall, supra; Skipper v. Skipper, supra. We are unable to say the trial court abused its discretion as to visitation rights.

There being no palpable error nor abuse of discretion in the trial court’s judgment, this case is hereby affirmed.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Helen Marie ABRELL v. Raymond Leonard ABRELL.
    Civ. 4147.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    John T. Kirk, Montgomery, for appellant.
    Maury Smith and Edward B. Parker II of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a case involving an award of alimony and a property settlement.

Appellant, wife, and appellee, husband, were married in 1953. Four children were born of the marriage, all of whom have attained majority. Husband was in the military service during most of the marriage. He attended night school over a nine-year period of time, eventually completing three master’s degrees. Upon retiring from the military, husband began a career in real estate and has accumulated seventeen years of experience in that field. Wife completed the eighth grade and recently obtained her GED and a real estate license. She has worked part time over the last three years.

In May 1983, wife filed for divorce, alleging incompatibility and an irretrievable breakdown of the marriage. She also filed a motion to place proceeds of real estate sales in escrow with the court. Colonial Bank moved to intervene, seeking reimbursement in the amount of $7,875 for a worthless check, punitive damages in the amount of $20,000, interest, costs and a reasonable attorney’s fee. Colonial’s motion was granted. Trial was held and a final decree of divorce granted on October 26, 1983. The court denied wife’s motion to alter, amend, or vacate the decree or in the alternative to grant a new trial. In response to wife’s petition for emergency hearing regarding alimony pending appeal, the trial judge denied her alimony pending appeal but ordered that $2,500 of the money held in escrow be released to wife. Wife appeals.

Wife contends the trial court erred (1) in its property settlement, (2) in the amount of periodic alimony awarded and (3) in the failure to award wife any of the husband’s military retirement benefits.

We note the applicability of the ore tenus rule to the case. That is, the judgment of the court following an ore tenus trial is presumed correct on appeal. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981). It will not be reversed unless without support of evidence or it is unjust. The division of property and granting of alimony is within the sound discretion of the trial judge. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980). The division of property does not have to be equal. It is only required to be equitable, with each case decided on its own facts and circumstances. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980).

The decree provided for the division of property as follows: Wife received realty located at 2909 Lansdowne Drive, 308 W. Rutgers Loop, 309 Dewanee Court, 5604 E. Shades Valley, 3711 Cotton Street, a lot on Highland Park, a time share unit at the shore and six burial plots. Husband was awarded title to the following realty: 230 Noble Avenue, 3219 McGhee Road, 2637 Overhill Road, a lot at Rolling Hills and 125 Golf Terrace in Mobile. Title to the properties was vested in the respective parties subject to existing mortgages which each is to assume and pay. The court awarded joint interest to the 20% interest in Home Traders, the 25% partnership interest in the AGLJ Company and the 11% interest in Arrowhead Investment Company. If these interests be sold, the net proceeds are to be split equally, as is any income derived from the property. Wife was awarded all rights to the second mortgage derived from the sale of the Gaston Avenue property.

The decree provided that Colonial Bank of Montgomery was to be paid from funds held in escrow and that any remaining sums be equally divided. Husband is to assume responsibility for any tax consequences arising from the sale of the realty which produced the proceeds on deposit with the Deputy Register. Wife was also awarded ownership of a 1973 Cadillac and a 1979 Dodge van, and husband was awarded a 1981 Cadillac. Wife was awarded all household furniture and fixtures. Husband is awarded sole and exclusive right, title and interest to the homeowner’s franchise, as well as his clothes and personal effects. Each party received his own burial plot.

As periodic alimony husband is to pay wife $1,000 per month for six consecutive months, beginning November 15, 1983. On May 15, 1984, that alimony will decrease to $500 per month. Wife was awarded $3,000 for an attorney’s fee. Husband is to maintain $100,000 life insurance on himself, with his wife as irrevocable beneficiary, as long as she does not remarry. Husband is to be responsible for payment of all marital debts incurred through September 1, 1983.

The judgment of the court, when viewed in light of the circumstances of this case, does not present an abuse of discretion. Despite the disparate contention of the parties that the other received the best of the division, there is evidence that both should be able to live and rebuild their lives upon the division of property and their individual earning capacities. Divorce does not always leave the parties so fortunate.

With regard to the wife’s contention that she should have been awarded some of husband’s military retirement benefits, we observe that we have previously said that military retirement benefits are proper sources of income from which to pay periodic alimony. Edwards v. Edwards, 410 So.2d 91 (Ala.Civ.App.1982). However, the court is not obligated to designate a percentage of retirement benefits to that end. Finding no abuse of discretion, we affirm the trial court’s judgment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    R.D. ANDREWS, Jr. v. Carolyn M. ANDREWS.
    Civ. 4163.
    Court of Civil Appeals of Alabama.
    July 11, 1984.

      Lawrence B. Voit of Silver & Voit, Mobile, for appellant.
    Robert E. McDonald, Jr., Mobile, for ap-pellee.
   BRADLEY, Judge.

Husband and wife were divorced by judgment entered on July 16, 1982. Paragraphs 7 and 8 of the decree provided as follows:

“7. That Leroy Tanker be and hereby is appointed as Appraiser to fix the fair market value of the Viva Corporation and the Alabama Rental Corporation of the parties and that after said appraisal has been completed and duly filed in this Court, that the Plaintiff shall receive one-half of the Defendant’s equity in the corporations as determined by the Appraiser herein and further that the Plaintiff shall convey to the Defendant all of her right, title and interest in and to said corporations within thirty days from this date and in the event the Plaintiff fails, refuses or neglects to do so that the Register of this Court is hereby authorized and empowered to execute said conveyance on behalf of the Plaintiff upon proper affidavit and legal description thereof being filed with the Court and the Plaintiff shall be held harmless from any liabilities due on said corporations.
“8. That the equity as determined by the above Appraiser in the above corporations shall be paid to the Plaintiff as alimony in gross payable at the rate of $200.00 per month, including interest at the rate of 12%>, until such time as the entire amount is paid in full.”

Husband, on the date of the divorce, owned all of the outstanding stock in Viva Corporation and eighty percent of the outstanding stock in Alabama Rental Equipment, Inc. Leroy Tanker, a certified public accountant, prepared valuation reports of these two companies dated August 12, 1982. These reports were based on information supplied to Tanker by the bookkeeper for the two corporations and by onsite inspections of the physical assets of those companies. The reports fixed a value for Alabama Rental at $53,040 and Viva at a negative value of $18,010. For his services Mr. Tanker submitted a bill for $1,800 for each report.

Husband filed a written objection to these reports on November 17, 1983 questioning their accuracy and the methodology used. He also objected to the fees charged by Mr. Tanker.

Husband contends here that Tanker’s reports are inaccurate. He says that an outstanding indebtedness of Viva was omitted from Tanker’s assessment of husband’s equity, thus showing an inflated interest of the husband in the company.

Even assuming that such was the case, the report submitted by Tanker revealed that Viva had a negative market value and husband was not assumed to have an equity in that business entity.

A certified public accountant testifying for the husband stated that the appraisal of Alabama Rental was flawed and again based his opinion on the failure of Tanker to include data that the witness said should have been included in the appraisal report.

The trial court heard and observed the witnesses testifying for each party and considered the reports of the appraiser appointed by the court. The court rendered a judgment in which it found that husband’s equity in Viva had a zero value and that his equity in Alabama Rental had a value of $53,040.

Where evidence is conflicting, the reviewing court will not substitute its judgment for that of the trier of facts. Shiver v. Waites, 408 So.2d 502 (Ala.1981). The evidence as to the value of the husband’s equity in the two corporations was in conflict, and we will not substitute our judgment for that of the trial court in fixing the value of his equity.

After determining the value of husband’s equity in the two companies, the trial court then awarded wife $26,520 as alimony in gross. This award amounted to one-half of husband’s equity in Alabama Rental.

When a trial court renders a decree after a hearing ore tenus, such decree is presumed correct if supported by the evidence. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962). The division of property and determination of alimony in a divorce case are matters to be resolved by the trial court in the exercise of its discretion and the decision of the court will not be reversed except for an abuse of that discretion. Clary v. Clary, 56 Ala.App. 494, 323 So.2d 380 (Ala.Civ.App.1975). As there are no fixed standards for determining the proper amount of alimony, each case must be decided on its own facts and circumstances. Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475 (Ala.Civ.App.1975). Alimony in gross is intended to compensate a wife for the inchoate marital rights and right to future support which she loses by virtue of the divorce, as well as substitute for a property settlement where liquidation of the marital property is not practical. Stewart v. Stewart, 341 So.2d 490 (Ala.Civ.App.1977).

After carefully reviewing the evidence in the case at bar, we are not convinced that the trial court abused its discretion in the award of alimony to the wife.

Husband’s other issue questions the $3,000 awarded to Tanker as an appraiser’s fee. He says the award is not adequately supported by the evidence.

The trial court appointed Mr. Tanker, a certified public accountant, to appraise the value of the two companies and to report back to it. Mr. Tanker did so and submitted a bill to the court for his services. The bill was for $1,800 for each report, amounting to a total of $3,600.

The husband introduced evidence that Mr. Tanker should be paid no more than $600 to $1,000 per report. The court awarded Mr. Tanker $3,000, or $1,500 per report.

Again, where evidence is in conflict and the trial court’s judgment falls within the perimeters of the evidence, this court will not substitute its judgment for that of the trial court. We find the amount of the fee awarded to Mr. Tanker to be supported by the evidence.

The judgment of the trial court is affirmed.

Wife’s request for an attorney’s fee on appeal is granted in the amount of $300.

AFFIRMED.

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


text:
    Cherie Lynn FOSTER (Olson) v. Don Leslie FOSTER.
    Civ. 4167.
    Court of Civil Appeals of Alabama.
    July 11, 1984.

      William E. Shinn, Jr., of Harris, Shinn, Phillips & Perry, Decatur, for appellant.
    Kenneth Shelton, Decatur, for appellee.
   BRADLEY, Judge.

This is a child custody modification case.

The parties to this proceeding were divorced on September 22, 1977. Under the decree of divorce, custody of the parties’ two sons, Rod, age fourteen, and Beau, age eleven, was awarded to the husband.

Subsequently, the mother petitioned to modify the decree and to award her custody of the children. On September 16, 1980 the trial court entered an order finding that primary custody would remain with the father but that both parents would be allowed to “share responsibility and control of the children.” In addition, "the father was required to pay $3,600 per year as child support.

On January 15, 1981 the court modified the September 16 judgment by granting custody of the children to the mother one weekend each month and two months during the summer. The court also reduced the child support to be paid from $3,600 per year to $2,880 per year. This court affirmed the actions taken by the trial court. See Foster v. Foster, 409 So.2d 833 (Ala.Civ.App.1981).

On August 15, 1983 wife filed a petition to modify the prior judgments and to award her primary custody. She alleged that a material change in circumstances had occurred since the January 15 decree in that both children now preferred to be in her custody.

An ore tenus hearing was held on August 26, 1983. On September 14, 1983 the trial court entered a final judgment denying the mother’s request for primary custody, depriving mother of any custody rights, and terminating child support. The court did give the mother certain specified visitation rights. Mother appeals.

Mother’s first contention is that the trial court erred in denying her primary custody of the children. It has been said that:.

“The party seeking modification of a child custody decree has the burden of showing a material change in circumstances which adversely affects the welfare of the child. Murphy v. Quinn, 402 So.2d 1033 (Ala.Civ.App.1981). A court which hears the evidence is in the best position to ascertain whether there has been such a change in circumstances as to require a custodial change and its decision will not be overturned except for an abuse of its discretion. Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App. 1980).”

Sanders v. Sanders, 435 So.2d 123 (Ala.Civ.App.1983).

The evidence shows that the children have been living with their father for the past six years in Decatur, Alabama. Both children attend school in Decatur, have made many friends there, and participate in athletics. Their only grandmother lives in Decatur and the younger child, Beau, visits with her often.

Father married Ann Foster in September 1982, and the family lives in a five bedroom home. Ann’s two children from a previous marriage, Steve, age sixteen, and Michael, age eight, also live there. There was evidence that Johnny, father’s twenty-one year old son from a prior marriage, has at times resided in the house.

Both children testified that father is a “good father.” The boys are well taken care of and are doing well in school. Beau is above average scholastically and is an exceptional student. They are active in sports and are good athletes. Father attends most, if not all, of the children’s football and baseball games, consults with their teachers on a regular basis, and keeps up with the boys’ school work. The family attends church regularly. In addition, the evidence shows that Ann Foster, husband’s present wife, loves Rod and Beau, treats them like her own, and shows no favoritism between them and her own children.

There was evidence that father is out of town on business trips at least once a week. Before he remarried, the children stayed with his mother. Now, Ann takes care of the children while he is gone. She does not work.

The evidence shows that mother married Alan Olson in January 1978. The couple lived in Decatur for a while but moved to Albany, Georgia in 1980. They live in a four bedroom house with a swimming pool. Mr. Olson, wife’s new husband, is employed by Chem-Treat, Inc. and earns approximately $65,000 a year. Mother does not work, but receives $240 a month child support. The couple have a son, Alan, Jr., who is four years old. Also living with them is Mr. Olson’s twelve year old daughter from a previous marriage. There was evidence that the family belongs to St. Paul’s Episcopal Church, but that they do not attend services in the summertime. Mr. Olson is active in the church youth program, the Boys’ Club, the YMCA, and the Dixie Baseball program. He participates in activities with the boys and they like him. Both children have made friends in Albany during the time they visit there, and would attend school not far from mother’s house. They have played sandlot baseball and have taken judo and art classes in Albany.

The father testified that when the boys return from visits with their mother, they are withdrawn and emotionally upset, and talk about living with their mother on a permanent basis. However, after a week or so they return to normal and cease their talk about moving.

The evidence shows that both Rod and Beau are mature young men who are capable of making sound decisions. Although they love both parents, each child has expressed a desire to live with his mother. There was evidence that they are happier and more comfortable living with her and that she is “easier to talk to.” The children testified that they are scared to talk to father about going to live with their mother. Rod, the older boy, refused to return to Decatur at the end of his summer visitation.

The mother argues in brief that the trial court erred by not abiding by the wishes of the children to live with her. The wish of a child to be with its mother is not compelling on the court, but is a factor for the trial court to consider in deciding whether to change custody. Sanders v. Sanders, supra; Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). The ultimate decision of the trial court must be based on what is in the best interests of the child. Robertson v. Robertson, 415 So.2d 1085 (Ala.Civ.App.1982).

After a careful examination of the evidence in this case, we are not convinced that the trial court abused its discretion in refusing to change the custody of Rod and Beau from the father to the mother. Father has had custody for the past six years and based on the evidence is a fit and proper custodian. He is a good provider and regularly supervises the children’s emotional, physical, and educational development. The children are well adjusted and enjoy a stable home life. The court obviously considered the fact that this stability would be disrupted if the children were to move to Albany. They would have to change schools and leave their friends and family in Decatur. The trial court also stated that it was more impressed with Ann Foster than it was with Mr. Olson.

We conclude, therefore, that the mother has failed to show a sufficient change of circumstances to warrant the court in depriving the father of primary custody of his two sons. See Sherrod v. Sherrod, 361 So.2d 17 (Ala.Civ.App.1978).

By the same token, we are not convinced that the evidence supports depriving the mother of the custody rights previously awarded to her.

We acknowledge that a trial court has broad discretion in changing custody of a child and in awarding visitation rights to the noncustodial parent. Price v. Price, 440 So.2d 1110 (Ala.Civ.App.1983). However, it is also the rule that before a court can change a parent’s custodial rights there must exist a material change in circumstances which so adversely affects the welfare and best interests of the children that a change of custody is in order. Murphy v. Quinn, supra; McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977). If such a change in circumstances does not exist, then the order entered by the trial court cannot stand and is due to be reversed. Price v. Price, supra; Taylor v. Taylor, supra.

The father did not request, by answer or counterclaim, nor did he prove that the mother should be deprived of her custody rights of the two boys.

Under the prior decrees of the court the mother shared custody of the boys by keeping them one weekend a month, certain holidays and two months in the summer. Under the new decree of the court, the mother has the physical possession of the boys one weekend a month, certain holidays, and two months in the summer.

There was no evidence that the children had been other than well cared for when they were in the custody of their mother. It was obvious that she loved her boys and that they loved her. She testified that she wanted whatever was in the boys’ best interests and whatever would promote their happiness.

While in their mother’s care the boys had been well fed and well clothed. There was evidence that they participated in sporting events just as they did when they were in the custody of their father. The boys testified that they got along well with their stepfather and wanted to live with their mother.

The only evidence that we were able to find in the record that could possibly support the termination of mother’s custody related to testimony that the mother did not take the boys to church during the summer, that in the summer of 1981 she had some discipline problems with the boys and asked the father to help solve them, and that the mother puts pressure on the boys to come live with her full time.

We are of the opinion that this evidence is insufficient to satisfy the standard required to be met in order to deprive a parent of custody, i.e. a material change in circumstances since the last custody decision. See Sherrod v. Sherrod, supra. In addition, we think it important to remember that under the new decree the mother will have the boys the same amount of time as under the old decree. And we believe it evident that she will still need the authority to deal with the responsibility of the care of the boys, and the evidence amply supports the conclusion that she has the desire to participate in the care and control of her sons.

The trial court also terminated child support, apparently on the basis that the mother now had only visitation rights. See Modling v. Modling, 45 Ala.App. 493, 232 So.2d 673 (Ala.Civ.App.1970). But, again, the mother still is required to support the boys for the same period of time as when she shared custody. And there is no testimony that her need is not as great, nor is there testimony that the father cannot continue to pay $2,880 a year as child support.

We conclude that the evidence fails to support the trial court’s termination of the mother’s custody rights and reverse that aspect of its decree. Moreover, we find no support in the evidence for the order depriving the mother of child support, and that part of the decree is also reversed.

The judgment is affirmed in part, reversed in part, and remanded for entry of judgment consistent with this opinion.

Both parties request an attorney’s fee on appeal. Those requests are denied.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

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


text:
    BRENDLE FIRE EQUIPMENT, INC. v. ELECTRONIC ENGINEERS, INC.
    Civ. 4189.
    Court of Civil Appeals of Alabama.
    July 11, 1984.

      Kenneth T. Hemphill, Montgomery, for appellant.
    James R. Cooper, Jr. of Cooper & Cooper, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a breach of contract case. The actual issue presented for review is whether there was credible evidence before the circuit court concerning the damages occasioned to the plaintiff by reason of the defendant’s breach of the contract.

The parties entered into an agreement which commenced on May 1, 1976, whereby the plaintiff was to furnish to the defendant planned and programmed background music known as Muzak and to provide and service certain necessary electronic equipment therefor. As consideration, the defendant was to pay a monthly fee of $56.80 to the plaintiff. The contract was for an initial period of five years and, under its terms, was automatically renewed for another five year period commencing on May 1, 1981. The plaintiff provided the required services and equipment but, on June 19, 1982, the defendant by a letter to the plaintiff unilaterally terminated the contract. The trial court rendered judgment for the plaintiff. The computation of damages as contained in the judgment was as follows:

“Therefore, it is the opinion of this Court that the damages due the plaintiff for such a breach are to be computed as follows:
“$56.80 for monthly charge, times the months remaining under the contract (42) = $2,383.60
“$2,383.60, minus the savings to plaintiff over the remainder of contract period in mitigation of his damages, $476.72 = $1,906.88 “$1,906.88, plus $925.00 unpaid monthly charges prior to defendant’s notice to plaintiff of breach = $2,833.88 “$2,833.88, plus a reasonable attorney’s fee of $450.00 = $3,283.88, plus court costs.”

The defendant has appealed. We affirm.

Since an ore tenus trial was held before the circuit court, we review the evidence, and reasonable inferences therefrom, to ascertain if credible evidence supported the damages awarded. The following is pertinently revealed as to the issue before us.

The gist of the testimony of the president of the plaintiff corporation was that the amount of their damages for breach of contract would be the total amount due to be paid by the defendant for the remaining forty-two months of the contract, less certain recoverable amounts and fees which the plaintiff would not incur after the termination of the case since the defendant would no longer be a customer. He swore that the figure will provide the approximate amount that the plaintiff expects to be paid. Those excluded amounts and fees were estimated to be twenty percent of the monthly charges, which could have been inferred by the trial court as covering monthly payments by the plaintiff to Muzak Corporation of ten percent of the plaintiff’s monthly billing to customers, a base royalty fee for receiving signals from a satellite, telephone expenses for transmitting the music, and the plaintiff’s payment to a society for the use of their music.

Since the plaintiff services two thousand accounts, it had no breakdown as to each account as to how much of that customer’s monthly payment is profit and how much is expense. Although there was no evidence as to the plaintiffs other operating expenses for rent, transportation, wages and salaries, tools, test equipment and time, the trial court could have reasonable inferred and concluded that those particular expenses of the plaintiff would continue to remain the same with or without the defendant as a customer.

The general rule as to the measure of damages in breach of contract cases is that damages are recoverable which are the natural and proximate consequence of the breach, and it is that sum which would place the injured party in the same condition he would have occupied if the contract had not been breached. Alabama Pattern Jury Instructions — Civil, Charges 10.17 and 11.28. Lost profits are recoverable for the breach of a contract if the profits are a material and direct result of the breach and are capable of ascertainment with reasonable certainty, that is, such certainty as satisfies the mind of a prudent and impartial person. Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 182 So.2d 880 (1966); C. Gamble & D. Corley, Alabama Law of Damages § 17-1, p. 192 (1982). It was decided in United Bonding Insurance Co. v. W.S. Newell, Inc., 285 Ala. 371, 232 So.2d 616 (1969), as follows:

“Damages for breach of contract need not be assessed with mathematical precision. As noted in 22 Am.Jur.2d 44, Damages, § 25:
“ ‘ * * * it is now generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount and that where it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery or prevent a jury decision awarding damages. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof. Under such circumstances, all that can be required is that the evidence — with such certainty as the nature of the particular case may permit — lay a foundation which will enable the trier of the facts to make a fair and reasonable estimate of the amount of damage. The plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss.'
“This general statement is consistent with the law in this state. We think the trial court in this case had before it evidence which furnished a reasonable basis for the computation of the damages suffered by the appellee. We find nothing unreasonable with regard to the manner of computing damages adopted by the court.”

285 Ala. at 380, 232 So.2d at 624. To the same effect see Farmer v. Strother, 423 So.2d 252 (Ala.Civ.App.1982), which also noted that, after an ore tenus nonjury trial, the decision of the trial court as to damages is favored with a presumption of correctness and that the reviewing court will not substitute its judgment for that of the trial court.

The evidence concerning the plaintiffs damages was adequate to permit the award as made. It was sufficient to afford a reasonable basis for estimating the loss suffered by the plaintiff because of the defendant’s breach of contract. The judgment of the trial court is affirmed.

The contract provided for the payment of the attorney’s fees of the plaintiff for the collection of moneys due it by the defendant. We award the appellee the sum of $250 from the appellant for legal services rendered upon this appeal.

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

AFFIRMED.

All the Judges concur.


text:
    Bobby MICHAEL v. Bettie MICHAEL.
    Civ. 4192.
    Court of Civil Appeals of Alabama.
    July 11, 1984.

      Gary W. Alverson and James L. Hunt, Tuscumbia, for appellant.
    Roger H. Bedford, Sr., Russellville, for appellee.
   BRADLEY, Judge.

On January 4, 1983 the parties to this proceeding were divorced by a decree of the Circuit Court of Colbert County. By agreement wife was awarded custody of the parties’ two minor children, child support of $400 per week, and the exclusive possession of the parties’ homeplace until such time as she remarried or the youngest child reached age nineteen. In such event the house was to be sold and the proceeds divided equally between the parties. The husband was required to make the house payments and was required to pay the taxes on the house, which were due on October 1, 1982. Wife was directed to pay the taxes thereafter and to maintain insurance on the house. The court also retained jurisdiction over all property of the parties for twelve months to assure that wife received the child support payments.

Subsequently, wife filed a motion for garnishment alleging husband had fallen behind in the payment of child support, taxes, and house payments. Husband petitioned to modify the decree and to reduce his child support payments.

After an ore tenus hearing the trial court entered an order on March 29, 1983 reducing the amount of child support required to be paid by husband from $400 per week to $250 per month. The court also ordered the parties’ home to be sold and the proceeds to be equally divided between them.

On April 7, 1983 wife filed a motion to revise the March 29 decree. She alleged that a clerical error had been made in that the court fixed the child support payments at $250 per month rather than $250 per week, as had been intended. Rule 60(a), Alabama Rules of Civil Procedure.

A hearing was held and on August 5, 1983 the court entered an order revising and modifying the March 29 judgment to read “$250 per week” child support instead of “$250 per month as child support.” The court also rendered a judgment in favor of wife and against husband in- the amount of $1,200 for back child support for one child. The other child had been living with the father.

On August 18, 1983 husband filed a motion for rehearing. Wife responded by filing a petition for ascertainment of judgment, contempt, and execution. The court heard the matter and on September 7, 1983 entered an order finding husband in contempt for failing to pay child support and finding that the arrearage amounted to $5,000. The court divested husband of all his interest in the marital homeplace, and held that he be incarcerated for his contempt. Husband could purge himself of the contempt by paying the $5,000 arrear-age and the prior $1,200 judgment. The court also ordered husband to pay child support of $400 per month to wife for the child in her custody. After the denial of his posttrial motions, husband appealed to this court.

Husband says first that the trial court erred in revising the March 29, 1983 decree to read $250 per week rather than $250 per month as had been ordered, and in finding that he owed $5,000 in back child support due to the retroactive revision of the March 29, 1983 decree.

“It is clear that trial courts have the necessary power to correct clerical mistakes in judgments so that such judgments say what the record discloses was intended to be said. Rule 60(a), ARCP; Alabama Power Co. v. Cleckler, 295 Ala. 73, 323 So.2d 344. To the ends of justice, some discretion must be allowed the courts in this regard. Gorum v. Samuel, 274 Ala. 690, 151 So.2d 393.”

Mickle v. Mickle, 334 So.2d 900 (Ala.1976). The rule contemplates the type of error associated with mistakes in transcription, alteration, or omission of any papers and documents — a mistake mechanical in nature which does not involve a legal decision or judgment; for example, errors by the clerk, jury foreman, counsel, a party, or the judge. Continental Oil Co. v. Williams, 370 So.2d 953 (Ala.1979); Busby v. Pierson, 272 Ala. 59, 128 So.2d 516 (1961).

It is important to note that the object of a judgment nunc pro tunc or motion under rule 60(a) is to make the judgment or record speak the truth. Ward v. Ullery, 442 So.2d 99 (Ala.Civ.App.1983). It cannot be used to modify or enlarge a judgment nor to make the judgment say something other than what was originally pronounced. Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2854 (1973). Thus, if the mistake involves an exercise of judicial discretion or judgment, any correction is beyond the purview of rule 60(a) and should be properly effected under rule 59(e) or rule 60(b). Continental Oil Co. v. Williams, supra.

Here, the court has stated in its order of August 5 that the March 29 decree should read “$250 per week” and not “$250 per month as child support.” We are convinced that the trial court intended that the modification order of March 29, 1983 be $250 per week rather than $250 per month, because the January 4,1983 decree ordered the husband to pay $400 per week for two children, whereas at the time of the modification order there was only one child living with the wife. But for the transcription error, the $250 per week order would have been in effect since March 29, 1983.

We find that the August 5, 1983 revision of the March 29, 1983 decree is to place in effect that which was intended to apply on March 29, 1983 and that such correction relates back to the March 29, 1983 decree and becomes a part of it. As a result the corrected March 29, 1983 decree is as effectual as if the error or mistake had never been made. See Faddis v. Woodward Iron Co., 276 Ala. 283, 161 So.2d 486 (Ala.1964); 49 C.J.S. Judgments § 263 (1947). Thus, husband was obligated to pay child support of $250 per week from the date of the original reduction, March 29, and the court did not err in assessing the arrearage against husband at $5,000.

Husband has attempted to construe wife’s motion to revise the March 29 decree as a rule 59(e) motion and cites rule 59.1 for the proposition that the motion was overruled by operation of law on July 7, 1983, ninety days after it was filed. Husband’s attempt is misguided, as wife’s motion fell within the purview of 60(a) and not 59(e). Under 60(a) a correction of a clerical error may be made by the court at any time and of its own initiative or on the motion of a party.

Husband also argues that the March 29 decree ordering a sale of the home and a division of the proceeds constituted a final disposition of the parties’ interests in the property and that the court had no authority to subsequently divest him of his interest.

We acknowledge that in contrast to awards of custody, child support, and periodic alimony, the property settlement provisions of a divorce decree become final and cannot be modified after thirty days from the date of the decree. Roberson v. Roberson, 370 So.2d 1008 (Ala.Civ.App.), writ denied, 370 So.2d 1012 (Ala.1979); McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977). However, where the original order as to the present and future use and disposition of the marital home was not a final division of it, but a continuation of ownership subject to conditions imposed on the parties, and no division was due until after the happening of stated events, the refusal or inability of a husband to meet his obligation to pay child support is cause for modification and it is permissible for the court to grant a wife her husband’s interest in the property to satisfy past-due child support. Stutts v. Stutts, 418 So.2d 113 (Ala.Civ.App.1981). Modification and vesting of title become necessary in order to provide a home and support for the wife and the children in her custody. See Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (Ala.Civ.App.1973). We also note that the trial court expressly retained jurisdiction over the property for a period of twelve months from the date of divorce, or until January 4, 1984.

In view of the foregoing the judgment of the trial court is affirmed.

Wife is awarded an attorney’s fee on appeal of $350.

AFFIRMED.

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


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    STATE of Alabama v. Jerry BURKS.
    Civ. 4225.
    Court of Civil Appeals of Alabama.
    July 11, 1984.

      Charles B. Langham, Decatur, for appellant.
    William P. Burgess, Jr., Huntsville, for appellee.
   HOLMES, Judge.

This is a paternity case.

The mother, Marcita J. Turner, swore out a paternity warrant on September 21, 1982, against Jerry Burks, alleging that he was the natural father of her daughter, O'onder-lear Johnson, born August 14, 1974.

The cause was tried in the Juvenile Court of Madison County. The trial court entered a finding of not guilty based upon the statute of limitations defense. The State of Alabama appealed the decision to the Circuit Court of Madison County. After hearing testimony, the circuit judge entered an order stating that although he was “reasonably satisfied that the defendant is the father of the child in question ... this action is barred by the five-year statute of limitations.” From this finding, the State of Alabama appeals.

The statute of limitations applicable to paternity cases, see § 26-12-7, Ala.Code (1975 & 1983 Cum.Supp.), has been the subject of numerous recent appeals before this court. See, e.g., State v. Martin, 437 So.2d 1311 (Ala.Civ.App.1983); Adams v. State, 428 So.2d 117 (Ala.Civ.App.1983); Miller v. State, 403 So.2d 247 (Ala.Civ.App.1981); State v. Hall, 388 So.2d 1004 (Ala.Civ.App.1980); State v. Maddox, 358 So.2d 461 (Ala.Civ.App.1978). At issue in the present case is whether the trial court erred in finding 1) that the paternity statute was not tolled and 2) that the five-year limitations statute applied.

The trial court found no evidence to toll application of the paternity statute of limitations. As our supreme court has stated on numerous occasions, the findings of a trial court, from evidence presented ore tenus, will not be disturbed unless those findings are palpably erroneous and without supporting evidence. See, e.g., Gertz v. Allen, 376 So.2d 695 (Ala.1979); Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976). That the ore tenus rule is applicable to paternity proceedings was reaffirmed in Howells v. Macon, 447 So.2d 814 (Ala.Civ.App.1984).

Although the testimony presented was sharply disputed, the alleged father, Jerry Burks, testified that hé did not visit the mother in the hospital after the child’s birth, that he had never given the mother money for the child’s support, that he had only purchased diapers for the child twice, and that on both occasions the mother provided the money and sent him to the store, that he had never placed the child’s name on any group insurance policy maintained through his employer, that the child has never been in his home, that he has not even seen the child since 1978, that he never purchased the child any clothing, and that he had never bought the child any birthday or Christmas gifts with the exception of one gift he gave the child when he was dating her mother and the child was only one or two years old. The alleged father also testified that the first knowledge he had of the mother’s allegation that he might be the father of the child was when he was served with papers by the Madison County Sheriff’s Department in October of 1982, after the child had reached eight years of age.

As we said in Miller v. State, 403 So.2d 247 (Ala.Civ.App.1981),

“[s]ection 26-12-7 does not specify the amount of. support necessary to toll the statute and it is not essential that the reputed father meet all of the child’s material needs. The determinative question is whether, under the facts of the case, the payments constitute an acknowledgment of paternity. If the payments do constitute such an acknowledgment, the reputed father has supported the child within the meaning of § 26-12-7. See, Reynolds v. Richardson, 62 Tenn.App. 269, 462 S.W.2d 233 (1970).”

Id. at 249. In the present case, the father only admitted giving the child one gift, and this act took place at a time he was dating the child’s mother. Accordingly, applying the ore tenus rule, we cannot upset the trial court’s determination that the statute was not tolled.

The State’s second argument on appeal is not as easily resolved. The State argues that because this case shares the same basic facts as those in State v. Martin, 437 So.2d 1311 (Ala.Civ.App.1983), the court should remand this case for further proceedings as it did Martin. The alleged father, on the other hand, contends that notwithstanding Martin, the trial court correctly applied the five-year statute to find the instant petition barred. The alleged father asks this court to modify its Martin analysis to find that application of the five-year statute would not violate section 95 of the Alabama Constitution of 1901.

Raising a point not raised by either one of the parties in Martin, the alleged father, in his brief, argues the following:

“In the instant case, we urge that application of Section 95 is not mandated. As the Supreme Court has stated on numerous occasions, the legislature has the inherent power to determine the period within which an action may be brought, provided that the time is reasonable. Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972); Plant v. Reid, Inc., 295 [294] Ala. 155, 313 So.2d 518 (1975). Further, the legislature has the power to retroactively alter, extend or curtail an existing limitation although this power can only be exercised so as to apply where the bar was not complete before the enactment of the state. [Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (Ala.1981).]
“In the instant case, the two year statute of limitations as would ordinarily have applied to this action (the child having been born in 1974 at which time that statute was applicable) had been nullified by implication due to the ruling of the United States Supreme Court in Pickett v. Brown [462 U.S. 1], 103 S.Ct. 2199 [76 L.Ed.2d 372] (1983). In that case, the Court invalidated Tennessee’s two year paternity statute because a ‘two-year limitations does not provide illegitimate children with ‘an adequate opportunity to obtain support.’ [Mills v. Habluetze [Habluetzel ], 456 U.S. 91,] 100 [102 S.Ct. 1549, 71 L.Ed.2d 770 (1982)] ...’ Accordingly, as this Court stated in State v. Martin, supra, the Alabama two-year paternity statute must be invalidated. Therefore, the two-year statute did not time bar the State’s action because that statute was invalid under the equal protection clause of the Fourteenth Amendment of the United States Constitution. Accordingly, the State’s argument that the five year statute of limitations cannot be applied as it would otherwise revive a time barred action is simply ill-reasoned. Therefore, the general rule as set forth in Street v. City of Anniston, 381 So.2d 26 (Ala.1980) applies and the statute of limitations in effect at the time the suit was filed, as opposed to the one in effect at the time of the accrual of the cause of action, should apply.”

After having studied this argument and having re-examined the cases cited therein, this court finds that application of the five-year statute would indeed not violate section 95 of the Alabama Constitution. As any time limitation attempted to be imposed by the prior two-year statute was constitutionally ineffective to bar a paternity claim for purposes of the equal protection clause of the fourteenth amendment to the U.S. Constitution, we must likewise find it ineffective for purposes of barring revival of a claim by extension of a time period under section 95. Accordingly, the trial court did not err in relying on Street v. City of Anniston, 381 So.2d 26 (Ala.1980) and applying the five-year statute.

We would note that, although the above reasoning necessarily modifies our Martin analysis, the results of Martin are not changed. As we specifically pointed out in our recital of facts, the child in Martin did not celebrate his fifth birthday until after the action was commenced.

The cause below is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J„ concur.


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    ALABAMA BOARD OF NURSING v. Pearl Lee Lucas HERRICK.
    Civ. 4235.
    Court of Civil Appeals of Alabama.
    July 11, 1984.

      Charles A. Graddick, Atty. Gen., and Martha Gail Ingram and Rivard Melson, Asst. Attys. Gen., for appellant.
    Julian L. MePhillips, Jr. of McPhillips & DeBardelaben, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case concerns the suspension or revocation of the license of a licensed practical nurse (LPN).

The proceedings were instituted in the Alabama Board of Nursing (board) before the effective date of the Alabama Administrative Procedure Act, § 41-22-27(e), Code 1975.

The evidence was heard by a hearing officer whose findings of fact and conclusions of law, except for his recommendation, were adopted verbatim by the board. The hearing officer’s recommendation was that Mrs. Herrick’s license as an LPN be suspended for a period of ninety days. The board ordered that her license be revoked. On appeal, the circuit court adopted the findings of fact of the hearing officer and reversed the order of the board, thereby substituting the hearing officer’s recommendation of a ninety-day suspension of her license. The board appealed.

In Southern Haulers, Inc. v. Alabama Public Service Commission, 331 So.2d 660 (Ala.1976), a hearing examiner of the agency heard all of the evidence which was presented upon an application for the issuance of a certificate of public convenience and necessity. The examiner’s report contained a summary of facts which was adopted by the commission. While the examiner recommended that the application be denied, the commission declined to follow that recommendation and the commission granted a certificate which was effective in six of the eighteen counties sought to be served. In affirming the determination of the commission, the supreme court stated as follows:

“Upon review, a presumption of correctness is ordinarily to be accorded to an order of the APSC. Alabama Power Co. v. APSC, 278 Ala. 597, 179 So.2d 725 (1965) (construing Tit. 48, § 82, Code of Alabama of 1940). However, where the evidence has been heard ore tenus by a hearing examiner and not by the commission members themselves, the presumption of correctness normally accorded to the commission’s order will instead be accorded to the examiner’s findings of fact. APSC v. Perkins, 275 Ala. 1, 151 So.2d 627 (1962).
“However, here the APSC adopted the summary of facts set out in the hearing examiner’s report. That summary of facts carries with it the presumption of correctness which is properly to be accorded to the conclusions of one who heard the evidence ore tenus.
“Admittedly, there is evidence supporting the examiner’s legal conclusions leading to his recommendation that the certificate be denied. However, although the ore tenus rule mandates that a presumption of correctness be accorded a hearing examiner’s findings of fact when he alone has heard the evidence, the ore tenus rule does not also mandate a presumption of correctness in favor of the examiner’s conclusions of law. Furthermore, we are not aware of any instance in which this Court has accorded such a presumption to the examiner’s legal conclusions.”

331 So.2d at: 663 and 664. While that case involved another administrative agency where the examiner’s powers are generally defined by statute, we deem that language to be peculiarly applicable also to the present appeal regarding the'effect of the hearing officer’s recommendation. Accordingly, the recommendation of the hearing officer as to the suspension of Mrs. Herrick’s license for ninety days is not favored with a presumption of correctness.

We find that the order of the board was reasonable and it was not arbitrary. It was reasonably supported by the testimony contained in the lengthy record which we have read. It is also reasonably supported by those facts detailed in the hearing officer’s report which are also included in the order of the board. There was substantial credible evidence that Mrs. Herrick was intoxicated on two occasions while on duty as an LPN in the emergency room of the Air Force hospital where she was employed.

The board, not the hearing officer, has the authority to revoke or suspend any license issued by it upon proof that the licensee was guilty of unprofessional conduct of a nature likely to injure the public in matters pertaining to health. Ala. Code § 34-21-25 (1975). The board was the agency which was authorized by the legislature to suspend or to revoke licenses on that ground and it was a matter within the discretion of the board to determine whether Mrs. Herrick’s license should have been suspended or whether it should have been revoked under the facts as adopted by the board. They had authority to revoke and did not exceed that authority.

However, able and sincere counsel for Mrs. Herrick contends that the hearing officer’s factual findings and, consequently, the board’s findings were wrong, unjust, and fatally tainted because of errors made by the hearing officer in the admission of evidence, largely in allowing some witnesses to give their opinion, over Mrs. Herrick’s objection, that Mrs. Herrick was intoxicated on the two occasions. In any nonjury hearing or trial, an error in the admission of evidence does not authorize a reversal if the decision, order, report or judgment is sustained by other legal evidence. Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.), cert. denied, 354 So.2d 1142 (Ala.1978). The order of an administrative board cannot be reversed because evidence was received which was not admissible under general rules of evidence if the order is sustained by other legal evidence; however, the illegal evidence cannot be considered on appeal in determining if there was substantial evidence, that is legal evidence, to support the board’s order. Little Caesar’s Inc. v. Alabama Alcoholic Beverage Control Board, 386 So.2d 224 (Ala.Civ.App.1979), rev’d on other grounds, 386 So.2d 228 (Ala.1980).

Even if we assume that some of the witnesses’ opinions, which were objected to, were improperly admitted into evidence, a review of the entire evidence reveals that substantial legal evidence would still remain in the case which upholds and supports the overall factual conclusions upon which her license was revoked.

We are limited in the scope of our review of appealable administrative orders for, ordinarily, courts will only pass upon three issues in such appeals: whether the agency acted within its powers conferred upon it by law and the constitution, whether its decision is supported by substantial evidence, and whether the agency’s decision is reasonable and not arbitrary. Little Caesar’s Inc. v. Alabama Alcoholic Beverage Control Board, supra. We have determined each of those matters favorably to the board’s decision. Therefore, the learned circuit court erroneously substituted its opinion for that of the board. The circuit court, without an appeal de novo, in reviewing the action of an administrative agency does not pass upon the wisdom of the decision of the agency nor is it within the purview of courts to pass upon the merits of a particular action of an administrative agency when the agency exercised its discretion in choosing the method of achieving legislative objectives. Nelson & Robbins v. Mund, 273 Ala. 91, 134 So.2d 749 (1961).

The judgment of the trial court is reversed and this cause is remanded to the circuit court where a judgment shall be entered by that court which shall affirm the order of the Alabama Board of Nursing of July 28, 1983, in this matter.

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

REVERSED AND REMANDED.

All the Judges concur.