text:
    JR. FOOD STORES OF WEST FLORIDA, INC. v. Gwenetta L. GARVIN.
    Civ. 4080.
    Court of Civil Appeals of Alabama.
    Feb. 29, 1984.
    A. Neil Hudgens and Michael S. McGlo-thren of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Allen Edward Cook, Andalusia, for appel-lee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employer appeals the trial court’s finding that the employee suffered a permanent total disability. The dispositive issue on appeal is whether there is any evidence to support the finding of permanent total disability. We find evidence supportive of the trial court’s finding and affirm.

Viewing the record under the appropriate standard of review, the following is revealed. The employee, a thirty-year-old female, was employed by Jr. Food Stores of West Florida, Inc., as a clerk in its Florala Tom Thumb Food Store. On about June 17, 1981, the employee injured her back while unloading a grocery truck. The employee was hospitalized for five days, treated with conservative therapy, and released, but she did not return to work. She was hospitalized again in July for five days. In August, she was referred to a Pensacola, Florida, neurosurgeon who detected a ruptured disc. Although he hospitalized the employee, he did not perform surgery at that time, but instead, prescribed muscle relaxers and pain medication. After three days he released the employee; however, she was still unable to return to work.

In February of 1982, the employee was again hospitalized and surgery was performed on the ruptured disc. On her release, the employee was put on medication for both pain and inflammation. She was again hospitalized in April of 1982 for surgery on a chipped disc. After her release, she continued to use prescribed pain relievers, muscle relaxers, and arthritis medication.

After the two surgeries and before trial, the employee was hospitalized two more times, once in October of 1982 and again in August of 1983. She received conservative treatment in October, and in August of 1983, the neurosurgeon detected a disc fragment which was pressing against a nerve and which should be removed. At the time of trial, the employee and her doctor had not yet agreed on a time for the surgery to remove the chip.

The employee testified that, in addition to the hospital admissions outlined above, she made monthly office visits to the neurosurgeon and occasional visits to her original treating physician. At no time since her injury has the employee discontinued the use of prescription drugs.

At trial, the employee testified that she was no longer able to perform the regular duties of the job at the employer’s store, duties such as bending to lift cases of merchandise, carrying and stacking such items, sweeping and mopping, and standing or sitting for extended periods of time. She also testified that since the injury she has been unable to sleep the entire night, that she wears a back brace every day, that she is unable to drive herself to the hospital or doctors’ offices, and that because of restrictions on bending, lifting, and prolonged standing or sitting, she has been unable to perform routine household chores such as washing clothes, cooking, and sweeping.

The only medical expert to testify was Dr. Edward Fletcher Eyster, the neurosurgeon who operated on the employee. In his deposition, Eyster estimated that the employee had suffered a thirty percent permanent impairment to the body as a whole, with limitations on lifting, bending, stooping, and prolonged sitting or standing. He also testified that it was possible that scar tissue from the back surgery might cause discomfort in the future and that because of the injury, the employee would likely have trouble with her back in the future. Eyster testified that the employee walked with a slight limp which resulted from pain.

As indicated, the employer, through able counsel, contends on appeal that the trial court erred in setting the degree of permanent disability at one hundred percent. The employer bases this argument on the fact that the only expert medical testimony estimated the employee’s impairment to the body as a whole at only thirty percent and on the employee’s own testimony that she held a GED high school equivalency certificate, that she had completed several business and clerical programs at the local junior college, and that she could type fifty-six words a minute.

On appeal of a workmen’s compensation case, this court’s inquiry is limited to a determination of whether there is any evidence to support the trial court’s finding. If such evidence is in the record, we must affirm. Goodyear Tire & Rubber Co. v. Corfman, 424 So.2d 1326 (Ala.Civ.App.1982). We may not consider the weight of the evidence; that function is reserved for the trial court. Id.

“Total disability” in the workmen’s compensation context does not necessarily denote absolute helplessness or entire physical disability; instead, it denotes an inability to perform the work of one’s trade or the inability to obtain reasonably gainful employment. Carroll Construction Co. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App.1977). In fixing the degree of disability, the trial court is not bound by estimates of medical experts, even if such testimony is uncontroverted. Id.

After viewing the record, we find that the evidence amply supports the action of the trial court. Since the 1981 injury, the employee has had trouble driving a car and doing even routine household chores, and she has constantly had to rely on the use of prescription drugs, including pain killers. In light of this evidence, restrictions on prolonged sitting, the type of work performed by the employee, and the injury itself, the trial court did not err in finding the employee to be totally disabled. The judgment below is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Alice PERKINS v. G.C. LINGERIE, INC., a Corporation.
    Civ. 3870.
    Court of Civil Appeals of Alabama.
    March 7, 1984.
    James L. Hunt, Tuscumbia, for appellant.
    J. Michael Tanner and J. Michael Broom of Almon, McAlister, Ashe & Baccus, Tus-cumbia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

As to factual matters, our review is limited to a determination of whether there is any evidence to support the trial court’s findings. Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982). Consequently, we have searched the record to ascertain if there was evidence which was supportive of the circuit court’s holding and the following was revealed.

The employee injured her back, knee and hands through an on-the-job accident which occurred on February 8, 1980. She was treated by several physicians and was certified as being able to resume her work on April 21, 1980. Workmen’s compensation was paid to her for the period from February 8 to April 21. Her testimony was that she was not able to work after April 21 because of pain. The employee attempted to work briefly on two different days. For Social Security purposes she is totally disabled at this time because of mental reasons, which are not related to her February 8, 1980 injury or accident. Because of shock treatments for her mental condition, admittedly, her memory has been affected. There was no medical testimony that she suffered any disability which was occasioned by the accident from April 21 until November 24. By her own testimony, her condition varied since she would improve and then relapse. Unemployment compensation was paid to her for the two months prior to August 22, 1980, the last day that she attempted to work for the employer. The employee was hospitalized for eleven days beginning on November 24, 1980, because of her February 8, 1980 accident and she was again certified by her physician as being fit for work as of six weeks from December 12, 1980.

While some medical experts deposed that the employee did not suffer any permanent partial disability, one orthopedic surgeon estimated that she might have a ten to .fifteen percent partial permanent impairment of her upper right extremity unless she had corrective surgery, but he was not able to testify with any specificity that such impairment was occasioned by her February 1980 accident.

The trial court ascertained that the employee received no permanent partial disability but that, in addition to the period from February 8 to April 21, for which she received compensation, she was entitled to receive temporary total disability benefits for an additional period of eight weeks and three days from November 24, 1980. The employee appealed.

“We will comment that temporary total disability may occur at different times during the recuperative period of healing until maximum medical improvement is reached or can be ascertained depending upon the circumstances of each case. See Richter v. Shoppe Plumbing & Heating Co., 257 Minn. 108, 100 N.W.2d 96; Costa v. Cars, Inc., 96 R.I. 396, 192 A.2d 1.”

Defense Ordinance Corporation v. England, 52 Ala.App. 565, 572, 295 So.2d 419, 424 (1974).

In a case such as this where an employee is initially temporarily totally disabled through an accident and then apparently recovers for a period of time, but the disability subsequently re-occurs and becomes evident again, the employee may recover for such a re-occurring disability provided statutory time limits have not expired. Under the same circumstances, an employee may not recover workmen’s compensation during a material intervening time period of nondisability which transpires between periods of temporary total disability. In short, there may be a hiatus between periods of temporary total disability-

Here, a question of fact existed for the trial court. It was factually determined and decided that the employee was paid for temporary total disability from February 9 to April 21, and that she was further entitled to receive temporary total disability compensation for eight weeks and three days commencing on November 24, 1980. By implication, the trial court found that no disability existed from April 21 to November 24. Since the evidence supports those findings of fact by the trial court, we cannot alter its decision. The judgment was not inconsistent.

The trial court did not order the employer to make payment for services rendered to her by two physicians and for certain other medical expenses. There was no error in that regard, since there was no evidence that any of those medical charges were reasonable. Carroll Construction Company, Inc. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App.1977); Mitchell Motor Co. v. Burrow, 37 Ala.App. 222, 66 So.2d 198 (1953). Additionally, there was a. factual dispute as to whether the employee was authorized to seek treatment from those two physicians.

The fact that the trial court accepted the testimony and opinion of one or both of those doctors, but did not order payment for their professional services, is not inconsistent.

We affirm.

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

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Cecil Lee MURPHY v. Margaret Ann MURPHY. Ex parte Cecil Lee MURPHY.
    Civ. 3952, 4029.
    Court of Civil Appeals of Alabama.
    March 7, 1984.

      George K. Elbrecht, Monroeville, for appellant.
    David B. Byrne, Jr. and Richardson B. McKenzie, III of Robison & Belser, Montgomery, for appellee.
   PER CURIAM.

A divorce modification case and a contempt proceeding have been consolidated for purposes of this appeal.

This court for clarity will first dispose of the divorce modification aspect of the consolidated appeal.

I

The parties were divorced in February of 1983. The husband appealed the trial court’s divorce decree to this court on May 25, 1983. On May 31, 1983, the husband, while the appeal was pending, filed in the trial court a petition to modify the February divorce decree.

The trial court on July 15, 1983, entered the following order.

“Upon consideration of the defendant’s Petition for Modification filed on to-wit May 31, 1983 which seeks to review the Final Decree of Divorce entered by this Court on February 11, 1983, the Court finds that on May 25, 1983 the former husband, through counsel, filed a timely Notice of Appeal to the Court of Appeals for the State of Alabama seeking review of this Court’s Order entered February 11, 1983, it is therefore ORDERED, ADJUDGED AND DECREED that this Court is without jurisdiction to proceed to review its Order of February 11, 1983 since that issue is now before the Appellate Courts of this State.”

In October of 1983 this court rendered its opinion on the husband’s appeal. Interested parties may refer to Murphy v. Murphy, 440 So.2d 564 (Ala.Civ.App.1983).

The husband, through able counsel, is now before this court contending the trial court’s order of July 15, 1983, is erroneous. The husband’s contention is that a trial court may hear a subsequent modification petition even though the original decree of divorce is on appeal.

We need not answer the husband’s contention.

Clearly the issue as presented regarding the trial court’s July order is now moot. This is so because of this court’s action in October of 1983. See Gaines v. Malone, 242 Ala. 595, 7 So.2d 263 (1942).

We would, however, comment that in view of the learned and distinguished trial judge’s order of July, our action in October, and the decision on this consolidated appeal, it would appear that the modification is now, if appropriate, ready to proceed to a conclusion.

The wife’s request for an attorney’s fee on this aspect of the consolidated appeal is denied.

II

The trial court, after an ore tenus hearing, found the husband was in contempt of court for failure to pay required child support payments. The husband was incarcerated in the county jail and is before this court by writ of habeas corpus.

The dispositive issue on appeal is whether the husband’s incarceration is inappropriate because of his lack of ability to pay.

This court would note at the outset that, as indicated above, these parties have been before this court on another occasion. We further note that the husband’s financial picture is at best difficult to discern. For a better understanding of the background, we again refer interested parties to our prior decree, Murphy v. Murphy, 440 So.2d 564 (Ala.Civ.App.1983).

The husband in the divorce case was ordered to pay $1,350 per month child support for three minor children.

The evidence at the habeas corpus hearing revealed that the husband is unemployed and has no available present assets. He is making some attempt to seek employment, albeit a minimal effort. All of the husband’s basic necessities are provided by his father.

The husband’s father specifically testified that he would not provide funds for any purpose other than for the husband’s basic necessities, that is food and shelter. The husband’s father specifically, and one might say emphatically, testified that he would not give the husband any money to meet his (the husband’s) child support obligations. The husband’s father would not provide the funds for the husband to purge himself of contempt.

There was further evidence, largely un-controverted, that the husband has not had any funds from any source, other than his father’s generosity, available to him since the divorce decree nor does he have any other available assets. In fact, the husband has petitioned for bankruptcy. And although it has little, if any, bearing on this case, the husband is presently remarried and he has become indebted for his stepson’s school tuition and other costs.

There was evidence that the husband assigned rental income from certain property to his parents; there was no evidence that any money was available from this property. In any event, there is no evidence that the husband had access to any income.

As indicated, the trial court found the husband to be in arrears in his child support payments. This arrearage was correctly determined to be $6,750. The husband was ordered to be incarcerated in the county jail until the arrearage was paid.

The law is settled that imprisonment for contempt should not be imposed where the failure to pay is due to an inability to comply with the order. Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. denied, 287 Ala. 737, 247 So.2d 128 (1971). In the present case, the evidence is that the husband is unable to pay the ar-rearage. He has no job, no apparent assets, and no other apparent source available for payment of the child support amount. As mentioned above, the husband is at the present time in bankruptcy.

Once the accused puts forth evidence that he is unable to pay, then it becomes the duty of the complainant to show beyond a reasonable doubt that the accused is able to pay. Sewell v. Butler, 375 So.2d 800 (Ala.Civ.App.1979). In the present case there is, unfortunately, a lack of evidence to show that the husband is able to purge himself of the contempt citation. Although the husband has enjoyed in the past, and apparently continues to enjoy, considerable financial assistance from his father, the fact remains that the husband’s father apparently will not extend his assistance into this area. It seems from one view of the record that the only way the husband can purge himself of contempt is for his parents to voluntarily pay the necessary amounts, and this they have unequivocally refused to do. This court is not aware of any authority that would hold the husband’s father responsible under a contempt proceeding for the husband’s child support obligations. Therefore, unfortunately, we have no alternative but to hold that the writ of habeas corpus is due to be granted.

We would be remiss in not commenting that we can appreciate the problems confronted by the learned and distinguished trial judge in the resolution of this matter. One might say we can even appreciate the frustration possibly experienced by the trial judge.

However, the fact remains that one cannot be imprisoned where the failure to pay is due to an inability to comply. Sewell v. Butler, 375 So.2d 800 (Ala.Civ.App.1979). As indicated, the evidence is that the husband does not have the financial ability to comply and there is a lack of evidence to the contrary.

We would further comment that at the habeas corpus hearing the trial court again determined that the husband’s modification petition was not in a proper position for resolution. The husband did not “appeal” nor present to this court that determination.

In view of the above, Civ. 3952 is due to be dismissed and Civ. 4029 is reversed and remanded to the trial court with directions to discharge the husband from custody.

The wife requests an attorney’s fee on appeal. That request is hereby denied.

Civ. 3952 — APPEAL DISMISSED.

Civ. 4029 — WRIT GRANTED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Jackie R. LOWERY v. John W. POORE and Alicia K. Poore.
    Civ. 4000.
    Court of Civil Appeals of Alabama.
    March 7, 1984.
    Leon Garmon, Gadsden, for appellant.
    James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   HOLMES, Judge.

This is a breach of contract case. The defendant appeals from a $3,500 judgment entered in favor of the plaintiffs-. We affirm.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is pertinently revealed.

The plaintiffs, John and Alicia Poore, contracted with the defendant to build them a three-bedroom home on their property in Etowah County. The price set in the oral contract was $32,500. The plaintiffs moved into the house in August of 1977, and within two weeks their air conditioner went out. Also, after moving in, the plaintiffs discovered various defects in the house’s construction, e.g., that a shower had been installed backwards, that the builder had left a hole above the kitchen sink when he relocated a light fixture, that two bedroom windows leaked excessively whenever it rained, that one of the windows "popped out” on windy days, and that reinforcing wire in the concrete driveway was exposed. The Poores called on the defendant to correct these defects and he attempted to do so at no cost to the Poores. However, some of his repair attempts did not satisfy the plaintiffs.

Sometime in 1979 or 1981, the plaintiffs noticed that their roof was buckling in several places. A local roofing contractor who examined the roof on the plaintiffs’ request said that the buckling was caused by the builder’s possibly placing the plywood too close together, using the wrong kind of nails, and failing to drive the nails into the rafters. He said to correct the buckling the majority of the roof decking would have to be replaced, at a cost of $3,105.

After hearing the testimony of the plaintiffs’ roofing experts and hearing that the plaintiffs had not been satisfied with the defendant’s attempts to repair the windows and the hole above the sink, the trial court entered judgment in favor of the plaintiffs for $3,500, finding that “plaintiffs and defendant entered into a contract and the defendant breached said contract....”

The defendant, through able counsel, makes two arguments on appeal, neither of which requires reversal. The first is that the plaintiffs failed to state a claim under the doctrine of implied warranty of habitability. The second argument is that the plaintiffs’ allegations based upon misrepresentation of fact are barred by the statute of limitations.

The defendant’s first argument is without merit in this instance because the warranty the defendant deals with was not at issue in the instant case. An implied warranty of habitability generally arises when someone purchases a new home from a builder/vendor. The plaintiffs did not purchase a ready-built home; instead, they contracted with the defendant to build a home on their own land according to plans the plaintiffs supplied. The implied warranty the plaintiffs rely upon here is a different one; plaintiffs based their case upon the defendant’s implied duty to perform the construction work with the degree of skill and workmanship possessed by those of ordinary skill in the construction trade. See C.P. Robbins & Associates v. Stevens, 53 Ala.App. 432, 301 So.2d 196 (1974). Accordingly, the defendant’s argument based upon the inappropriateness of an implied warranty of habitability must be rejected.

The defendant’s second argument, that the plaintiffs’ fraud count is barred by the one-year fraud limitations statute found at § 6-2-3, Ala.Code (1975), provides no grounds for reversal, because the $3,500 judgment for the plaintiffs is fully supportable on the contract count. In fact, in its ruling the court specifically relied upon count one, stating that it found a breach of contract. Therefore, the fact that count two might be insufficient to support the judgment is irrelevant. See generally Clikas v. Steele, 287 Ala. 270, 251 So.2d 575 (1971). Cf Pan American Fire & Casualty Co. v. DeKalb-Cherokee Counties Gas District, 289 Ala. 206, 266 So.2d 763 (1972) (question on appeal is whether judgment is supportable on any ground).

We further specifically note that the evidence, as indicated, supports the judgment of the trial court, and therefore the judgment is due to be affirmed.

AFFIRMED.

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


text:
    Joan GEORGE v. Harold C. GEORGE.
    Civ. 4011.
    Court of Civil Appeals of Alabama.
    March 7, 1984.

      Marion E. Wynne, Jr. of Bailey, Wynne & Slade, Fairhope, and George L. Simons of Simons & Pearce, Mobile, for appellant.
    Richard C. Lacey, Fairhope, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

After a contested ore tenus trial, the circuit court divorced the parties for incompatibility, divided their property, and awarded alimony in gross to the wife of $750 each month for twenty-four months. The wife received the marital residence and the ten acres of land upon which the home is situated, a business known as The Wine Merchant which she has actively managed since it was established, $5,000 in lieu of an automobile, her stock portfolio, her IRA account, certain bank accounts, and the vast majority of the personal property. The major items awarded to the husband consisted of ten acres of land, two automobiles, certain accounts which he owned, a few items of personal property, and his medical professional corporation.

The wife, through her very able counsel, raises only one issue upon her appeal, the failure of the trial court to award periodic alimony to her. In our review of this matter, we must accept as being true all of that evidence which lends support to the trial court’s judgment. We have studied the entire record in accordance with all the attendant presumptions and the following is consequently revealed.

Both parties had been previously married when they married each other in 1972. No children resulted from their union; however, by his first marriage the husband had four children who are now either adults or are approaching their majority.

The wife is forty-two years of age, a college graduate, and was a registered dietician, but that registration or license has expired. She resigned her Air Force Captain’s commission on her own accord in 1974. In order to obtain a current license as a dietician, it is required that she resume her education for approximately eighteen months and, thereafter, successfully pass an examination. The wife is uncertain as to her future plans as to whether to attempt to resume her profession as a dietician or to operate the wine business or to attempt other endeavors. Neither has she decided upon the locality where she will settle.

The husband is an orthopedic surgeon and practiced that medical specialty in the Air Force when the parties married. His 1982 income, before taxes, from his profession was $74,000 and he received military retirement pay as a lieutenant colonel of $23,000. His monthly expenses, including debt payments, closely approximate his income.

In 1970, the wife invested $1,500 in stock and the account grew through professional management to $74,347 in 1982. Her net capital gains amounted to $25,500 in 1980 and to over $20,000 in 1982. The husband paid a total of $15,800 for state and federal income taxes due on her stock dividends and net gains for the years 1980 through 1982. None of her proceeds from her stock portfolio have ever been expended for the benefit of the family. Her ownership of the stock was a very sensitive matter with the wife, who disfavored discussing it with her husband. He was not familiar with its value.

The three-year-old wine business which was awarded to the wife suffered a loss of $10,000 in 1980, but losses decreased to $3,000 in 1982. The book value of The Wine Merchant was $55,000 in 1982. Since that business was established, the husband has borrowed and invested in it over $40,-000.

The homeplace received by the wife was valued at $103,000 by the husband. It is encumbered by a $36,000 mortgage for which the wife is responsible.

The husband’s professional corporation was valued at $90,000 and his ten acres of land at about $50,000. He was required by the divorce judgment to be responsible for all debts and losses (which amounted to a substantial sum) except the house mortgage and general debts of The Wine Merchant.

Since their marriage, the wife has been vehement against the husband’s payment of his children’s traveling expenses from the state of Washington so that they might visit with him. His regular contributions to the college expenses of various of the children have also been a sensitive area between the parties. The husband and wife had no marital relations during the last two and a half years, the fault therefor, admittedly, being mutual.

Since the ease was orally tried before the circuit court, it is presumed that the final judgment was factually correct if it was supported by credible evidence; and since the matter of an award of periodic alimony falls within the trial court’s judicial discretion and is not mandatory, the decision in this case by the trial court not to order the husband to pay periodic alimony is clothed with a favorable presumption and cannot be disturbed on appeal except where such discretion was plainly, obviously, distinctly, palpably abused. Rothchild v. Rothchild, 434 So.2d 794 (Ala.Civ.App. 1983); Mack v. Mack, 402 So.2d 1038 (Ala.Civ.App.1981); Coffelt v. Coffelt, 390 So.2d 652 (Ala.App.1980). Since the wife was the spouse who requested alimony, her rather successful and substantial stock portfolio and its net dividends, profits, and gains could properly be considered by the trial court in determining whether she should receive a periodic alimony award. Lewis v. Lewis, 416 So.2d 755 (Ala.Civ.App.1982).

We have studiously read the entire record and have seriously contemplated and deliberated over it. We find that the trial court’s decision was supported by the evidence. We reached that determination after giving due credence to the property which the wife was awarded, to her income from her stock investments, to the possible potential of her retail wine business, to the fact that she will receive alimony in gross of $750 each month for twenty-four months [ostensibly for the purpose of allowing her to return to school or to permit her a period of time for adjustment], to the duration of their childless marriage, to the wife’s personal uncertainty as to what field of endeavor she desires to pursue, to the age, education and experience of the wife, to the no-fault ground for the divorce, and to all other material factors. To determine whether the trial court abused its discretion, we must look to all of the aspects of the divorce judgment and not merely to the lack of any periodic alimony award to the wife. The following language from Mack v. Mack, 402 So.2d 1038 (Ala.Civ.App.1981), is equally applicable to the present appeal:

“There exists no palpable abuse of trial court discretion when the collective minds of an appellate court are uncertain and waver in balance as to whether the award of alimony and/or the division of property by the trial court was fair and equitable according to the nature of the case after a due consideration of all of the appropriate factors. Here, we are left in that state of uncertainty and it is not now easily perceptible, plain or obvious that the trial court was in error in rendering the latest judgment. Therefore, since we are not authorized to substitute our judgment for that of the trial court, we are required to affirm. There was no palpable abuse of discretion by the trial court.”

Id. at 1039.

We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Randolph E. NEAL, Jr. v. REDSTONE FEDERAL CREDIT UNION.
    Civ. 4091.
    Court of Civil Appeals of Alabama.
    March 7, 1984.

      Randolph E. Neal, Jr., pro se.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a summary judgment case.

Redstone Federal Credit Union, the plaintiff, sued Mr. Neal upon his credit card account and, under count two, on a promissory note executed by the defendant to the plaintiff. The defendant promptly filed his answer which simply denied the material allegations of the plaintiff’s complaint. From this modest situation, what at first appeared to be only a jurisprudential molehill has been elevated through motions and procedural steps into a pleading Mount Everest necessitating a clerk’s record of 122 pages.

Of the issues which the defendant attempted to raise, we respond only to those controversies which are sufficiently preserved, presented and argued by him with adequate clarity and with the required citation of authorities so as to merit our consideration.

The defendant filed a motion under Rule 42(b) of the Alabama Rules of Civil Procedure, for a separate trial as to each of the counts of the plaintiff’s complaint. The motion was denied by the circuit court. A trial court possesses a broad discretion to either order or deny separate trials of claims in furtherance of convenience, or to avoid prejudice or when separate trials will economically expedite matters. Robinson v. Computer Servicenters, Inc., 360 So.2d 299 (Ala.1978); Chiriaco v. Jacks, 421 So.2d 1272 (Ala.Civ.App.1982). We find nothing which indicates any abuse of discretion by the trial court in overruling the defendant’s motion.

The Mini-Code requires that a creditor shall not bring a civil action on any debt and that no judgment shall be entered thereon until the creditor files a particular affidavit. § 5-19-11, Code of Alabama 1975. Six months after the defendant had filed his original answer, but almost three years before the entry of the final judgment, the trial court permitted the plaintiff to file the required affidavit, and that ruling is presented as an issue on appeal. The following from Welch v. G.F.C. Credit Corporation, 336 So.2d 1346 (Ala.Civ.App.1976), is determinative of that problem:

“The creditor is prohibited from bringing suit without filing the required affidavit. If he should disregard the prohibition, the court is prohibited from entering judgment thereon until such affidavit is filed. In effect, the penalty upon the creditor for suing without the affidavit is that the court may not enter judgment until it is filed. We consider the prohibition upon the court to be a limitation of its authority to exercise jurisdiction if not waived affirmatively. However, a judgment rendered without such affidavit, but with jurisdiction of the parties is not void but voidable. In this case, the filing of an answer may be considered as a waiver.”

336 So.2d at 1348. No rule of law prohibited the trial court from allowing the credit union to comply with the Mini-Code by filing the necessary affidavit. That conformity with that statute came almost three years prior to the rendition of the summary judgment. Further, its filing was waived by the defendant’s original answer.

By motion, the plaintiff sought a summary judgment as to the plaintiff’s claims and also upon the defendant’s counterclaims. In support thereof, the plaintiff presented several affidavits which were adequate on their face to uphold the granting of the requested summary judgment. The defendant did not present any counteraffidav-its but relied entirely upon his multiple unverified pleadings. The trial court granted the requested summary judgment with regard to the plaintiff’s claims for a total amount of $6,094 and costs. The defendant’s counterclaims were dismissed.

When only the plaintiff’s affidavits are considered, they show an absence of a genuine issue of a material fact and the defendant could not thereafter rest upon mere allegations or denials as averred in his multitude of pleadings. Under those circumstances he was obligated and required to present proof of facts through some authorized means which at least presented a scintilla of evidence in support of his factual position so as to establish that a question of fact existed. Since the defendant wholly failed to do this, the trial court had no alternative but to grant the summary judgment in favor of the plaintiff. Butler v. Michigan Mutual Insurance Company, 402 So.2d 949 (Ala.1981); Rule 56(e), A.R.Civ.P.

However, the defendant contends that the monetary claims of the plaintiff were usurious upon their face as a matter of law, since they were made or incurred in May 1979, and provided for twelve percent (12%) interest, which exceeded the then Alabama authorized annual rate of interest of eight percent (8%). Consequently, the defendant argues that, as a matter of law, the summary judgment should not have been granted against him as to the plaintiff’s claims.

The plaintiff is a federal credit union. The Federal Credit Union Act contains express provisions for the highest permissible interest rates which may be charged by federal credit unions. At the time of the transactions here involved, those federal credit union yearly maximum rates were established at twelve percent (12%). 12 U.S.C.A. § 1757(5)(A)(vi) (Supp.1978).

Appellate courts in other states have been presented with similar arguments. For example, the Texas statute prohibited lenders from charging more than ten percent (10%) interest. The federal act then authorized federal credit unions to make loans bearing interest up to twelve percent (12%) per year. It was held as follows by the Court of Civil Appeals of Texas:

“Under the Federal Credit Union Act, federal credit unions have the authority to make loans at a rate of interest not exceeding one percent per month on the unpaid balance inclusive of all service charges, which is equivalent to twelve percent simple annual interest. 12 U.S. C.A. § 1757(5)(A)(vi) (Supp.1978). Even though we have not found a Texas case upon the point, there is ample authority from other jurisdictions that state usury laws are not applicable to federal credit unions. See Van Pelt v. P. & L. Federal Credit Union, 39 Tenn.App. 363, 282 S.W.2d 794 (1955); Christian v. Atlanta Army Depot Federal Credit Union, 140 Ga.App. 277, 231 S.E.2d 7 (1976); McAnally v. Ideal Federal Credit Union, 428 P.2d 322 (Okl.1967).
“Pursuant solely to the authority of the National Credit Union Act, a federal credit union can make a loan bearing interest at twelve percent per annum notwithstanding the ten percent rate.... ”

Brown v. Austin Area Teachers Federal Credit Union, 588 S.W.2d 629 (Tex.Civ.App.1979).

Since the federal act and the Alabama statutes conflicted, the doctrine of preemption here applies, and the federal statute prevails as to those interest rates which may be lawfully charged by federal credit unions in this state. Ex parte Davis, 401 So.2d 52 (Ala.1981). Accordingly, the annual interest of twelve percent (12%), as charged by the plaintiff in its transactions with the defendant, was permissible and was not usurious.

The trial court properly granted the plaintiffs motion for a summary judgment.

We affirm.

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

AFFIRMED.

All the Judges concur..


text:
    Charles Rodney SHADDIX v. Joanne SHADDIX.
    Civ. 3989.
    Court of Civil Appeals of Alabama.
    March 14, 1984.
    John A. Henig, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    Robert D. Reynolds, Montgomery, for appellee.
   HOLMES, Judge.

This is a contempt of court case for failure to pay child support.

The parties to this appeal were divorced in December 1981. The wife was awarded custody of the two minor children and the husband was required to pay $100 per week as child support for both children. The trial court further ordered that the child support be paid through the domestic relations division of the circuit court.

In May 1983, the wife sought to have the husband held in contempt for failing to pay the child support as required. The husband denied that any arrearage existed.

After an ore terms hearing, the trial court found the husband to be in contempt and set the arrearage at $3,875.40. Thereafter, the husband filed a motion for reconsideration, which was denied by the trial court. The husband now appeals and we must reverse in part.

The husband, through able counsel, contends on appeal that the trial court erred in determining the amount of the arrearage and in denying the motion to reconsider. The husband also argues that he is due a credit to be applied against any unpaid child support payments for a seven-month period during which he had, by agreement of the parties, custody of one of the children.

The record before this court discloses the following pertinent facts. We note that the record before this court is a 10(d), Alabama Rules of Appellate Procedure, record and is somewhat lacking in detail.

The wife initiated proceedings to collect past due child support payments. It was the wife’s contention that the husband had not made child support payments for certain periods of time and that, consequently, he was over $3,000 in arrears. There is evidence that the records of the domestic relations division indicate the amount of the arrearage is $3,600. Nevertheless, there is undisputed evidence, as revealed by the 10(d) record, that the husband paid as child support $1,000 directly to the wife on three separate occasions, August, October, and December 1982, a total of $3,000. At the time of the motion to reconsider, the husband had paid an additional $500 for child support to the domestic relations division. The wife gave the husband receipts on two of the above occasions noting on the receipt that the $1,000 each time was for child support and “child support and Christmas.” The husband also gave the eldest minor child $1,600 in November 1982.

The wife testified that she did not apply any of the $3,000 towards child support and that she did not inform the domestic relations division of the circuit court about the $3,000.

The husband also had custody of the youngest minor child by agreement of the parties for a seven-month period during which he provided for all of the child’s expenses.

After considering the evidence, the trial court determined that the husband was in arrears $3,875.40. The husband filed a motion to reconsider the judgment, accompanied by an affidavit. The trial court denied the motion. The husband, thereafter, as indicated, made a statement of the evidence and proceedings pursuant to Rule 10(d), A.R.A.P., which was approved by the trial court and is now the record on appeal.

Clearly, the uncontroverted evidence contained in the record before this court shows that the husband at least paid $3,000 directly to the wife and $500 to the domestic relations division of the court pri- or to the motion to reconsider. At least part, if not all, of this $3,500 was intended to cover child support payments.

Thus, in view of the above, we find that the trial court was in error in determining that the husband was in contempt in the amount of $3,875.40 and, therefore, the trial court erred in its determination of the amount of the arrearage. We can reach no other conclusion from the uncontroverted evidence before us.

In regard to the husband’s contention that he is due a credit because one of the children resided with him, we find that the trial court did not err in rejecting that argument.

The award or denial of a credit under these circumstances is within the sound discretion of the trial court and such determination will not be reversed absent a showing of abuse. Marsh v. Marsh, 426 So.2d 847 (Ala.Civ.App.1983); Kinsey v. Kinsey, 425 So.2d 483 (Ala.Civ.App.1983). In the case at bar, we find no abuse of discretion in the trial court’s ruling that the husband was not entitled to a credit.

There is little evidence concerning this aspect of the case in the 10(d) record before this court. Furthermore, the terms of the divorce decree designated a lump sum for the two minor children and there is no evidence to indicate how that sum should be allocated.

We have consistently held under similar facts that a father may not unilaterally reduce child support payments where the decree does not so provide. Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982). Therefore, due to the manner of payment, the lack of evidence, and the discretion accorded the trial court, we find no error in refusing to give the husband a credit.

In view of the above, the trial court’s finding of contempt is correct. However, the amount of arrearage is, as seen from the above, incorrect.

The finding of contempt is affirmed. The amount of the arrearage is due to be reversed and remanded for a proper determination of the arrearage.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

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


text:
    Sandra Faye Gover LEATHERS v. Stephen Carroll GOVER.
    Civ. 4023.
    Court of Civil Appeals of Alabama.
    March 14, 1984.
    William V. Neville, Jr., Eufaula, for appellant.
    Jimmy S. Calton, Eufaula, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal follows the overruling of Mrs. Leathers’s motion to set aside a certain judgment as being void.

The facts, in chronological order, which are essential for a determination of this matter are as follows:

February 1, 1980. The parties were divorced. Thereby, their separation agreement was ratified and approved by the circuit court. Custody of the four minor children of the parties was granted to the mother, and the father was ordered to pay child support in an amount which was dependent upon certain contingencies.

November 1981. The parties by their separate pleadings sought relief, clarification, and modification as to the child support provisions of the divorce judgment.

July 12, 1982. The trial court entered a judgment following an ore terms trial. It altered and made more precise some of the child support provisions of the divorce judgment.

July 15, 1982. The father filed an application for a rehearing under rule 59(a) of the Alabama Rules of Civil Procedure.

October 22, 1982. The trial court partially granted the father’s petition for a rehearing and amended the child support provisions of the 1980 and July 1982 judgments.

June 16, 1983. The mother filed her rule 60(b)(4) motion that the October 22, 1982, judgment be set aside as being void. She contended that the judgment was invalid since the father’s application for a rehearing had been overruled by rule 59.1 after the expiration of ninety days from July 15, 1982, and, as a result thereof, the trial court was without power to render the October 22, 1982, judgment. The circuit court overruled her motion and the mother appealed.

The denial of a rule 60(b) motion is a final judgment and it is appealable. Terry v. Frisbee, 404 So.2d 345 (Ala.Civ.App.), cert. denied, 404 So.2d, 347 (Ala.1981); Welch v. G.F.C. Credit Corp., 336 So.2d 1346 (Ala.Civ.App.1976). While the October 22, 1982, judgment might well have been just, fair, and equitable, only the correctness of the overruling of the 60(b) motion by the trial court is now before this court and may be here considered. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978); Boles v. Hooper & McDonald, Inc., 424 So.2d 634 (Ala.Civ.App.1982).

The wife’s motion of June 16, 1983, was clearly a rule 60(b)(4) motion to set aside an allegedly void judgment. With regard to such a motion, a trial court does not exercise the normal judicial discretion which it ordinarily possesses and exercises in ruling upon other rule 60(b) motions since a judgment must be set aside if it is void and a judgment must be allowed to stand if it is valid. Accordingly, the primary question before this court is whether the October 22, 1982, judgment of the trial court was void. Wonder v. Southbound Records, Inc., 364 So.2d 1173 (Ala.1978); Graham v. University Credit Union, 411 So.2d 144 (Ala.Civ.App.1982).

As to those provisions which are here pertinent, rule 59.1 states, in substance, that a trial court’s failure to dispose of any pending post-trial motion within ninety days from its filing shall constitute a denial of the motion as of the expiration of that ninety-day period. The father’s application for a rehearing was filed on July 15, 1982. The ninetieth day of the penden-cy of the motion fell on October 13, 1982, and, consequently, the father’s application for a rehearing was denied by operation of rule 59.1 at the end of that ninetieth day. After October 13, 1982, the trial court could not render a valid judgment which either granted or denied that motion, and the October 22, 1982, judgment as entered by the honored, respected, and learned trial court was void, a nullity, and had no force or effect. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975); Nelson v. Leonard, 423 So.2d 254 (Ala.Civ.App.1982); Crenshaw v. Crenshaw, 405 So.2d 38 (Ala.Civ.App.1981); Carnes v. Carnes, 365 So.2d 981 (Ala.Civ.App.1978), cert. denied, 365 So.2d 985 (Ala.1979).

When a motion is denied by rule 59.1, it is overruled for all purposes by operation of law and not by the trial court. The 59.1 overruling of motions is not a matter that leaves any remainder within the breast of the trial court.

After a motion is overruled by operation of the rule, the trial court, under normal circumstances, may not set aside, alter, or amend that automatic overruling either upon its own initiative under rule 59(d) or because of the filing of a rule 59(e) motion seeking such relief.

Here, the October 22, 1982, ruling of the trial court was void because of a lack of jurisdiction over the subject matter and was not waivable by the parties. Rule 12(h)(3), A.R.C.P.

Since the trial court should have granted the wife’s rule 60(b)(4) motion, we are required to reverse and remand this case.

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.


author: WRIGHT, Presiding Judge.

text:
    John ROSS, Jr. v. Louise ROSS.
    Civ. 4025.
    Court of Civil Appeals of Alabama.
    March 14, 1984.

      Vanzetta Penn Durant, Montgomery, for appellant.
    J. Michael Manasco, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

John Ross (husband) and Louise Ross (wife) were married for twenty-seven years. Their children are all adults.

Husband filed a complaint for divorce alleging grounds of incompatibility and irretrievable breakdown, mental cruelty and physical abuse. After oral hearing the court issued a decree of divorce with the following provisions. Wife was awarded all household property and a life estate in the marital residence with the responsibility for making the mortgage payments on it. At her death the property reverts to husband or his estate or his heirs in fee. Wife was awarded periodic alimony of $600 per month commencing in August 1983 until July 1984, thereafter increasing to $800 per month. Additionally, wife was granted rental property which rents for $175 per month and is valued at $14,000, two other lots valued at $1,500, and four cemetery lots.

Each party was awarded ownership of their individual automobiles and the life insurance policies which each party owned. The parties were directed to deliver to each other small items of personal property. Husband was made exclusively responsible for wife’s medical bills incurred during their marriage, less any insurance reimbursement for the same. Such bills total more than $5,000. The cost of the proceedings, including costs of depositions and an attorney’s fee of $1,500, was taxed against husband, and he was ordered to pay past due utility bills for June and July of 1983. Husband was awarded his savings accounts. Husband appeals.

The dispositive issue on appeal is whether the trial court abused its discretion in its division of property, award of alimony or award of attorney’s fees and costs. In considering this issue we “view the judgment of the trial court with a presumption of correctness to determine if it is so unsupported by the evidence as to be arbitrary, unjust or capricious and an abuse of discretion.” Cooper v. Cooper, 382 So.2d 569, 570 (Ala.Civ.App.1980), citing Miller v. Miller, 361 So.2d 577 (Ala.Civ. App.1978). Each case must be determined upon its own relevant facts in view of what is reasonable and fair to both parties.

It is not required that a property division be equal. Rather, the law requires only that the division be equitable in light of the evidence. What is equitable rests within the sound discretion of the trial court, Miller v. Miller, supra. After reviewing the record we cannot say that the property division reached by the trial court, nor the award of attorney’s fees is so inequitable as to constitute an abuse of discretion.

With respect to alimony, the need of wife for assistance and husband’s ability to pay a reasonable sum is apparent. Wife has had serious surgery and has not worked but approximately two years out of their twenty-seven-year marriage and is currently not employed due to health problems. Husband is retired from service in the United States Navy and is currently employed by the United States Agriculture Department. He presently has a total monthly net income from retirement pay and employment of approximately $2,400. His job is secure and he expects to receive a promotion in the next year.

Wife is a licensed practical nurse who has, in the past, earned approximately five dollars an hour. She quit a recent job at Baptist Hospital but has worked for some private patients since then. She testified that her doctor advised her to avoid full-time employment.

Husband contends that alimony awarded is based upon the unreasonably high claim of need by his wife and that the court failed to consider the fault of wife in causing the breakup of their marriage.

The fault of a party may be considered in the division of property, Cooper v. Cooper, supra, and if such conduct “contributed substantially to the breakdown of the marriage ... the court may properly consider such conduct as limiting the wife’s claim to alimony.” Tyler v. Tyler, 52 Ala. App. 430-32, 293 So.2d 856, 858 (1974).

The record indicates that wife shot at husband and sought to use voodoo against him. Husband was not injured, for he had fortuitously loaded wife’s gun with blanks. There was no indication that the voodoo was effective either. There was evidence that husband was not without fault.

The trial judge heard the testimony and observed the witnesses. Though his judgment may not be what we might have rendered, the alimony awarded is no more than a third of husband’s present income and such alimony is deductible for income tax purposes. Smith’s Estate v. Commissioner, 208 F.2d 349 (3rd Cir.1953); 26 U.S.C. §§ 71, 215 (1976). We are unable to hold the judgment in any part to be so clearly unjust as to be an abuse of discretion. Therefore, we must affirm.

The request of the wife for attorney’s fee on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Rose Patterson HOWELLS v. Michael Greg MACON.
    Civ. 4036.
    Court of Civil Appeals of Alabama.
    March 14, 1984.
    Hugh E. Holladay of Hereford, Blair, Holladay & Martin, Pell City, for appellant.
    Donald R. Hamlin, Pell City, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is a paternity case.

The appellant appeals from an order entered, after an ore tenus hearing, which found appellee not guilty in the paternity action filed against him.

The record reveals that the child was born on July 2, 1977, and that the paternity action was filed against the reputed father on April 18, 1983.

At the time of the child’s birth, the statute of limitations governing paternity prosecutions was two years. Ala.Code § 26-12-7 (1975). The statute was expanded to five years effective May 21, 1981. Under our rulings in Adams v. State, 428 So.2d 117 (Ala.Civ.App.1982), and State v. Martin, 437 So.2d 1311 (Ala.Civ.App.1983), the two-year statute is applicable to the instant action as the child reached her second birthday well in advance of May 21, 1981. Because the appellant has not urged that we give retroactive effect to our constitutionality decision in Martin, we have no occasion to reach that issue.

Since the limitation period of § 26-12-7 had expired before this prosecution was initiated, the burden fell upon the appellant to show that the reputed father either legally acknowledged paternity or supported the child so as to toll the running of the statute of limitations. State v. Hall, 388 So.2d 1004 (Ala.Civ.App.1980).

The evidence in support of this issue is in conflict. The appellant testified that, after the child was two months old and until she was about six months old, she and the child spent weekends with the appellee where he bought diapers and food for the child; that he brought diapers to the hospital at time of birth. Appellee denied that they spent weekends with him as he lived with his parents until his marriage in 1980; he denied paternity to the Department of Pensions and Security in September 1977. The appellant further testified that from 1977 to 1983 the appellee supported the child and helped her when he could; that he gave her Christmas presents and kept the child; the appellee denied supporting the child as he was not working and could not help or support; appellee denied keeping the child except on occasion. The appellee has never admitted paternity.

The appellant had the burden to reasonably satisfy the trial court that any payments or support constitute an acknowl-edgement of paternity to toll the statute. Miller v. State, 403 So.2d 247 (Ala.Civ.App.1981). The trial court found the defendant not guilty. The findings of a trial court, from evidence presented ore tenus, may not be disturbed unless the findings are palpably erroneous and without supporting evidence. Gertz v. Allen, 376 So.2d 695 (Ala.1979); Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976).

Under the facts presented, the judgment of the trial court is not palpably wrong or without supporting evidence. Therefore, the judgment of the trial court is due to be 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 § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge. TYSON, Judge,

text:
    Debra BRACEWELL, alias v. STATE.
    4 Div. 981.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.

      Donald F. Colquett, Opp, and J. Fletcher Jones, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

The instant appeal is from Debra Brace-well’s second trial for the capital murder of Rex Carnley by shooting him with a pistol during the commission of a robbery. Her original conviction and sentence of death were eventually overturned on the authority of Beck v. State, 396 So.2d 645 (Ala.1980). See, Bracewell v. State, 401 So.2d 119 (Ala.Cr.App.), rev’d, 401 So.2d 123 (Ala.1979), on remand, 401 So.2d 124 (Ala.Cr.App.), cert. denied, 401 So.2d 130 (Ala.), vacated, 449 U.S. 915, 101 S.Ct. 312, 66 L.Ed.2d 143 (1980), after remandment, 401 So.2d 130 (Ala.Cr.App.), cert. denied, 401 So.2d 130 (Ala.1981).

As a result of her second trial for this offense, the appellant, Debra Bracewell, was found guilty as charged and, after proper sentencing procedures were followed, she was sentenced to life imprisonment without parole.

Several issues are presented for our consideration, but the sufficiency of the State’s evidence is not challenged on this appeal.

The facts and circumstances surrounding the murder of Rex Carnley are essentially the same as stated in our opinions pertaining to appellant’s first trial. Bracewell v. State, 401 So.2d 119, supra.

Rex Carnley was last seen alive by his wife, Marnie, at 8:00 p.m. on August 14, 1977. She left him locked inside their grocery store-gas station, where he had been spending the night because of recent robberies and burglaries in that area. Carnley had, on his person, a wallet which contained approximately $2,000, a roll of money totalling $1,500, and a pistol.

The next morning, at approximately 6:00 a.m., a customer found Carnley’s body inside the store where Carnley had been murdered with a .22 caliber, pearl-handled pistol, which had been left beside the body. Carnley had been shot three times in the back of the head and five more times in the face. He was pronounced dead at the scene.

A police investigation immediately following the discovery of Carnley’s body revealed that Carnley’s wallet and its contents had been taken, but the money roll and the pistol in his front pocket had not. Several other amounts of money, which, including the roll in Carnley’s front pocket, totalled $4,500, were found inside the store where they had been deposited or hidden by the Carnleys.

The murder weapon was a gun that Carnley kept in a cashdrawer underneath the cash register counter. Carnley’s body was discovered in front of the counter. In addition to the murder weapon and the pistol in Carnley’s front pocket, a third pistol was found, undisturbed, underneath the counter where it was kept.

There was no evidence of a struggle pri- or to the shooting.

Dr. Richard Roper testified that, although the cause of death was massive bleeding resulting from the multiple head wounds, any one of the three wounds to the back of the head could have been fatal.

The critical issue at trial was the identification of the appellant. Police technicians found no physical evidence at the scene to connect the appellant with this crime. Although there was evidence that the appellant was being investigated in connection with other crimes that had taken place in Covington County at about the same time (and that she was being prosecuted in at least one case), the record does not reveal the specific evidence or information that led to her investigation for this offense. Sheriff Eli Harrell testified that the appellant had been arrested in Coffee County on charges unrelated to this case and had been transferred to Covington County via a prisoner exchange. She was detained in the Covington County jail on these unrelated charges, the nature of which Sheriff Harrell could not recall at trial, from November 4, 1977, until she confessed to and was charged with Carnley’s murder. Sheriff Harrell could not remember the exact number of times that the appellant was questioned about Carnley’s murder before she confessed, but he estimated that he questioned her on six occasions. He verified that before questioning, and, specifically, before she gave her oral and written confessions on January 19, 1978, and January 23, 1978, respectively, he carefully read and explained to the appellant her Miranda rights. He stated that she indicated that she understood those rights and signed the appropriate waiver forms. He also testified that no one, in his presence or to his knowledge, offered the appellant any reward or hope of reward or threatened her to induce her statements. Several other officers confirmed the fact that the appellant’s statements were taken in compliance with Miranda.

The oral statement given on January 19, was essentially the same as the written statement given on January 23,1978, which read as follows

“Statement of Debra Bracewell, W/Female, DOB: 4-17-60. Date 23 January 1978, 3:15 p.m. After being read her rights and signing a waiver of those rights, the following statement was given by Debra Bracewell in the presence of Alabama Investigator, Marlon Brewer and Deputy Sheriff, Linda Cassady: ‘Charles and I left granny’s about 10:30 on Sunday night, 14 August 1977. We went to Eddie Robinson’s house near Samson. Eddie was there, his wife and children, Buddy Moore and his wife, Mabel was there too. We stayed about 1 and V2 hours. We left there and went to Charles’ sister, Maydean, in the apartments in Samson. No one answered the door. We sat in the yard and talked a few minutes. We talked about trying to find someone to rob in Samson. We couldn’t think of anyone. We went down to the river and stayed there a little while. We left and started to Elba, going through Opp. We started up Highway 84 going to Elba. We passed Rex Carnley’s store and Charles started turning around. I asked him why. He went on past the store and parked and then he told me that he wanted us to go in there and rob Rex Carnley. He wanted me to go behind the counter on the right side and get a gun out of the drawer and shoot Rex. We turned around and came back to the store. Charles got out his gun and put it in his belt. We went to the door and Rex said, “Charles, come on in.” We went in. I went behind the counter like Charles told me to and got the gun. Charles was holding a gun on Rex. Rex told him to quit playing games and Charles said he was not playing a game — he wanted the money. I was, D.B., sitting down on top of the stool and then I stood up on the rungs and shot Rex in the back of the head (At this point, Debra showed that she held the gun approximately 18" from the back of Rex’s head and shot him in the back of the head). Then Charles took the gun. I ran out and he was shooting Rex. Then Charles came out with a billfold in his hand and his gun. He got in the car and we went to granny’s and Charles told me I had some blood on my dress and I changed clothes. Charles changed clothes too. After we changed clothes, I went to the kitchen while Charles counted the money. He said it was $1,200.00. He didn’t give me any of the money. We left and went to the River near Samson. Charles parked the car before we got under the trestle. He got out and walked toward the woods with the billfold in his hand. He was gone about 5-10 minutes. I stayed in the car. I asked where was the billfold and he said it was gone — not to worry about it. We left and went to Charles’ sister’s house in Samson. We saw her just before she went to work. Then we went to the sewing factory and filled out work applications. Charles saw his sister again at the factory and borrowed $2.00. I asked him why he borrowed the money and he said to make her think we didn’t have any money. We left there and went back to Eddie Robinson’s. Eddie’s kids were there and Mabel and Ondas Paul. We waited there until Eddie and Inez came in from work. Charles told Eddie that he had to get out of the State because the law would be looking for him for killing Rex Carnley. We left that night for Florida.’ The above is a true and correct statement that I have given on my own free will without threats or promise. Signed, Debra Bracewell.”

This statement was consistent with the scene of the crime, the time of discovery of the body, the nature of the wounds inflicted, the normal hiding place of the murder weapon, and the fact that the only property taken was Carnley’s wallet and its contents. A subsequent search of the area where the appellant said her husband had changed his clothes and had discovered the stolen wallet was unsuccessful.

In defense, the appellant vigorously challenged the voluntariness of her confession. She testified that on November 4, 1977, she was arrested at her home by the Covington County officials and that they did not explain the charges against her. She testified that she was repeatedly interrogated, in excess of fifteen times, by a number of different officials and that she eventually confessed only to make them leave her alone.

Evidence was introduced that the appellant was of inferior intelligencé and that her education, only through part of the seventh grade, was primarily in a special education curriculum.

The appellant presented one alibi witness, who testified that, on the morning of August 15, 1977, at about 7:00 a.m., the appellant filled out, in his presence, an application for employment at the factory where he worked.

The evidence, including appellant’s incul-patory statements, was put to the jury, which found the appellant guilty as charged. In the sentencing phase hearings which followed, the trial court agreed with the jury that the mitigating circumstances outweighed the only aggravating circumstance, a murder during the commission of a robbery, and, consequently, sentenced the appellant to life without parole.'

On the authority of Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982), and cases cited therein, we find that appellant’s constitutional challenge of the Alabama Supreme Court’s holdings in Beck v. State, 396 So.2d 645 (Ala.1981), is without merit.

An exclusionary rule in effect when the instant offense was committed provided that a voluntary confession made by a “child” was inadmissible “unless advised by counsel.” Ala.Code § 12-15-67 (1975). The definition of “child” in § 12-15-1(3), Code of Alabama (1975), states, in pertinent part, that:

“a. Such term, before January 1, 19.78, means an individual under the age of 17
“b. Such term, after December 31, 1977, means an individual under the age of 18 ....”

The appellant contends that this two-part definition of “child” in § 12-15-1(3) violates the equal protection clause of the Fourteenth Amendment (U.S. Const, amend. XIV).

She contends, generally, that § 12-15-1(3) invidiously discriminated against those persons who were 17 years old between January 16, 1977 (the effective date of the statute) and January 1,1978, the date when the definition of child included 17 year olds.

We need not reach the merits of this constitutional question because it was not preserved in the trial court, but rather was raised for the first time on appeal. Steele v. State, 289 Ala. 186, 266 So.2d 746 (1972); Barclay v. State, 368 So.2d 579 (Ala.Cr. App.), cert. denied, 368 So.2d 581 (Ala.1979); Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982).

The appellant further contends that the trial court erred in denying her “Motion for Change of Venue.” Although grounds are set out in appellant’s Motion, no argument is made on appeal in support of this contention. Nevertheless, we have reviewed the grounds set out in appellant’s Motion and the evidence presented at trial in support thereof, and have concluded that the trial court did not err in denying the motion for a change of venue.

The newspaper articles presented in support of appellant’s motion were factual and objective and did not appeal for mob action or attempt to incite passion or prejudice against this appellant. Mathis v. State, 52 Ala.App. 668, 296 So.2d 755 (1973), cert. denied, 292 Ala. 732, 296 So.2d 764 (1974); McLaren v. State, 353 So.2d 24 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977); Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983). As is generally the ease with venue questions on appeal, we defer to the sound discretion of the trial court, there being no “clear or gross abuse of discretion” on its part. Burnett v. State, 350 So.2d 718 (Ala.Cr.App.1977); Robinson v. State, supra, and numerous cases cited therein.

In conjunction with her contention concerning the change of venue motion, the appellant asserts that the trial court erred in refusing her voir dire questions, nos. 7-16, 20-24, 26 and 27, requested as inquiries for qualifying the jury venire.

In selecting a jury for a particular case, “the nature, variety, and extent of the questions that should be asked prospective jurors” must be left largely within the sound discretion of the trial court. Peoples v. State, 375 So.2d 561 (Ala.Cr.App.1979). In other words, the scope of the voir dire examination of the jury venire is within the broad discretion of the trial court. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1974), cert. denied, 293 Ala. 746, 309 So.2d 850 (1975); Witherspoon v. State, 356 So.2d 743 (Ala.Cr.App.1978); Ervin v. State, 399 So.2d 894 (Ala.Cr.App.), cert. denied, 399 So.2d 899 (Ala.1981). It is highly proper for the trial court to conduct the voir dire examination. Witherspoon v. State, supra, and cases cited therein. When the trial court’s examination is thorough and extensive, its refusal of every question requested by defense counsel might be proper. Holmes v. State, 342 So.2d 28 (Ala.Cr.App.), cert. denied, 342 So.2d 36 (Ala.1977); Ervin v. State, supra.

We have carefully examined each refused question and the trial court’s extensive voir dire examination. The majority of the questions requested by the appellant were in the nature of jury instructions as to legal principles applicable to the case. These and the other requested inquiries were properly refused in this instance in light of the trial court’s extensive examination of the jury venire and the trial court’s thorough oral charge to the jury at the close of the evidence. There was no error.

The appellant made an oral confession on January 19, 1978, and a written confession on January 23, 1978 (as noted above). These confessions were essentially identical. Both were introduced as evidence for the jury’s consideration. Before either statement was introduced, however, pursuant to appellant’s motions to suppress, voir dire hearings were held outside the presence of the jury, so that the trial court could determine whether or not each statement was admissible as “voluntarily and knowingly” made.

Appellant’s argument is that the trial court did not properly apply the “totality of the circumstances” standard [See, Garrett v. State, 369 So.2d 833 (Ala.1979), reversing, 369 So.2d 827 (Ala.Cr.App.1978); and cases cited therein], and, therefore, erred in determining that her confessions were voluntarily, knowingly, and intelligently given. We disagree.

During the suppression hearing for the oral statement, the appellant testified that she was taken into custody by Sheriff Harrell late at night on November 4, 1977, and taken from her home to the Covington County Jail. She testified that she was questioned about Carnley’s murder that night and no less than fifteen times in all from November 4 until she confessed on January 19, 1978. She stated that she was interrogated by a number of people at different times and sometimes was questioned more than once on the same day. She eventually confessed “to make them leave [her] alone,” but only after they started making up stories about how the murder was committed. She did admit, however, that on several occasions Sheriff Harrell had told her that she had a right to an attorney, and that her interrogators never made any promises to her. The appellant was seventeen years old when she confessed to this murder, and had a seventh grade education, the latter part of which was completed in a “special education” curriculum. The appellant offered no other evidence during the suppression hearing.

Sheriff Harrell testified that he was not present when the appellant was taken into custody, but that she was arrested on unrelated charges in Coffee County and transported by Coffee County authorities through a prisoner exchange to the Coving-ton County Jail early in the evening on November 4, 1977. He read and explained to the appellant her Miranda rights before questioning her on November 4, and again several times thereafter. He testified that the appellant was not abused, threatened or promised any reward for her confession. He specifically repeated the Miranda warnings on January 19, 1978, just before the appellant confessed to Carnley’s murder, and the appellant said that she understood them. Although she was offered one several times, she never requested an attorney. In Sheriff Harrell’s opinion, the appellant’s oral statement was voluntarily made.

On cross-examination Sheriff Harrell stated that the appellant was not prompted in any way, and was not asked leading or suggestive questions. He knew that she was seventeen years old at the time. The conversation during which she confessed was initiated by the appellant, after she had failed a polygraph examination. Sheriff Harrell had questioned her about five or six times prior to the date of her confession.

Based on this voir dire testimony, the trial court ruled that the appellant’s oral confession was voluntarily and intelligently made and was, therefore, admissible.

The trial court accepted the voir dire testimony from the hearing on the motion to suppress the oral confession as evidence on the motion to suppress the written statement made on January 23, 1978. In addition, Marlon Brewer, an investigator for the Alabama Bureau of Investigations, testified that, before her written statement was transcribed, the appellant was advised of her Miranda rights, and that she responded that she understood them. He stated that she was not threatened or abused and was not offered any reward or hope of reward as an inducement for her confession. After the statement was transcribed, the appellant read it and verified that it was the truth.

On cross-examination, Brewer stated that he knew the appellant was seventeen years old when the written confession was taken, but that he had no idea that she was a former “special education” student or that she “was of low mentality.” He stated that she seemed to handle herself well during his interrogations and never gave any indication that she had a low intellect.

Barbara Blackwell, an employee with the Covington County Sheriff’s Office, transcribed the appellant’s written confession on January 23, 1978. She witnessed the appellant sign the written statement. Blackwell explained the statement to the appellant, who read it, indicated that she understood it, and voluntarily signed it.

The appellant further testified that she signed the statement “because they wouldn’t leave me alone.” She stated that she never asked for an attorney because she did not know she could have one. She stated that she read and signed the statement but did not understand all of it.

There was evidence that prior to her incarceration on November 4, 1977, the appellant had been arrested for another offense unrelated to Carnley’s murder. She had been appointed an attorney, who represented her in this unrelated matter, which was, apparently, resolved in December, 1977. During the period between November 4, 1977, and her confessions in January, 1978, although she was often advised of her right to contact an attorney to represent her in connection with the Carnley murder investigation, she never contacted or asked anyone else to contact this previously appointed attorney or any other attorney.

Based on all the voir dire testimony from both suppression hearings, the trial court admitted into evidence the appellant’s written confession.

The thrust of appellant’s argument is that, although she occasionally indicated to the contrary, she never totally understood her right to an attorney, the ramifications of answering questions relating to Carn-ley’s murder, or the entire written confession that she signed. She argues on appeal that the evidence supports her contention that she lacked the intelligence to fully comprehend what was happening.

As noted above, there was ample evidence presented on voir dire (including appellant’s own testimony) for .the trial court to make a voluntariness determination. In light of appellant’s evidence to the contrary, the trial court determined that her confessions were voluntarily and knowingly made. Such a determination, supported, as here, by the evidence, was within the sound discretion of the trial court. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); Jackson v. State, 375 So.2d 1271 (Ala.Cr. App.), cert. denied, 375 So.2d 1274 (Ala.1979), and cases therein cited; Hobbs v. State, 401 So.2d 276 (Ala.Cr.App.1981); Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982), and cases therein cited.

Additional evidence on the voluntariness issue, presented after the confessions had been properly admitted by the trial court, went to the jury for their consideration of the weight and credibility of appellant’s statements. Elrod v. State, supra; Hobbs v. State, supra, and cases therein cited. Such additional evidence had no effect upon the trial court’s voluntariness determination.

Appellant insists, in the alternative, that her oral and written confessions were inadmissible as evidence because they were the “fruits” of an illegal arrest. The appellant made several attempts to introduce evidence to show that, when the two confessions were made, she was being detained, illegally, in the Covington County Jail, under no warrant of arrest, and that she had been thus incarcerated since November 4, 1977. She stated, on voir dire examination, that on November 4 she was escorted by Sheriff Harrell from her home to the Covington County Jail, where she remained until she confessed to the Carn-ley murder.

Sheriff Eli Harrell testified, to the contrary, that the appellant had been arrested on charges unrelated to the instant offense, but that he could not recall what those charges were. He stated that the appellant had been arrested in Coffee County by Coffee County officials and had been transferred to Covington County via a prisoner exchange process. He offered to go get his records to establish the unrelated charges on which she was arrested.

The appellant argues, on appeal, that, since the prosecution never showed what these unrelated charges were, it did not prove that she was under lawful arrest. Consequently, the appellant contends that her confessions should have been suppressed as the “fruits” of an illegal arrest.

We need not reach the merits of this contention because this issue was not properly preserved for our review. The appellant did not object, at trial, to the admissibility of her confessions on the “fruit of an illegal arrest” ground and she did not state this as a ground in her motions to suppress or her motion for a new trial. For aught that appears, she did not invoke a ruling, and the trial court never ruled, on this issue. Because this issue was raised for the first time on appeal, it is not properly before us and will not be considered herein. See, Robinson v. State, 38 Ala.App. 315, 82 So.2d 815 (1955); Hargrove v. State, 344 So.2d 823 (Ala.Cr.App.), cert. denied, 344 So.2d 826 (Ala.1977); Waters v. State, 360 So.2d 358 (Ala.Cr.App.), cert. denied, 360 So.2d 367 (Ala.1978); Cook v. State, 384 So.2d 1158 (Ala.Cr.App.), cert. denied, 384 So.2d 1161 (Ala.1980).

We must note, however, that Sheriff Harrell testified that the appellant was under lawful detention, and that the argument to the contrary is based solely on speculation from Sheriff Harrell’s inability to recall the specific charges against her.

The only evidence introduced at trial that directly connected the appellant with the murder of Rex Carnley was the appellant’s oral and written confessions. Consequently, the appellant focused her efforts at trial on convincing the jury that her confessions were erroneous. Evidence that the appellant had an I.Q. of 62, that she was in the educatable mentally retarded range, and that she had only a seventh or eighth grade education, the last part of which was completed in “special education” courses, was presented to support appellant’s theory that she lacked the intelligence to understand the nature and consequences of her confession and that her confessions were not her statements, but rather “stories” of her involvement in the murder suggested to her by her interrogators, which she eventually confirmed so that they would stop bothering her. Although a significant amount of evidence was admitted on this issue of the weight and credibility of her confessions, the appellant argues that other relevant and material evidence was erroneously excluded from the jury by the trial court’s sustention of several objections by the prosecution.

John Sharpless, a guidance counsel- or at Elba High School, testified, at length, with reference to certain intelligence tests that he administered to the appellant in October 1975, a year and a half before she “dropped out” of school on March 25, 1977. He answered numerous questions concerning the details of a test which indicated that the appellant had an average I.Q. of 62. He stated that the appellant was edu-catable and within the range required for special education classes. He answered questions from individual jurors and a copy of his test results was admitted into evidence.

Sharpless also testified that he noticed that the appellant had a speech impediment. His recommendation, based on the test results, was that the appellant be placed in the Educatable Mentally Retarded (EMR) class. His entire psychological report was marked as an exhibit for the jury.

Sharpless also reported the last grades he had on record for the appellant. These grades for the fourth grading period (Spring, 1977) in the ninth grade special education curriculum were as follows: Language Arts—90; Home Ec. 90; Math—71; Occupations—80; Home Ec.—88; and P.E. —70. He stated that these were based on a scale of 100 with 90-100 representing an A. He explained, however, that these grades were not comparable to similar scores in the “regular” curriculum.

The appellant complains that the trial court erred in sustaining the State’s objections to questions calling for Sharpless’ general conclusions about her personality, the validity of her confession, and her susceptibility to being “led” without comprehending what she was being led to do.

Because the State’s objections to these questions were not specific and the trial court did not explain its rulings, it is not clear, on appeal, upon what ground or grounds these objections were sustained. Nevertheless, we are convinced that the trial court’s actions do not constitute reversible error.

The appellant argues that Sharpless had been qualified as an expert and, because he had explained his association with the appellant and the results of her intelligence tests, he should have been allowed to answer these questions pertaining to the credibility of appellant’s confession.

All three questions, noted above, called for opinions or conclusions from Sharpless, an experienced guidance counselor. Whether or not Sharpless was qualified to state his opinion, in each instance, was a matter within the sound discretion of the trial court, whose rulings will not be disturbed absent a clear abuse of that discretion. Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538 (1972); Carroll v. State, 370 So.2d 749, 760 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979); Jolly v. State, 395 So.2d 1135, 1143 (Ala.Cr.App.1981). There is no clear abuse in this case.

Sharpless was asked to give his opinion about the appellant’s personality before any predicate was established. The trial court correctly sustained the State’s objection and the question was not asked again.

The other two questions solicited, in different words, Sharpless’ opinion of the credibility of appellant’s confession. The appellant insists that Sharpless was qualified, as an expert, to offer such conclusions. “The criterion for admission of expert testimony is that the witness, by study, practice, experience or observation as to the particular subject, has acquired a knowledge beyond that of an ordinary witness.” Meade v. State, 390 So.2d 685 (Ala. Cr.App.), cert. denied, 390 So.2d 693 (Ala.1980), and cases cited therein. White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). “Where there are questions which inexperienced jurors are not likely to decide correctly, there is a necessity to admit opinions and conclusions of those specially skilled or experienced in the particular field; that is, experts who can give better opinions on a given state of facts.” White v. State, supra. But even experts are not allowed to state conclusions that invade the province of the jury, conclusions based upon conflicting testimony that could be understood and resolved by the jury. See White v. State, supra; Flint v. State, 370 So.2d 332 (Ala.Cr.App.1979).

For aught that appears in the record, the conclusions solicited from Sharpless would have been based upon his intelligence testing of appellant, the results of which were already before the jury. Sharpless was undoubtedly qualified to interpret his test results and arguably qualified to comment, generally, upon the validity of a confession by this appellant. However, the trial court would have been correct in determining that the credibility of appellant’s confession was a question for the jury, which could adequately make a determination without Sharpless’, arguably, competent opinion. In other words, the jury was competent to determine the weight and credibility of appellant’s confession in light of the facts and reports supplied by Sharpless. Sharpless’ opinions on the subject were not necessary and their exclusions from the jury were not harmful to the appellant. A.R.A.P. 45.

The appellant attempted to introduce her school records from Fleeta Junior High School where she was participating in a special education curriculum through part of the seventh grade. The State objected and the trial court sustained the objection. The appellant claims that the trial court’s action was error.

There was no prejudice to the appellant in refusing these Fleeta records. A.R.A.P. 45. Apparently, the Fleeta records covered the appellant’s education from the second grade through part of the seventh grade in late 1974 or early 1975. Consequently, the latest of these records was for appellant’s educational history three years before her confessions were made. Even if there had been information in these records that might have been otherwise admissible (the appellant did not make any showing of what the records contained), it was, arguably, too remote to be relevant. See, Gullatt v. State, 409 So.2d 466, 473 (Ala.Cr. App.1982). The appellant, apparently, intended to use the Fleeta School records to bolster other proof that she was an unintelligent person. Ample evidence of her low intellect, including the intelligence testing done in October 1975 and her Elba High School records through the Spring, 1977, was already before the jury.

The appellant further cites, as reversible error; the trial court’s sustention of the State’s objections to several questions propounded to Dr. Kenneth Warren. She argues, generally, on appeal that Dr. Warren, a professional clinical pyschologist, should have been permitted to answer all of her questions. We have carefully reviewed each question and have determined that the objections to each were properly sustained.

Dr. Warren was properly qualified as an expert witness. He testified that he performed thorough psychological examinations of the appellant in 1978, just after she entered the Alabama prison system, and again in 1981, the week before the instant trial. Without discussing the nature of the tests that he administered to the appellant or the specific results thereof, he was asked a series of questions that appeared to solicit his opinion as to the voluntariness and credibility of appellant’s confessions. In general, these questions were material only in reference to the weight and credibility of the confessions, an issue still requiring a jury determination.

Initially, Dr. Warren was asked, and the State and trial court responded, as follows

“Q. [By defense attorney] And can you tell us what, if anything, your findings as to her intellectual functions and what did they indicate with respect to every day life?
“MR. LANIER: Your Honor, I’m going to have to object to—
“THE COURT: I would sustain the objection.
“MR. JONES: And we except.
“Q. Did your examination and testing of Debra give you any indication of her personality?
“MR. LANIER: Your Honor, I am also going to have to object to that question.
“THE COURT: Sustain the objection.
“MR. JONES: Except.”

Because no grounds were stated with the State’s objections there was no indication of the basis for the trial court’s sustention of these objections. There are at least two grounds, however, which justify the trial court’s rulings. As propounded, these questions were confusing, indefinite and vague, and failed to disclose to the trial court the materiality of the expected evidence. See, Goodson v. State, 29 Ala.App. 389, 197 So. 69 (1940); Scott v. State, 45 Ala.App. 149, 227 So.2d 436 (1969); Jones v. State, 52 Ala.App. 184, 290 So.2d 251 (1974); Raley v. State, 351 So.2d 642 (Ala. Cr.App.), cert. denied, 351 So.2d 646 (Ala.1977). Furthermore, “if the expert bases his opinion on his personal knowledge, he must first testify to the facts within his own knowledge upon which the opinion is based.” White v. State, 294 Ala. 265, 314 So.2d 857 (1975); see also, Colvin v. State, 32 Ala.App. 142, 144, 22 So.2d 544 (expert should first state the facts, then his opinion or conclusions), reversed on other grounds, 247 Ala. 55, 22 So.2d 548.(1945).

Rather than asking more specific questions to establish the materiality of the expected evidence or to establish the facts upon which Dr. Warren would subsequently base his opinions and conclusions, the appellant propounded to Dr. Warren a series of hypothetical questions soliciting similar opinions as to the voluntariness of her confessions. These questions were also followed by objections sustained by the trial court. “In general, the proper form of a hypothetical question asked of an expert, when [allegedly] based on evidence in the case, rests largely on the sound discretion of the trial court, and that court will not be put in error unless the discretion is abused.” White v. State, supra. The trial court’s actions in this instance were not improper because these hypothetical questions were arguably vague and confusing (cases herein cited) or were based on facts that were not supported by the evidence before the jury. White v. State, supra.

The appellant presented evidence to support the theory that the cause of death and the condition of the body were inconsistent with her confession. This evidence went to the jury for its consideration in determining the weight and credibility of her confession. Dr. Walker Sorrell, a forensic and medical pathologist, was thoroughly questioned by the appellant. He had not examined the victim’s body, but he had read and studied the reports of Dr. Richard Roper and Mr. Richard Carter, both of whom were directly involved in the instant investigation. In effect, he testified that each wound to the back of the victim’s head could have caused immediate death, which would have stopped the victim’s heart, that the wounds to the back of the head would not have caused a great loss of blood, that one of the facial wounds severed an artery, and that a gun fired within three feet of its target will leave powder burns on the target. Apparently, the appellant theorized that the great loss of blood from the victim indicated that he was shot first in the face and that an absence of powder burns on the back of the victim’s head indicated that the shots to the back of the head were fired from a distance of more than three feet. The appellant’s confession, to the contrary, stated that she fired first to the back of the victim’s head from a distance of approximately eighteen inches.

The appellant argues on appeal that the effect of Dr. Sorrell’s testimony was clouded by the trial court’s actions in sustaining State objections to certain hypothetical questions. We have reviewed these questions and the trial court’s actions and have found no errors prejudicial to the appellant. For aught that appears, Dr. Sorrell was thoroughly examined after the hypothetical questions were refused and the evidence solicited by the hypothetical questions was admitted through answers to subsequent questions, which were not objectionable to the State or the trial court. Any error in this instance was harmless. A.R.A.P. 45.

Finally, the appellant contends that the trial court erred in refusing to charge the jury on the lesser included offenses.

To the contrary, a lesser included offense instruction may be properly refused where, as here, there is no evidence to support the lesser offense. Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982); and cases therein cited.

In summary, we have carefully reviewed the issues presented on appeal and have determined that there were no errors prejudicial to this appellant. Of critical concern was the voluntariness of appellant’s confessions. The trial court held hearings outside the presence of the jury and, in light of appellant’s testimony to the contrary, determined that her confessions were admissible. Even though the appellant was only seventeen years old and was not very intelligent, the evidence presented during the voluntariness hearings was sufficient to support the trial court’s rulings thereon. Additional evidence was presented to the jury to discredit these confessions. The jury’s determination, in light of this additional evidence, that the appellant was guilty as charged was supported by the evidence. The appellant’s age, intelligence, and background were obviously factors which the jury and the trial court considered in recommending that the death penalty not be imposed and that the appellant be sentenced, instead, to life without parole.

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction, and sentence rendered thereon, is due to be affirmed.

AFFIRMED.

All the Judges concur, except TYSON, J., who dissents with an opinion.

TYSON, Judge,

dissenting.

For the reasons stated in my dissent on the original appeal of this cause, Bracewell v. State, 401 So.2d 126-129 (Ala.Cr.App.), rev'd, 401 So.2d 123 (Ala.1979), on remand, 401 So.2d 124 (Ala.Cr.App.), cert. denied, 401 So.2d 130 (Ala.), vacated, 449 U.S. 915, 101 S.Ct. 312, 66 L.Ed.2d 143 (1980), after remandment, 401 So.2d 130 (Ala.Cr.App.), cert. denied, 401 So.2d 130 (Ala.1981), I most respectfully dissent from the majority opinion in this cause.