author: TORBERT, Chief Justice. EMBRY, Justice

text:
    Kathryn McCAIN v. P.A. PARTNERS LIMITED, d/b/a Best Western Inn.
    82-575.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Charles E. Floyd, Phenix City, for appellant.

      J. Pelham Ferrell of Ferrell, Davenport & McKoon, Phenix City, for appellee.
   TORBERT, Chief Justice.

Kathryn McCain appeals from a judgment entered after a directed verdict was given in behalf of her employer, P.A. Partners Limited, d/b/a Best Western Inn (Best Western), in a suit for conversion. The subject of the alleged conversion is a payroll check due McCain, appellant, and withheld by Best Western, appellee. Ap-pellee essentially contended that appellant had not met her burden of proof of the elements of a cause of action for conversion.

The pertinent facts, as presented by appellant are: Kathryn McCain was an employee of Best Western in Phenix City between October of 1981 and May of 1982. She worked at the front desk near a safety deposit box to which she, and several other employees, had access.

One hundred ten dollars ($110) was stolen from the safety deposit box. A police investigation into the theft ensued and McCain came under investigation as one of three employees named by the manager as persons who could possibly have stolen the money.

McCain voluntarily went to the local police station, made a statement, and allowed her fingerprints to be taken. Several days later, she was informed she could not return to work without submitting to a polygraph examination; she agreed to take it.

A1 Garcia administered the polygraph examination and concluded McCain “revealed signs of deception” when questioned concerning the missing money. McCain’s employment with Best Western was terminated when Best Western received the results of the polygraph test from Garcia.

Having a payroll check due her from Best Western for the pay period ending immediately prior to the time of the discovery of the missing money, McCain went to pick up her check on April 22,1982. She was then told by the general manager that $110 of her wages would be withheld pending the final results of the police investigation. At that time, McCain saw her payroll check and her time card in the possession of Best Western. (A copy of the check in question was admitted as an exhibit. That check was dated April 22, 1982, payable to McCain in the amount of $159.22.) In lieu of her payroll check the general manager attempted to give McCain a check for $49; McCain refused to accept it.

When the police had concluded their investigation, Bob Roach, a partner in the defendant business, wrote McCain to inform her the investigation was closed and that no further action would be taken concerning the matter. He enclosed, with that letter, a check in the amount of $110.

Meanwhile, McCain had made written demand for her payroll check. Best Western immediately refused her demand. McCain subsequently filed her complaint in this action, alleging wrongful conversion of her payroll check and claiming punitive damages in the sum of $100,000.

For appellee's actions to constitute conversion, “... there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse.” Ott v. Fox, 362 So.2d 836, 839 (Ala.1978). The gist of the action is the wrongful exercise of dominion over property in exclusion or defiance of a plaintiffs rights, when the plaintiff has a general or special title to the property and possession or the immediate right of possession. A plaintiff cannot recover in an action of trover unless at the time of the conversion, he or she had a general or special right to the property and possession or an immediate right of possession. Tarrant American Savings Bank v. Smokeless Fuel Co., 233 Ala. 507, 510, 172 So. 603, 605 (1937).

Plaintiff in the present case did not have a general or special property right or an immediate right of possession in the payroll check at the time appellee withheld it. “The rule that the ‘delivery’ of an instrument is indispensable to its effectiveness is one of the most ancient and basic in commercial law.” City National Bank of Miami, N.A. v. Wernick, 368 So.2d 934, 936 (Fla.Dist.Ct.App.1979). The authors of American Jurisprudence, Second Edition, state:

“As a general rule, a negotiable instrument, like any other written instrument, has no legal inception or valid existence as such until it has been delivered in accordance with the purpose and intention of the parties. Until that is done, it is a nullity and not the subject of ownership. The payee acquires no rights in the instrument prior to delivery.”

11 Am.Jur.2d Bills and Notes § 270, -at 298 (1963) (footnotes omitted). Checks remain the property of the drawer unless and until there is a valid delivery and acceptance by the payee. Reese v. State, 192 Miss. 147, 5 So.2d 236, 237 (1941); cf. Cannon v. Dillehay, 17 Ala.App. 294, 84 So. 549 (1919) (a negotiable promissory note has no legal inception or valid existence until it has been delivered).

Appellee never delivered the payroll check to appellant, and, therefore, appellant did not acquire a general or special property right in the check. The check remained the property of appellee, and appellant only had an incorporeal right to a certain sum or to the collection of a debt. An obligation to pay or a debt is ordinarily enforceable by assumpsit or a contract action, but such will not support an action for conversion. Knox v. Moskins Stores, Inc., 241 Ala. 346, 348, 2 So.2d 449, 450 (1941).

Appellant, as a matter of law, could not maintain a suit for conversion against ap-pellee for withholding the payroll check, and the trial court acted properly in granting appellee’s motion for a directed verdict. The judgment below is affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.

JONES, EMBRY and ADAMS, JJ., dissent.

EMBRY, Justice

(dissenting).

I respectfully dissent.

The majority has, I believe, fallen prey to circuitous reasoning. Refusal to deliver, after demand, is the cornerstone of a conversion action. Yet, the majority has here held that Best Western’s refusal to deliver McCain’s payroll check bars her action for conversion.

I think the appropriate and equitable solution involves recognition that, when there is a refusal to deliver with the intention of preventing exercise of intangible rights in a document, intangible rights merge with the document to provide it with a legal inception and a valid existence. See Restatement of Torts (Second) § 242 (1964).

JONES and ADAMS, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    M.B. MORGAN, et al. v. Dock TATE.
    82-762.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      C. Stan Davis, Andalusia, for appellants.
    Abner Powell, III and M. Ashley McKa-than of Powell & Powell, Andalusia, for appellee.
   ALMON, Justice.

This is an action for the reformation of a deed or the imposition of a constructive trust. The trial court found that the plaintiff grantors were basing their action solely on a mistake of law and granted summary judgment for defendant, heir of the grantee.

G.P. Morgan died intestate on January 30, 1955, survived by his widow, Allie Morgan, and their six children: Walter H. Morgan, Inez Morgan, and the plaintiffs M.B. Morgan, Birdie Morgan Pierce, Aubrey J. Morgan, and Loy Ray Morgan. On July 12, 1955, M.B., Birdie, Aubrey, and Loy Ray and their spouses executed a deed conveying two parcels of real property, which their father had owned at his death, to their sister Inez. The plaintiffs conveyed their interests in the property to Inez, “[sjubject to the life estate of the widow, Allie Morgan.” For reasons undisclosed, Walter did not sign the deed, though it listed him as a grantor.

At the time of the conveyance, Inez was 47 years old, had never married, and had no children. Approximately eight years later, in 1963, she married Dock Tate, the defendant/appellee in this action. Allie Morgan had died in 1962, so Inez owned the property, except for Walter’s interest, at the time of her marriage. Inez died intestate on August 3,1982, still married to Dock Tate and still childless. Under the law of descents applicable at that time, Code 1975, § 43-3-1 (1982 Supplement), Dock Tate stood to inherit the subject property. '

The plaintiffs brought this action, seeking reformation of the deed to have it convey only a life estate to Inez or to have a constructive trust imposed on the property in favor of the plaintiffs. Dock Tate filed a motion for summary judgment, which plaintiffs opposed with a brief and affidavits, including one by Walter Morgan stating that Inez had told him it was her intention that the property go back to the family. The gist of the plaintiffs’ argument is that they conveyed their interests in the property to Inez with the intention that it would revert to them as her heirs upon her death. They point out that only because the legislature changed the law of descent and distribution shortly before Inez’s death did Dock Tate inherit the property as her surviving spouse.

The trial court granted Dock Tate’s motion for summary judgment, noting that “all the materials submitted in opposition to said Motion for Summary Judgment clearly reveal that the Plaintiffs are relying on a mistake of law as a basis for the relief claimed .... ” Plaintiffs appeal from this judgment.

The trial court’s judgment implicitly recognizes the rule that “a pure mistake of law is not an adequate ground for relief in equity.” Hinson v. Byrd, 259 Ala. 459, 463, 66 So.2d 736 (1953); Western Grain Company Cases, 264 Ala. 145, 164, 85 So.2d 395 (1955). Indeed, there was not even a mistake of law at the time the deed was drafted, because Inez’s brothers and sister would have inherited from her essentially as they allege they intended. Code 1940, tit. 16, § 1. We say “essentially” because Walter would have owned a larger share, retaining his original ⅛ and inheriting of Inez’s ⅜ interest.

The legislature changed the course of descents in May of 1980 to allow a husband or wife to inherit ahead of all others except children. Acts 1980, Act No. 80-765, p. 1594. See also Acts 1981, Act No. 81 — 967; First Special Session, p. 148, and Act No. 81-1170, Third Special Session, p. 454, which changed “husband or wife” to “surviving spouse.” When Inez died in August 1982, this order of descents was in effect. If Inez’s intent was that her sisters and brothers take the property, she could and should have written a will which so provided.

We note also that the plaintiffs’ right to inherit was affected even at the time Inez married Dock Tate.' Under Code 1940 (Re-comp.1958), tit. 7, § 12, a surviving husband was entitled “to the use of the [wife’s] realty during his life.” Thus Dock Tate would have been entitled to at least a life estate in the subject property after Inez’s death at any time during their marriage.

Plaintiffs allege their family relations were close. This being the case, they could have urged Inez to write a will leaving the property to them after she married or after the law of descents changed. Equity aids the diligent, not those who negligently fail to take advantage of a remedy. Moore v. McLean, 248 Ala. 9, 26 So.2d 96 (1946).

Dock Tate cites Cole v. Adkins, 358 So.2d 447 (Ala.1978), as setting out the circumstances under which a constructive trust may be imposed:

“ ‘(a) the transfer was procured by fraud, misrepresentation, duress, undue influence or mistake of such a character that the transferor is entitled to restitution, or
‘(b) the transferee at the time of the transfer was in a confidential relation to the transferor ....’”

Id., at 449, quoting Restatement of. the Law of Restitution, § 182 (1937 ed.) (emphasis in Cole). Because there is no allegation here of fraud, misrepresentation, duress, or undue influence, Dock Tate correctly argues that the only grounds for constructive trust under the Cole analysis are mistake and confidential relationship.

The Court in Cole quoted the comment to clause (b) of the cited section of the Restatement of Restitution, including the statement that a confidential relationship as contemplated in that clause includes the situation “where, because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment or advice of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transferor.” Cole, supra, 358 So.2d at 449 (emphasis in Cole). Here, the trans-ferors were neither guided by Inez’s judgment nor expecting her to take any action to reconvey the property. In Cole the transferor expected his mother to reconvey by deed or will.

The trial court correctly perceived that the plaintiffs rest their case on a mistake, and, under the authorities cited above, a mistake of law is not a “mistake of such a character that the transferor is entitled to restitution.” Cole, supra.

Neither is reformation available to change the deed to grant only a life estate to Inez. The deed recited that the conveyance was subject to a life estate in Allie Morgan, but mentioned no such limitation on the interest granted to Inez. Reformation is available to correct a mutual mistake of the parties, not to create a new agreement. Highlands Underwriters Ins. Co. v. Eleganté Inns, Inc., 361 So.2d 1060 (Ala.1978); Original Church of God, Inc. v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974).

The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . Aubrey died before the suit was brought, so his widow and son are actually the plaintiffs in respect of his interest.


author: FAULKNER, Justice.

text:
    Sidney D. CLEMONS v. Paul MALLETT, Susie Mallett, et al.
    82-873.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      J. Mason Davis, Birmingham, for appellant.
    William R. Justice, Columbiana, for ap-pellees.
   FAULKNER, Justice.

Sidney D. Clemons appeals from the trial court’s decision in favor of Paul and Susie Mallett on their counterclaim for reformation of a deed. We affirm.

On November 24, 1980, Mr. Clemons filed an action to quiet title to certain land located in Shelby County, Alabama, against numerous defendants, including the Mal-letts. Mr. Clemons alleged in his complaint that the source of his title traced back to a deed from one Lula F. Crawford to a Mr. Joe Reese. That deed described a larger tract of land, but included the parcel that is the subject of this suit.

Mr. Clemons further alleged that Mr. Reese, and, after his death, his widow, Cora Reese, conveyed certain parcels from the larger tract to various individuals, all of whom were made defendants to this suit. One such parcel was conveyed by Cora Reese, following Joe Reese’s death, to Paul and Susie Mallett. This parcel is the subject of a counterclaim by the Malletts.

Cora Reese died and her will was probated in Jefferson County, Alabama, in 1976. Rebecca Clemons, as sole devisee under the will, received all the real property owned by Mrs. Reese at her death. Rebecca Clemons then deeded the property, the subject of this action, to her son, Sidney Clemons. Mr. Clemons then employed a Mr. Huddie Dansby, a licensed and registered land surveyor, to survey the property.

On December 22, 1980, the Malletts filed an answer to Clemons’s complaint, alleging that they were the fee simple owners of a portion of the property claimed by Mr. Clemons. No other defendant answered the complaint, and default judgments were entered against all defendants except the Malletts.

In support of their claim, the Malletts offered a deed from Cora Reese to them allegedly conveying that portion of the property. Also, in their answer, the Mal-letts set up the defense of adverse possession, alleging, in part:

“8. Defendants further aver that they have been and are now in adverse, actual, open, notorious, hostile and continuous possession of a portion of the lands claimed by plaintiff, under known and visible lines and boundaries, under color of title through the deed described in item (g) of paragraph 18 of the complaint for more than 10 years next preceding the filing of the complaint. They erected several years ago thereon a house and other improvements, including a gravel driveway, without objection from anyone, or any claim being made thereto by the plaintiff or anyone else. During all of said time they have paid, from year to year, the taxes on said land.
“9. Defendants aver that plaintiff has never had any possession of the portion of property claimed by defendants, and is not now in peaceful possession of said portion of property, and is not entitled to have fee simple title thereto quieted in himself.”

Clemons answered the Malletts’ counterclaim and set up a claim for ejectment. The court’s pretrial order in this case, issued June 21, 1982, and amended July 1, 1982, contained the following stipulations:

A. Appellees admitted that the deed from Cora Reese to Appellees did not describe the same real property as that actually occupied by Appel-lees;
B. Appellees claimed that the land actually occupied by them is the same land they intended to be conveyed to them;
C. Appellees claim statutory relief for occupancy of the correct land under a deed with a vague or incorrect description;
D. Appellees admitted that Appellant is the record owner of the real property described in the complaint;
E. Both Appellant and Appellees admitted that the survey made by Huddie Dansby is accurate; and
F. Both Appellant and Appellees admitted that Appellees had occupied the real property upon which their improvements are situated for more than ten (10) years.

On June 8, 1982, Mr. Clemons amended his complaint to include an ejectment claim and a claim for mesne profits for waste, injury, and detention of the property.

The case went to trial on the stipulations of the pretrial order, plus the following stipulations:

A. Both Appellant and Appellees have paid taxes;
B. The subject real property is the same as set forth in the title binder issued by Shelby County Abstract Company;
C.The matter in controversy was the matter of Appellees’ deed; the location of the property therein described; the question of reformation of the deed; and the claim for the reasonable value of rents and profits.

The trial judge, after hearing ore tenus testimony, entered an order, on January 31, 1983, granting reformation of the Malletts’ deed and denying the relief requested by Clemons. The court entered an amended judgment on May 10, 1983, which granted Clemons relief against all defendants other than the Malletts.

Clemons filed his notice of appeal on June 10, 1983. Clemons argues on appeal that the order of the trial judge granting reformation of the Malletts’ deed on the grounds of mutuality of mistake is manifestly unjust, palpably erroneous, and against the great weight of the evidence. We do not agree.

It is a general rule in Alabama that a court may exercise its equitable powers to reform a deed to make it conform to the intention of the parties. See Pinson v. Veach, 388 So.2d 964 (Ala.1980); Clipper v. Gordon, 253 Ala. 428, 44 So.2d 576 (1950). One of the established grounds for reformation of an instrument is mutuality of mistake. See Federated Guaranty Life Insurance Company v. Painter, 360 So.2d 309 (Ala.1978); Original Church of God, Inc. v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974).

In Palmer v. Palmer, 390 So.2d 1050, 1053 (Ala.1980), concerning reformation due to mutual mistake, this court stated:

“Where it appears that by a mutual mistake of all parties the instrument does not conform to or express their intention or agreement, as where by mistake some material part of the instrument is omitted or the deed is drawn to convey a different interest or a greater or lesser estate than was agreed upon, relief may be had in equity against the other party to the conveyance or his privies. 23 Am. Jur.2d Deeds §§ 155, 158 (1965).
“Although a deed in terms expresses the intention of the parties, if there is a material mistake as to the property to which those terms apply, such as to its identity, situation, boundaries, title, amount, value, and the like, a court of equity may grant appropriate relief. Goodrich v. Lathrop, 94 Cal. 56, 29 P. 329 (1892).”

In such a case, an error in drafting establishes mutuality of mistake, Williams v. Phillips Petroleum Co., 453 F.Supp. 967 (S.D.Ala.1978); Fidelity Service Ins. Co. v. A.B. Legg & Sons Burial Ins. Co., 274 Ala. 94, 145 So.2d 811 (1962); and it is immaterial as regards reformation who employed the draftsman. Taylor v. Burns, 250 Ala. 218, 34 So.2d 5 (1948); McCaskill v. Toole, 218 Ala. 523, 119 So. 214 (1928).

At the trial level, the party opposing the instrument to be reformed must produce evidence that is clear, convincing, and satisfactory, which proves that the deed does not truly express the intentions of the parties. Pinson v. Veach, supra; Adams v. Adams, 346 So.2d 1146 (Ala.1977); Original Church of God v. Perkins, supra. Furthermore, the party proposing reformation must also show that the reformation will not prejudice the rights of innocent third parties. Adams v. Adams, supra, Code of Alabama 1975, § 8-1-2.

It should also be noted that the death of the grantor alone will not affect the right of the grantee to reformation for mutual mistake in description, Beason v. Duke, 246 Ala. 387, 20 So.2d 717 (1945). Reformation will be allowed not only as against the original parties, but also against those claiming under them in privity, such as representatives, heirs or devi-sees, legatees, assignees, voluntary grantees or judgment creditors, or purchasers from them with notice of the facts. Gilmore v. Sexton, 254 Ala. 560, 49 So.2d 157 (1950); Phoenix Chair Co. v. Daniel, 228 Ala. 579, 155 So. 363, 365 (1934). Furthermore, possession of the property is sufficient notice to defeat a bona fide purchaser for value in a reformation action. Johnson v. Green, 264 Ala. 381, 88 So.2d 375 (1956).

It is argued that the mistake in the deed was due to the Malletts’ own negligence in not having a survey made of the property to be deeded, and that relief should be denied on that ground. It is the rule, however, that even clearly established negligence may not, of itself, be a sufficient ground for refusing relief from a mutual mistake in a deed, if it appears that the other party has not been prejudiced thereby and there is no fraud or overreaching involved, since the negligence in such cases must be culpable and injurious to bar the relief. Clipper v. Gordon, 253 Ala. 428, 44 So.2d 576 (1950); Taylor v. Burns, supra; Ballentine v. Bradley, 238 Ala. 446, 191 So. 618 (1939).

Finally, it is a familiar standard that the decision of a trial judge who heard the evidence in a case presented ore tenus will not be overturned on appeal so long as it is supported by competent evidence and is not manifestly unjust or plainly and palpably erroneous. Adams v. Adams, supra; Fidelity Service Ins. Co., supra; Murphree v. Henson, 289 Ala. 340, 267 So.2d 414 (1972). This standard is certainly applicable to reformation cases. Dalrymple v. White, 402 So.2d 968 (Ala.1981).

We conclude from a review of the record in this case that, in light of the principles stated above, there is sufficient evidence to support the trial court’s decision to reform the Malletts’ deed. Furthermore, our review of the weight of the evidence does not convince us that the decree is manifestly unjust or plainly and palpably erroneous. The decision of the trial judge, therefore, is due to be, and it hereby is, affirmed.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: MADDOX, Justice.

text:
    Genell V. McLEOD, d/b/a McLeod Real Estate v. John Howard WILSON and Laurel W. Wilson.
    82-1108.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Charles H. Erwin, Mobile, for appellant.
    Augustine Meaher, III of Lyons, Pipes & Cook, Mobile, for appellees.
   MADDOX, Justice.

This appeal involves the question of whether there was evidence that a real estate broker was the “efficient cause” in procuring a purchaser for a particular tract of land, so that she would be entitled to a commission from the sellers. The trial court entered a summary judgment on behalf of the sellers of the property. We reverse and remand.

Genell V. McLeod, plaintiff/appellant, is a licensed real estate broker in Mobile. John Howard Wilson and his wife Laurel Wilson, defendants/appellees, are residents of Baldwin County. The facts indicate that sometime prior to March 1, 1980, Joseph L. Meaher, an employee of Davis and Meaher, Inc., a company that provides forestry related services and has offices in Mobile, informed McLeod that the Wilsons were interested in selling a 113-acre tract of land, and that they were willing to pay a real estate commission of ten percent if a buyer for the property could be found.

McLeod contacted a real estate agent named Steve Wilson (who is unrelated to the sellers) to assist in locating a buyer for the property.. Steve Wilson, accompanied by Ronald H. McLeod, husband of the broker, contacted Anton Leiterman, president of Leiterman Farms, Inc., concerning the availability of the Wilsons’ property and negotiated an offer to purchase the property at a gross price of $170,000. Anton Leiterman signed a standardized offer to purchase, with an added notation that title to the property would be taken in the name of Leiterman Farms. A sentence in the offer immediately preceding the signature block contained the following provision regarding payment of a real estate commission: “This price includes your commission of 10% of the sales price of the property, which amount you are to deduct from the cash payment at time of closing of the sale.”

After reviewing Leiterman’s offer, the Wilsons made several changes: the price was changed to a gross amount of $188,633 and a provision was inserted which stated that closing was to be within thirty days of the acceptance of the offer. These changes were accepted by Leiterman and he made a cash deposit of $1,000 as earnest money. The balance of $187,633 was to be paid at closing. The date of Leiterman’s original offer was March 1, 1980; the date of the Wilsons’ modification and acceptance was March 3, 1980.

On May 22, 1980, obviously more than thirty days after the acceptance of the offer, the Wilsons’ attorney contacted McLeod by letter and requested one-half of the earnest money. In the letter the attorney stated that it was the Wilsons’ understanding that Leiterman did not have on hand the amount of the purchase price. The letter concluded: “Our client has entered no exclusive listing on this property. If you have a prospective purchaser who has funds readily available, you may wish to submit an offer to purchase directly to Mr. Wilson.” On June 23, McLeod forwarded a cheek in the amount of $500, payable to John H. Wilson, who later returned the check to McLeod through the office of Davis and Meaher, Inc.

Subsequent to the unexplained return of the check to McLeod by Wilson, she learned that the Wilsons had executed a deed on October 9, 1980, conveying the 113 acres to Leiterman Farms. While the purchase price was not recited in the deed, Leiterman, when later deposed, testified that the approximate purchase price was $169,500.

, After the Wilsons refused to pay McLeod a commission on the sale of the property, McLeod filed suit. The trial court ordered two other brokers, Steve Wilson and Raymond McConnell, added as plaintiffs, but neither claims a commission. Summary judgment, based upon the pleadings and the depositions of several witnesses, was entered by the trial court in favor of the Wilsons. McLeod’s motion for reconsideration was denied and she appealed.

Summary judgment is appropriate when there is no genuine issue of a material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Houston v. McClure, 425 So.2d 1114, 1116 (Ala.1983). Where there is a scintilla of evidence supporting the position of the nonmoving party, however, a summary judgment is inappropriate. Legg v. Kelly, 412 So.2d 1202, 1204 (Ala.1982); Oliver v. Taylor, 394 So.2d 945, 946 (Ala.1981).

McLeod asserts that irrespective of the thirty-day closing deadline, her commission was earned when the Wilsons accepted Leiterman’s offer to purchase. The authority for this proposition is found in the early case of Bailey v. Padgett, 195 Ala. 203, 70 So. 637 (1915):

“A real estate agent or broker employed to make a sale of lands on specified terms is entitled to his commission or compensation, when he procures a person who is able, ready, and willing to buy on terms specified and the vendor accepts him, though the purchaser may afterwards decline.”

195 Ala. at 208, 70 So. at 639. More recently, the Court has stated:

“The general rule regarding a broker’s right to receive a commission is that unless the seller and the broker have agreed to the contrary the broker is entitled to receive a commission when he procures a purchaser ready, willing, and able to buy on the seller’s terms, even though the sale is never consummated. Espalla v. Lyon Co., 226 Ala. 235, 146 So. 398 (1933); O’Neal v. Plowden, 220 Ala. 317, 124 So. 882 (1929); Alabama Fuel & Iron Co. v. Adams, Rowe & Norman, 216 Ala. 403, 113 So. 265 (1927); Malone v. Dillard, 212 Ala. 361, 102 So. 705 (1925).”

Alabama Fuel Sales Co. v. Vulcan Energy Resources, 339 So.2d 1007, 1009 (Ala.1976). While it is not generally necessary that the broker produce a purchaser whom the seller knows to be ready, willing, and able to buy if the purchaser is in fact ready, willing, and able to buy, Smith v. Sharpe Real Estate Co., 200 Ala. 666, 667, 77 So. 40, 41 (1917), acceptance by the seller is conclusive evidence of the fact that the purchaser was able, ready and willing, thereby dispensing with the necessity of a factual determination on the issue. Handley v. Shaffer, 177 Ala. 636, 653, 59 So. 286, 291 (1912).

The Wilsons contend, however, that since the property was sold six months after the expiration of the offer and acceptance and not during the pendency of the agency, it was incumbent upon McLeod to show that her conduct was the “efficient cause” of the sale. As authority for this proposition, the Wilsons cite the following language of Gulf Trading Co. v. Radcliff, 216 Ala. 645, 114 So. 308 (1927).

“In cases where the owner sells to his agent’s client pending the agency, and in cases of any fraudulent device to evade commissions, and still reap the fruits of his labors, the fact that the owner does sell to such client is sufficient evidence that he was ready, able, and willing to purchase. Culver v. Gambill Realty Co., 214 Ala. 84, 107 So. 914; DeBriere v. Yeend Bros. Realty Co., 204 Ala. 647, 86 So. 528; Handley v. Shaffer, 177 Ala. 636, 59 So. 286.
“But a sale by the owner after the expiration of the time limit is not subject to this rule. Because a purchaser was ready to purchase at a later date does not prove he was ready during the pend-ency of the agency. In such case, the plaintiff must show his services were the efficient cause of the purchase.”

216 Ala. at 655, 114 So. at 317. Under the circumstances of the instant case, we agree with the sellers that since the sale of the property was consummated some six months after the agency had expired, it was necessary for McLeod to prove that her conduct, or the conduct of her sub-agent, see Mellos v. Silverman, 367 So.2d 1369, 1374 (Ala.1979), was the “efficient cause” of the sale.

“In determining whether a broker has earned a commission by procuring a purchaser, what amounts to procurement is a question of fact, and it is enough that the efforts of the broker, acting upon the purchaser, are the efficient cause of his offer to purchase; it being unnecessary that such efforts be the sole cause.” Bailey v. Padgett, supra, 195 Ala. at 207, 70 So. at 638. (Emphasis added.)

We find that there was at least a scintilla of evidence that McLeod or her subagent was a procuring cause of the sale of the land to Leiterman Farms; therefore summary judgment was inappropriate. See Foote v. Moore, 342 So.2d 906, 909; Alabama Fuel & Iron v. Adams, Rowe & Norman, 216 Ala. 403, 407, 113 So. 265, 269 (1927). This is particularly so in view of the facts of this case, especially those contained in the deposition of Anton Leiter-man, the buyer.

Although the sale of the property was closed six months after the offer to purchase expired, the terms of the sale were essentially the same as the terms negotiated by Steve Wilson when Leiterman made his initial offer to purchase in March 1980. In his deposition, Leiterman stated that he had been unaware that the Wilson property was for sale until Steve Wilson and the broker’s husband visited him to see if he was interested in purchasing the property. Although Leiterman stated under oath that he and his sons, who were active in the family business, desired to purchase the property the entire time from March until the closing and that the delay in the closing was due to the fact that the local savings and loan association lacked sufficient lending capacity to loan the corporation the $2,300,000 needed to consolidate all the corporation’s debts and to purchase the property, he also testified that they could have borrowed the entire $187,633 in March, but “[t]he boys figured it was too much, that’s all.” When deposed, Leiterman testified as follows:

“Q [H]ow did you first become aware that the property could be bought?
“A They come out there themselves.
“Q They told you about it, that it could be bought?
“A They come out, Steve Wilson and McLeod. They come out there together and they were working together.
“Q That’s the first time that you knew that you might be able to buy that property from Mr. Wilson? .
“A Yeah, they wanted that doggone commission. We just got around that and bought it directly from Mr. Wilson.”

Summary judgment was improperly granted; therefore, the judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Eunice NORTHINGTON v. DAIRYLAND INSURANCE COMPANY.
    82-1189.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      Wilford J. Lane and Thomas W. Harmon, Anniston, for appellant.
    Michael B. Maddox of Clark & Maddox, Birmingham, for appellee.
   FAULKNER, Justice.

Appellant, Eunice Northington, appeals from the trial court’s summary judgment in favor of Dairyland Insurance Company, Inc. (Dairyland) in an action alleging breach of contract and fraud. We affirm.

In September 1981, Ms. Northington went to Mr. Leonard Wills, a defendant below, and discussed the possibility of obtaining insurance for her automobile. Mr. Wills, who owns and operates Wills Realty and Insurance Company, Inc., is an independent insurance agent for various companies, including Dairyland, and is an insurance broker for other companies. On November 30, 1981, Ms. Northington gave Mr. Wills a cash payment of $80.00, and Mr. Wills advised her that she had full automobile insurance coverage on her automobile as of that date. Ms. Northington did not fill out an application for insurance or sign any other form at that time or at any subsequent time in connection with her insurance coverage.

Ms. Northington attempted to contact Mr. Wills subsequently to discuss the fact that she had never received her insurance policy papers. On the few occasions when she reached Mr. Wills, he maintained to Ms. Northington that she had full insurance coverage, but did not inform her of the particular insurance company through which she was allegedly insured.

On December 16, 1981, Ms. Northington was involved in a one-vehicle automobile accident. She made a claim to Mr. Wills for coverage of the damages under her alleged insurance policy. Mr. Wills advised her to get two estimates on the damage and not to worry.

In January 1982, following the accident, Mr. Wills informed Ms. Northington that she had insurance with Dairyland Insurance Company, Inc. and that this insurance would cover the damage to her automobile. In February 1982, Mr. Wills accepted a further payment of $37.55 from Ms. North-ington to be applied to the cost of her insurance.

In fact, Mr. Wills never made application to Dairyland for insurance on Ms. North-ington’s behalf. Nor did Mr. Wills forward the premium payments from Ms. Northing-ton or any notice of loss from the accident to Dairyland.

On April 8, 1982, Ms. Northington filed a complaint against Leonard Wills, Wills Realty and Insurance Company, Inc., and Dairyland Insurance Company. She alleged breach of contract and fraud against the defendants.

On January 27, 1983, Dairyland filed a motion for summary judgment. As grounds for the motion, Dairyland asserted that there was no material dispute as to the facts and that at no time did Dairyland write a policy of insurance for Ms. North-ington, that at no time was Ms. Northing-ton, prior to her accident, informed that she had a policy of insurance with Dairyland, and that the actions of Dairyland’s agent, Mr. Wills, exceeded the scope of his authority.

The trial court granted Dairyland’s motion for summary judgment. Ms. North-ington appeals, alleging that the trial court erred in finding that there was no genuine issue of material fact as to Dairyland’s liability. Her basic argument is that Dairy-land is bound by the representations that she was fully insured made by Mr. Wills acting under apparent authority as a general agent for Dairyland. We do not agree.

First, it is clear that Mr. Wills could not be considered an actual agent of Dairy-land in his transactions with Ms. Northing-ton, since he exceeded the scope of his actual authority as defined in the agency agreement existing between him and Dairyland. That agreement stated, in part:

“(1) Pursuant to request that the underwriting facilities of the Company be made available to the Agent, the Company hereby grants authority to the Agent to solicit proposals for insurance for such classes or risks as the Company from time to time may authorize to be solicited, and to collect, receive and receipt for premiums of insurance tendered by the Agent to and accepted by the Company subject, however, to restrictions placed upon such Agent by the laws of the state or states in which such Agent is authoriz-éd to write insurance business and to the terms and conditions hereinafter stated; provided, however, that the acceptance by the Agent of any premiums or the giving of a receipt therefor shall in no wise obligate the Company other than in accordance with the written instructions of the Company.
“Agents shall have authority to bind insurance for classifications of risks and types of vehicles that are normally written by the Company. When a signed application is submitted, with a premium deposit of at least two months’ premium, coverage is bound as of the time and date the application is signed by both the applicant and agent. All bound business must be submitted with cash and must be promptly forwarded to a Dairyland office.”

Since Mr. Wills willfully breached the agency agreement by failing to follow the above procedures in securing insurance for Ms. Northington, he cannot be considered an actual agent so as to bind Dairyland in this ease. See Standard Oil Co. v. Gunn, 234 Ala. 598, 176 So. 332 (1937); Gulf States Co. v. Fried, 218 Ala. 684, 119 So. 685 (1928).

Ms. Northington, nevertheless, asserts that Dairyland is liable for Mr. Wills’s representations under the doctrine of apparent authority and estoppel. In Johnson v. Shenandoah Life Insurance Company, 291 Ala. 389, 394, 281 So.2d 636, 640 (1973), concerning the doctrine of apparent authority and estoppel, this Court stated:

“In Roberts & Sons v. Williams, 198 Ala. 290, 73 So. 502, this court said:
“ ‘Where the evidence shows that the actor has been held out by the alleged principal, as being his agent or as possessing the authority assumed by such agent within the scope of the principal’s business, the doctrine of apparent authority can be invoked by one who has been misled to his detriment. * * * )
The following was written in Automotive Acceptance Corporation v. Powell, 45 Ala.App. 596, 234 So.2d 593:
“ ‘The doctrine of apparent authority does not rest upon what one thinks an agent’s authority may be, or what the agent holds out his authority to be; rather, the doctrine of apparent authority is based on the principal’s holding the agent out to a third person as having the authority under which he acts. The following statement on the doctrine of apparent authority is found in Am.Jur.2d, Agency, Sec. 74, p. 476:
“ ‘ “The apparent power of an agent is to be determined by the acts of the principal, and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent’s own conduct and statements have created the apparent authority.” ’
“ ‘Apparent authority’ is such as a principal knowingly permits an agent to assume or holds him out as possessing. First Trust Joint Stock Land Bank v. Diercks, 222 Iowa 534, 267 N.W. 708. It seems to be generally held that an agent’s apparent authority must be based upon the conduct of the principal and not of the agent. 2A C.J.S. Agency § 161; 3 Am.Jur.2d, Agency § 75.”

These statements indicate that in order for a principal to be held liable under the doctrine of apparent authority and es-toppel, the principal must have engaged in some conduct which led a third party to believe that the agent had authority to act for the principal. Reviewing the record, we find no evidence whatsoever that Dairy-land indicated to Ms. Northington or led her to believe that Mr. Wills had authority to act for the company in the manner in which he acted. No one, other than Mr. Wills, made any representations to Ms. Northington or engaged in any conduct on behalf of Dairyland in this case. Since an agent’s apparent authority must be based on conduct of the principal and not of the agent, and Dairyland engaged in no conduct which gave the impression of Wills’s authority, we hold that Dairyland is not liable for Wills’s representations.

As indicated above, Mr. Wills was not an agent for Dairyland in his transactions with Ms. Northington; he, therefore, had no authority to bind Dairyland by his representations. Accordingly, there was no genuine issue of material fact against Dairy-land. Dairyland, therefore, was entitled to summary judgment, pursuant to A.R. Civ.P., Rule 56(c).

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: ■ FAULKNER, Justice.

text:
    Donald E. THOMPSON v. FORD MOTOR CREDIT COMPANY.
    83-118.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Michael F. Terry of Doggett & Terry, Florence, for appellant.
    Joe M. Patterson, Jr. of Holt, McKenzie, Holt & Patterson, Florence, for appellee.
   ■ FAULKNER, Justice.

This is an appeal from a summary judgment in favor of Ford Motor Credit Company in Thompson’s suit for conversion. We affirm.

The facts of this case are stated in Thompson’s brief as follows:

“On or about September 25, 1979, the Appellant, Donald Eugene Thompson, purchased a 1978 Mercury Grand Marquis automobile from Gateway Lincoln-Mercury, Inc. of Sheffield, Alabama. Mr. Thompson paid $606.00 as a down payment, leaving $5,400.00 unpaid. That balance was financed by the Appellee, Ford Motor Credit Company. Under the financing agreement of the parties, the Appellant was to pay 30 monthly installments of $180.00 each.
“Under this payment schedule Ford Motor Credit Company assessed 30 charges for late payment against Mr. Thompson, 6 of which were subsequently waived. The Appellees also granted three (3) extensions of payment/due date changes. Thirteen of the debtor’s checks were returned for insufficient funds.
“After accepting these late payments, along with the late charges assessed, Ford Motor Credit Company repossessed Mr. Thompson’s automobile pursuant to a clause in their security agreement. The repossession occurred on or about July 26, 1982. At the time the automobile was repossessed, there was a $166.66 balance due on the account. There was no breach of the peace involved in the repossession.
“Prior to repossessing the automobile, Ford Motor Credit Company assessed $201.58 in late charges. Taking the $166.66 balance due at the time of repossession, it can be calculated that Mr. Thompson had paid the principal amount financed and the balance due consisted entirely of late charges assessed. All of Mr. Thompson’s 30 payments were late. Some of his payments were late by as much as 2 months and 17 days.”

Thompson raises this issue on appeal: Under Alabama law, may a creditor be equitably estopped from exercising a repossession clause in a contract between the parties, without notice to the debtor, when it has accepted late payments in the past without repossessing the collateral?

We do not reach the question of “without notice to the debtor” because we find from the evidence in the record that Thompson knew or should have known sometime in the middle of July 1982, that Ford Motor Credit Company was going to repossess the automobile unless he paid the balance due. (The repossession occurred at 3:30 a.m. on July 26, 1982, and was made by Larry Hancock — employed by Ford Motor Credit Company for that purpose.) Therefore, we opine that Thompson inadvertently failed to honor the requests of FMCC to pay the balance due.

The summary judgment is affirmed on the authority of Hale v. Ford Motor Credit Company, 374 So.2d 849 (Ala.1979).

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


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

text:
    Ex parte Timothy Mark LEE. (In re Timothy Mark LEE v. Alice Alisha LEE).
    Civ. 3612.
    Court of Civil Appeals of Alabama.
    April 15, 1983.
    Rehearing Denied May 18, 1983.

      B. Greg Wood of Wood, Hollingsworth & Willis, Talladega, for petitioner.
    Lister Hill Proctor of Proctor & Vaughn, Sylacauga, for respondent.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an interstate child custody case.

Both parties lived in Alabama during their younger years but Timothy Mark Lee (Mark) has resided in Texas since 1977, where he was, and is, a carpenter in his father’s employ. Mark, when nineteen years of age, and Alice Alisha Lee (Lisa), then aged eighteen, were married in Alabama on June 12, 1980 and on the following day moved to Texas where they lived together until their separation about sixteen months later. A daughter was born to them in Texas on April 4, 1981. Because of Mark’s cruel treatment of her, Lisa returned to Alabama on October 8, 1981, bringing the daughter of the parties with her. Both mother and child have resided in Alabama since that time. On October 14, 1981, Mark, having returned to Alabama for that express purpose, attempted by violence to take his child with him back to Texas, but a Talladega County deputy sheriff stopped him, returned the child to Lisa and advised her to seek protective relief from the juvenile court.

On October 14, 1981, Mark’s attorney filed in a Texas district court an original petition for a divorce and for child custody. It was personally served upon Lisa in Alabama on October 26, 1981.

On October 15, 1981, without knowledge of the Texas proceedings, Lisa filed a petition in the Juvenile Court of Talladega County (the juvenile court) seeking custody of the child and, on the same date, an ex parte order was entered by the juvenile court which granted temporary child custody to Lisa and which set the matter for a hearing on October 22, 1981. Mark received notice by mail on October 22, 1981 of such hearing, which, on that date, had already been continued with the October 15 judgment to remain in effect pending a full hearing upon the petition.

When Lisa was served with the Texas court papers, she consulted with an Alabama attorney, and she promptly employed a Texas lawyer, who filed on her behalf in the Texas court an answer which, generally, denied the averments of the petition. Because Lisa was not financially able to pay a $5,000 attorney’s fee, her Texas counsel was permitted by the Texas court to withdraw his legal representation of her in the case in January, 1982. Thereafter, Lisa received notices by mail of scheduled hearings and trials in the Texas case.

Both the Texas court and the juvenile court were informed of the child custody litigation which was pending in the other state.

In February, 1982, the Texas court granted the child’s temporary custody to Mark, which judgment Lisa swore that she did not see. She received notices through the postal service in June and July, 1982, informing her as to a final hearing in the Texas proceedings to be held, and which was held, on August 9, 1982. She did not attend that trial and the Texas court by its August 23, 1982 judgment divorced the parties and awarded custody of the child to Mark.

In October, 1982, Mark filed the present proceedings in the Circuit Court of Tallade-ga County (circuit court) to enforce the Texas custody judgment. Lisa contested that case.

Just before an evidentiary trial, the circuit court specified the following issues to be heard: first, whether the Texas court had jurisdiction to render its judgment of August 23, 1982 and, second, whether the circuit court had jurisdiction to consider Lisa’s petition to modify the Texas custody judgment. Such is the correct procedure to be followed in this type of litigation. Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ. App.1981). After that trial, the learned circuit court entered the following order:

“This Court having considered testimony and exhibits offered by Plaintiff and Defendant finds that the Circuit Court for Talladega County, Alabama has jurisdiction to hear Defendant’s Petition to Modify Custody under the Uniform Child Custody Jurisdiction Act.
“IT IS THEREFORE ORDERED that all other proceedings relative to the custody of the child herein shall be stayed pending hearing.”

Such judgment was, by necessary implication, a determination by the circuit court that the Texas court was without jurisdiction to render its judgment in this case and that the Texas judgment was not entitled to be enforced. Mark seeks a writ of mandamus.

The Parental Kidnapping Prevention Act of 1980 (the federal act or PKPA), which is codified in section 1738A of title 28 of .the United States Code, provides that, if the Texas court’s child custody determination was entered consistently with the provisions of the federal act, it must be enforced according to its terms, without modification. Therefore, we are required to search that federal statute to ascertain whether the Texas custody judgment complied therewith.

Here, the mother was given reasonable notice and opportunity to be heard in the Texas proceedings. The notices consisted of personal service of the summons and complaint upon her and the receipt by her of mailed notices of the final hearing, as well as receiving notification of intervening matters. Therefore, there was full compliance with subsection (e) of the federal act, which, in substance, requires that procedural due process be accorded.

The child was born in Texas and, thereafter, resided in Texas with both parents for six months and four days before being removed from that state to Alabama by her' mother on October 8, 1981. The proceedings were commenced in Texas only six days later and the father continued, and continues, to live in that state. Accordingly, the child custody determination of the Texas court was made pursuant to subsection (c)(2)(A) of the federal act.

The juvenile court did not have jurisdiction under the significant connection section, (c)(2)(B), of the act of congress, for the applicability of those provisions are made expressly contingent upon Texas not having had jurisdiction under section (c)(2)(A) and the Texas court had such jurisdiction thereunder. In this respect, the federal act differs from the Uniform Child Custody Jurisdiction Act. The difference must be determined in favor of the federal version, for it prevails in the event of a conflict between the federal and state statutes. Flannery v. Stephenson, 416 So.2d 1034 (Ala.Civ.App.1982).

The proceedings in the juvenile court are no bar to the enforcement of the Texas judgment since the Texas court case was the first case to be commenced. The federal act provides as follows:

“(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.”

Title 28, § 1738A(g), United States Code. The critical date in ascertaining compliance with the federal act in that regard is the date of the filing of the custody proceedings in the Texas court, October 14, 1981, not the date of the rendition of the final judgment by that court in February, 1982. Pitts v. Sutter, 408 So.2d 105 (Ala.Civ.App.1981), cert. denied, 408 So.2d 114 (Ala.1982). Hence, jurisdiction in Alabama could not attach under the emergency judgment, or any other provision of the federal act so as to oust the Texas court of jurisdiction or so as to give preference jurisdiction to the juvenile court. In order to protect the best interest and welfare of a child, a court may, and indeed should when required, make emergency orders as to the custody of children within its geographical borders; however, such an order would not be a bar to the enforcement of a judgment of a sister state which is granted priority by the federal act.

The Texas court executed and employed jurisdiction in a consistent manner with the federal act and the juvenile court could not exercise jurisdiction in the custody matter to the exclusion of the Texas court since the Texas proceedings were first pending. The federal act is very rigid, permits the exercise of little or no judicial discretion and seeks to give more certainty to the assumption of jurisdiction by courts in interstate child custody conflicts. Instances of concurrent jurisdiction by courts in two different states as is authorized by the UCCJA are eliminated to a great extent by the PKPA. Here, the circuit court had no alternative but to enforce the Texas judgment according to its terms and without modification. Such a determination is inescapable under the federal act.

Under the mandamus test as reiterated in Evans v. Insurance Co. of North America, 349 So.2d 1099 (Ala.1977), a writ of mandamus shall issue to the learned circuit court unless that court, within fourteen days from this date, enters a judgment enforcing, without modification, the custody provisions of the Texas judgment rendered and entered in case number 35,227 by the District Court of Montgomery County, Texas, in the matter of the marriage of Timothy Mark Lee and Alice Alisha Lee on the 23rd day of August, 1982.

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 majority of the court.

WRIT CONDITIONALLY GRANTED.

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

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

As indicated in the majority opinion authored by our distinguished colleague whose assistance to this court is invaluable, the father seeks a writ of mandamus to force the Alabama circuit court to enforce the Texas decree awarding him custody.

The issue on appeal, as I view it, is whether Alabama has jurisdiction under applicable state and federal law to enter a custody determination, or whether Alabama is bound by law to enforce the Texas decree.

Interstate custody disputes are governed by the recently enacted federal statute, the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (PKPA). The PKPA is similar to the Alabama version of the Uniform Child Custody Jurisdiction Act (UCCJA). Because the federal statute, the PKPA, pre-empts state law, questions of jurisdiction arising in interstate child custody matters must be decided by reference to the PKPA. Moore v. Perez, 428 So.2d 113 (Ala.Civ.App.1983); Flannery v. Stephenson, 416 So.2d 1034 (Ala.Civ.App.1982).

The PKPA provides in pertinent part that:

“(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
“(1) such court has jurisdiction under the law of such State; and
“(2) one of the following conditions is met:
“(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
“(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
“(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.”

28 U.S.C. § 1738A.

The PKPA defines “custody determination” to specifically include temporary orders. 28 U.S.C. 1738A(b)(3). Hence, the temporary order, to me in this instance, entered in Alabama on October 15 was a “child custody determination made by a court of a State” as required by 28 U.S.C. 1738A(c).

The next requirement of the PKPA is that the court have jurisdiction under its own state law. This requires us to determine under the UCCJA, Ala.Code § 30-3-20 through § 30-3-44 (1982 Supp.), whether jurisdiction existed at the time the temporary order was entered. Section 30-3-23 provides in pertinent part that Alabama courts have jurisdiction if:

“(2) It is in the best interest of the child that a court of this state assume jurisdiction because:
“a. The child and his parents, or the child and at least one contestant, have a significant connection with this state; and
“b. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
“(3) The child is physically present in this state and:
“b. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent, ...”

The evidence presented at the jurisdictional hearing in Alabama was sufficient to support the trial judge’s implied finding that Alabama had jurisdiction to enter the October 15 decree under § 30-3-23(a)(2). The child and mother were physically present in the state; they both had significant contacts with Alabama, and evidence concerning the child’s future was available.

Furthermore, the court had jurisdiction under the emergency provisions of § 30-3-23(a)(3). The evidence indicates the child was injured during the father’s forcible attempt at physically taking the child. The relative caring for the child at the time was also injured. Such a situation appears to fall within the language of § 30-3-23(a)(3)(b).

I would therefore hold that under Alabama law the court had jurisdiction to enter the October 15 order.

Our next inquiry is whether the third requirement of the PKPA was met, that is: was “one of the following conditions ... met.” 28 U.S.C. 1738A(c)(2). Among those conditions are ones quite similar to the Alabama law, that being: “(c) the child is physically present in such State and ... (ii) it is necessary in an emergency to protect the child because he has been subjected or threatened with mistreatment or abuse; ...” As indicated, the father’s behavior which resulted in injuring both the child and its caretaker was mistreatment or abuse. Therefore, jurisdiction in Alabama existed under both the PKPA and the UCCJA at the time Alabama entered the October 15 order.

As noted by this court in Moore v. Perez, supra, under the PKPA, Alabama has continuing jurisdiction if the initial custody order was rendered in compliance with the federal act and the child or any contestant continues to reside in Alabama. Flannery v. Stephenson, supra. In the instant case, the initial custody order did comply with the PKPA, and mother and child continue to reside in Alabama. Therefore, on the date the mother filed the modification petition, Alabama had continuing jurisdiction to modify the Alabama October 15 decree.

Furthermore, in this instance under these most unusual facts, I note that the above result as stated by the dissent would not be inconsistent with results reached in other jurisdictions under the UCCJA. For instance, in Marcrum v. Marcrum, 89 N.J. 402, 446 A.2d 136 (N.J.1982), the court said it was unwilling to let the comity considerations of the UCCJA crowd out the best interest of the child, and refused a strictly technical reading of the UCCJA that would place comity considerations above the best interest of the child. See also Re Marriage of Settle, 276 Or. 759, 556 P.2d 962 (1976).

In view of the above, I would affirm the action of the trial court and allow the Alabama court to proceed.


author: HOLMES, Judge.

text:
    James Mitchell BLAIR v. Faye T. BLAIR (Brewington).
    Civ. 3601.
    Court of Civil Appeals of Alabama.
    June 1, 1983.
    Rehearing Denied June 24, 1983.

      Bingham D. Edwards, Decatur, for appellant.
    Stephen V. Hammond of Chenault, Che-nault & Hammond, Decatur, for appellee.
   HOLMES, Judge.

This is a child support modification ease.

The trial court of Morgan County required the father of a permanently disabled child to support the child past the age of majority. Additionally, the trial court increased support payments.

The father appeals and this court has no alternative but to reverse.

The primary issue before this court is whether the trial court’s actions requiring a non-custodial father to support his permanently disabled child is error. The father also contends the trial court erred in increasing support.

The facts pertinently are:

The parties were divorced in 1967. At that time there were four minor children including the disabled child who is the youngest. The original decree required the father to pay $12 per child per month for support. Child support was to continue for the children until they reached the age of eighteen or became self-supporting.

In 1970, the decree was modified to require the father to pay $50 per month for the disabled child’s support as well as all medical expenses.

In July, 1982, the mother filed a petition for modification seeking an increase in child support. The trial court found that the disabled child was permanently disabled and would continue to be dependent upon his parents. At the time of the hearing, the child was seventeen years old. He suffers from spinal epifida causing him to be paralyzed from the waist down and confined to a wheelchair. He currently lives with his mother who has custody by virtue of the divorce decree.

Both parents have remarried and their spouses both work. The father’s income has increased substantially — from $4.39 to $10.05 per hour — since the 1970 modification.

The trial court ordered the father to pay $150 per month for six months beginning September, 1982, thereafter increasing to $300 per month for support for the disabled child. In addition, the father is required to pay all medical expenses and maintain a life insurance policy with the disabled child as beneficiary. The trial court ordered that the support payments continue “as long as the child is dependent upon the parties for his support.” In denying the father’s motion for new trial, the trial court stated that the “support of a dependent child is the obligation of parents as a matter of public policy.”

The law in Alabama as it relates to the issue before this court is as follows:

In Reynolds v. Reynolds, 274 Ala. 477, 149 So.2d 770 (1963), the supreme court had presented to it the very issue now before this court; that is, the question of the trial court's authority in a supplemental proceeding to a divorce action to order a non-custodial parent to support his incapacitated child after the child has reached majority.

The supreme court in Reynolds held that the trial court was without jurisdiction to order a parent to support an adult child since the divorce statutes awarding child support apply only to minor children. The court stated the general rule as it exists m Alabama as being that a parent is not liable to support an adult child unless the child was living with the parent and was incompetent when he reached majority.

Alabama Code § 12-3-16 (1975) requires this court to follow the decisions of the supreme court. We have no alternative but to reverse because Reynolds, supra, requires it.

This court would be remiss in not commenting that were we free to do so, we would find the learned trial judge did not err. We would follow our sister state of Florida’s reasoning as stated in Fincham v. Levin, 155 So.2d 883 (Fla.App.1963), in which that court held that where a child is of weak body or mind, unable to care for itself after coming of age, the parental rights and duties remain practically unchanged and the parents’ duty to support the child continues as before.

A New Jersey court, in Kruvant v. Kruvant, 100 N.J.Super. 107, 241 A.2d 259 (1968), holds the position that support statutes contemplated support for children of divorced parents because of the presumed inability of these children, by reason of their minority, to provide for themselves. The New Jersey court further reasons that children who are physically or mentally unable to care for themselves are no less entitled to the “court’s solicitude where they continue to suffer, after they have attained their majority, from a physical or mental disability which continues to render them incapable of self-support.” Kruvant v. Kruvant, supra. This court believes that is the better reasoning.

As to the second issue of increased child support while the child is a minor, we find no error. The modification of child support is a subject which falls within the sound judicial discretion of the trial court and the trial court’s decision thereon will not be disturbed on appeal except where such discretion was plainly and palpably abused. Dismukes v. Dismukes, 376 So.2d 730 (Ala.Civ.App.1979); Plaskett v. Plaskett, 348 So.2d 784 (Ala.Civ.App.1977).

The increase in the instant case is generous, but the primary consideration is the needs of the child in relation to the ability of the parent to pay. Here, the child’s ordinary expenses have increased as well as the cost of caring for the child’s physical condition. Correspondingly, the father’s income has increased since the last modification. Hence, no error.

In view of the above, this case is due to be affirmed in part and reversed in part.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: BEATTY, Justice.

text:
    Ex parte Faye T. Blair BREWINGTON. (Re James Mitchell BLAIR v. Faye T. Blair BREWINGTON).
    82-923.
    Supreme Court of Alabama.
    Dec. 16, 1983.

      Stephen V. Hammond of Chenault, Che-nault & Hammond, Decatur, for petitioner.
    Bingham D. Edwards, Decatur, for respondent.
   BEATTY, Justice.

The trial court in this case ordered respondent, the father of a permanently disabled child, to support the child past the age of majority, and further, increased the amount of support payments the father was already making. The Court of Civil Appeals, 445 So.2d 292, reversed the order of the trial court because it felt compelled to follow the decision of this Court in Reynolds v. Reynolds, 274 Ala. 477, 149 So.2d 770 (1963), which held that, because the Alabama statute providing for child support (Code of 1975, § 30-3-3) had been held to apply only to minor children, the trial court was without jurisdiction to order a parent to support an adult child. We granted certiorari to consider petitioner’s request that this Court overrule Reynolds, supra.

The facts as set out in the opinion rendered by the Court of Civil Appeals are as follows:

“The parties were divorced in 1967. At that time there were four minor children including the disabled child who is the youngest. The original decree required the father to pay $12 per child per month for support. Child support was to continue for the children until they reached the age of eighteen or became self-supporting.
“In 1970, the decree was modified to require the father to pay $50 per month for the disabled child’s support as well as all medical expenses.
“In July, 1982, the mother filed a petition for modification seeking an increase in child support. The trial court found that the disabled child was permanently disabled and would continue to be dependent upon his parents. At the time of the hearing, the child was seventeen years old. He suffers from spinal epifi-da causing him to be paralyzed from the waist down and confined to a wheelchair. He currently lives with his mother who has custody by virtue of the divorce decree.
“Both parents have remarried and their spouses both work. The father’s income has increased substantially— from $4.39 to $10.05 per hour — since the 1970 modification.
“The trial court ordered the father to pay $150 per month for six months beginning September, 1982, thereafter increasing to $300 per month for support for the disabled child. In addition, the father is required to pay all medical expenses and maintain a life insurance policy with the disabled child as beneficiary. The trial court ordered that the support payments continue ‘as long as the child is dependent upon the parties for his support.’ In denying the father’s motion for new trial, the trial court stated that the ‘support of a dependent child is the obligation of parents as a matter of public policy.’ ”

Although we appreciate the decision of the Court of Civil Appeals which follows the general rule announced in Reynolds, supra, this Court concludes that the decision of the trial court is the result which accords with the legislature’s intent in this instance. To the extent that Reynolds, supra, is inconsistent with this holding, it is specifically overruled.

An analysis of the Alabama cases reveals that Reynolds-type decisions were based on the position that, absent a statute or agreement, no common-law authority existed to impose upon a non-custodial parent the obligation to support his adult child. However, the majority trend is to recognize an exception to this rule when the adult child is so mentally and/or physically disabled as to be unable to support himself. See e.g. Kruvant v. Kruvant, 100 N.J.Super. 107, 241 A.2d 259 (1968); Fincham v. Levin, 155 So.2d 883 (Fla.App.1963); Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31 (1947); O’Malley v. O’Malley, 105 Pa.Super. 232, 161 A. 883 (1932).

The Court in Reynolds based part of its decision on Murrah v. Bailes, 255 Ala. 178, 50 So.2d 735 (1951), which held that the term “children” as used in § 30-3-1 was clearly meant to apply only to minor children. The statute, however, does not express such a limitation, and such a narrow interpretation is unacceptable. In the frame of reference of the present case, we believe the legislature intended that support be provided for dependent children, regardless of whether that dependency results from minority, or from physical and/or mental disabilities that continue to render them incapable of self-support beyond minority.

Thus, we adopt the reasoning of the New Jersey Superior Court in the case of Kruvant v. Kruvant, supra, where the facts were similar to those of the case at bar. The case involved an appeal by a divorced husband from orders of the lower court reopening and modifying provisions for support of his son contained in a divorce decree. The husband argued that the New Jersey court did not have the jurisdiction under New Jersey's divorce statutes to order support for an adult child. The New Jersey court, however, said of its divorce statute:

“[It] contemplates support for the children of divorced parents who, but for the divorce, would have continued to be entitled to the support of their father. It stems from the presumed inability of such children, by reason of their minority, to provide for themselves. Children who are unable to care for themselves because of their minority are no less entitled to the court’s solicitude when they continue to suffer, after they have attained their majority, from a physical or mental disability which continues to render them incapable of self-support. Normal instincts of humanity and plain common sense would seem to dictate that in such cases the statutory obligation of the parent should not automatically terminate at age 21, but should continue until the need no longer exists. 67 C.J.S. Parent and Child § 17, p. 704 (1950); 39 Am.Jur., Parent and Child, § 40, p. 645, § 69, p. 710 (1942). However, we do not believe that the Legislature in enacting N.J.S. 2A:34-23, N.J.S.A., intended to confer jurisdiction upon the court to compel a husband or wife to support a child suffering from a disability which did not exist at the time of his attaining his majority but came about some time later.”

100 N.J.Super. at 113, 241 A.2d at 265-266. Further, we take note of the case of Strom v. Strom, 13 Ill.App.2d 354, 142 N.E.2d 172 (1957), where an Illinois court observed that the Illinois divorce statute did not specifically refer to children who are minors and held that where care is necessary to equip the child for adult life and the financial circumstances of the father are adequate, equity can continue its jurisdiction to compel support of an adult child.

Moreover, in addition to our expanded interpretation today of the term “children” in the Alabama child support statute, we recognize a duty imposed on parents to support their children who continue to be disabled beyond their minority. Accordingly, as urged by our Court of Civil Appeals, we follow the reasoning of our sister state, Florida, as expressed in the case of Fincham, v. Levin, supra, at 884:

“[Appellant] cites the annotation in 1 A.L.R.2d at page 914 in support of the proposition that the common law went no further than to impose on parents the duty of supporting their minor children, and that as a general rule there is no obligation on the part of a parent to support an adult child. This is unquestionably the rule with respect to able-bodied children. However, the same annotation (at page 921) reflects that most jurisdictions hold that where a child is of weak body or mind, unable to care for itself after coming of age, the parental rights and duties remain practically unchanged and the parent’s duty to support the child'continues as before. We concur with the trial court and Perla v. Perla, [58 So.2d 689 (Fla.1952)], in adopting that view.”

Not only does this appear to be the better view, it also accords with the legislative intent. Therefore, the judgment of the Court of Civil Appeals reversing the trial court’s order continuing child support for the disabled child beyond his majority is hereby reversed, and the cause is remanded to the Court of Civil Appeals for disposition not inconsistent with this opinion. Since respondent does not address in brief the correctness of the judgment of the Court of Civil Appeals affirming the trial court’s order increasing the amount of the child support payment from $50.00 to $300.00 per month, we do not consider this issue addressed by the petitioner.

REVERSED IN PART AND REMANDED.

TORBERT, C.J., and FAULKNER, JONES, SHORES, EMBRY and ADAMS, JJ., concur.

MADDOX, J., dissents.

ALMON, J., not sitting.


text:
    James Mitchell BLAIR v. Faye T. BLAIR (Brewington).
    Civ. 3601.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.
   HOLMES, Judge.

A portion of the prior opinion of this court has been reversed and remanded by the Supreme Court. On remand to this court, and in compliance with the Supreme Court’s opinion of December 16, 1983, 445 So.2d 294, this cause is now affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Ann Downey MORGAN v. J.T. MORGAN.
    Civ. 3949.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.
    Rehearing Denied Nov. 16, 1983.

      Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    Charles J. Najjar and J. Gary Pate of Najjar, Najjar, Boyd & Pate, Birmingham, for appellee.
   BRADLEY, Judge.

Ann Downey Morgan and J.T. Morgan were divorced in the Circuit Court of Jefferson County on April 29, 1980. The defendant was required to pay plaintiff $400,-000 in payment for her transfer of jointly held properties acquired during the marriage. This sum was to be paid in increments of $40,000; the first to be paid on or before June 1, 1980, and $40,000 on June 1 of each year thereafter until paid in full.

Defendant was also required to pay plaintiffs attorney the sum of $30,500 in attorney fees and, additionally, plaintiff was awarded $1,500 per month in alimony.

Plaintiff appealed the divorce decree to the court of civil appeals on August 7, 1980. Defendant did not file a cross-appeal. On May 6, 1981 this court affirmed the lower court’s decree and on June 10, 1981 denied plaintiff’s motion for rehearing.

Plaintiff then filed a petition for writ of certiorari in the Supreme Court of Alabama which was denied on August 28, 1981.

Pending the appeal to the court of civil appeals and to the Supreme Court of Alabama, the defendant continued to pay alimony in the amount of $1,500 per month as provided in the final judgment of divorce. Defendant, however, did not pay the $40,000 installments due on June 1, 1980 and June 1, 1981, or the attorney’s fees. Neither plaintiff nor defendant sought a stay of the trial court’s order or filed a supersedeas bond. After the su: preme court denied the petition for writ of certiorari, the defendant on November 25, 1981 paid the sum of $80,000 to plaintiff and in addition paid the sum of $30,500 as attorney’s fees. The defendant did not pay any interest on these sums.

In the present case the ex-wife filed a complaint for declaratory judgment asking the court to decide whether the final judgment of divorce of April 29, 1980 was a final judgment upon which interest accrued pursuant to Alabama law. The ex-wife also requested the court to decide whether her appeal of the April 29, 1980 judgment would stay the accrual of interest on the $400,000 judgment and the $30,500 attorney’s fees. The ex-husband filed a motion for summary judgment which was granted by the Jefferson County Circuit Court on February 28, 1983.

The first issue argued by plaintiff is whether the $400,000 awarded to her as a property settlement is such a final judgment as will support the accrual of interest; and if so, does interest accrue on the $400,000 judgment from the date of its entry, i.e. April 29, 1980, or does interest accrue only on each $40,000 installment which is due and unpaid.

We consider that the divorce decree, making the various awards to the parties, was a “final” decree and would support an appeal. See Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623 (Ala.1976). We find also that, once due, each $40,000 installment is a “final” judgment which will accrue interest so long as it is unpaid. See Martin v. Martin, 350 P.2d 270 (Okl.1960). See generally Annot., 33 A.L.R.2d 1455 (1954). Accordingly, the trial court erred in refusing to award any interest'to plaintiff. However, interest is to be calculated only on each $40,000 installment which remains unpaid after its due date, not on the entire $400,000 from the date of its entry.

The rationale for this conclusion is that in a divorce case where one party is awarded a money judgment in • lieu of a property settlement there is no previously existing obligation or liability. The obligation or debt is created or fixed by such judgment. Martin v. Martin, supra. In the case at bar the judgment fixed the obligation at $400,000 but specified that it was to be paid in ten yearly installments of $40,000. In other words the trial court fixed the total amount of the obligation at $400,000 but specified that it was to be paid over a ten year period. Consequently, the method of payment is just as important as the total amount to be paid.' So long as defendant pays the $40,000 yearly installments as they come due, he is in compliance with the judgment of the trial court and no interest would be due. However, if one of the yearly installments is not paid when due, interest would accrue from its due date and until paid.

In reply, defendant says that interest could not accrue on the unpaid $40,000 installments because plaintiff was unsuccessful in her appeal of the divorce decree. Whether a party to a divorce action who unsuccessfully appeals a “favorable” judgment on the ground of its inadequacy is entitled to demand interest which would otherwise have accrued during the penden-cy of the appeal is a matter of first impression in this state. An annotation on this subject may be found at 15 A.L.R.3d 411 (1967). It provides that the authorities are split but that the majority of the jurisdictions deny interest in such a situation.

After carefully studying this annotation, the authorities cited by counsel, and other authority, we conclude that plaintiff is entitled to interest even though her appeal was unsuccessful. Rule 37, Alabama Rules of Appellate Procedure, which governs this case, is patterned after Rule 37, Federal Rules of Appellate Procedure, which has been interpreted.to require interest. See Kotsopoulos v. Asturia Shipping Co., S.A., 467 F.2d 91 (2d Cir.1972). The same result has been reached in other states with comparable statutes. See, e.g., Woodmont, Inc. v. Daniels, 290 F.2d 186 (10th Cir.1961) (applying Utah law); Henley v. Mabry, 125 Ga.App. 293, 187 S.E.2d 309 (1972); Phillips v. Mills, 14 Md.App. 272, 286 A.2d 798 (1972). Finally, even if rule 37 was not compelling, we find the so-called minority view to be the better view. As pointed out in Kotsopoulos, because of the modern civil procedure rules and the availability of tender, much of the rationale behind the so-called majority view is no longer valid. 467 F.2d at 94.

The rate of interest chargeable on these installments, however, will vary. The installments due on June 1, 1980 and June 1, 1981 shall accrue interest at a rate of six percent pursuant to section 8-8-1, Code 1975, from the date they were due (June 1, 1980 and June 1,1981 respectively) until November 13, 1981; whereas from November 13, 1981 to November 25, 1981, the date both installments were paid, these sums will accrue interest at a rate of twelve percent pursuant to section 8-8-10 Code 1975, as amended. This section’s amendment was effective November 13, 1981, hence the new interest rate provided in this section must be applied after this date. It is settled in Alabama that statutes will not be construed to have retrospective effect unless the language of the statute expressly indicates the legislature so intended. Street v. City of Anniston, 381 So.2d 26 (Ala.1980). Therefore, the twelve percent rate shall not be applied retrospectively.

Plaintiff further contends that the $30,500 attorney’s fee is a judgment that bears interest at the legal rate until paid. In Alabama the court has the power to award an attorney’s fee as an integral part of the allowance for maintenance of the wife in a suit for divorce. Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637 (1964). This practice derives from the husband’s duty to support the wife. Hodson v. Hod-son, supra. Additionally, Alabama courts have held that there is no authority in this state to include attorney’s fees in costs. Mass Appraisal Services, Inc. v. Carmichael, 372 So.2d 850 (Ala.1979). Accordingly, the award of attorney’s fees must be considered a judgment or order of the court and will fall under the purview of section 8-8-10, Code 1975. The interest, consequently, will accrue at the legal rate of six percent as required by from the date of entry of the judgment on April 29, 1980 until November 13, 1981. As stated previously this statute was amended to increase the legal interest rate on judgments to twelve percent effective November 13, 1981. As a result, the attorney’s fees in the present case will accrue interest at the rate of twelve percent from November 13, 1981 to November 25, 1981 when paid.

The summary judgment granted in favor of defendant is reversed and the cause is remanded for entry of a judgment in favor of plaintiff consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: PER CURIAM.

text:
    Ex parte Ann Downey MORGAN. (Re Ann Downey MORGAN v. J.T. MORGAN).
    83-251.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for petitioner.
    Charles J. Najjar and J. Gary Pate of Najjar, Najjar, Boyd & Pate, Birmingham, for respondent.
   PER CURIAM.

Petition for writ of certiorari is denied. Our denial of the writ, however, is not to be construed as agreeing with that portion of the Court of Civil Appeals opinion, 445 So.2d 297, dealing with the retroactive application of Code 1975 § 8-8-10 (the statute raising the interest rate from 6% to 12% per annum on judgments becoming final on or after November 13, 1981, the effective date of the statute as last amended). See Jones v. Casey, 445 So.2d 873 (Ala.1983).

WRIT DENIED.

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


text:
    In the Matter of Lana NORWOOD, a minor. (Nancy NORWOOD v. William HUNTLEY and Pat Huntley).
    Civ. 3752.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Charles M. Allen, II and Bobby N. Bright, Montgomery, for appellant.

      No brief for appellees.
   PER CURIAM.

This is a child custody case.

The trial court granted the paternal aunt and uncle custody of a ten-year-old child. Additionally, the mother was apparently denied any visitation privileges. The mother appeals, and we affirm in part and reverse in part.

The dispositive issue is whether the trial court abused its discretion in its award of custody and in failing to grant some visitation privileges to the mother.

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

In 1978, the mother shot and killed her husband, the child’s father. She was found guilty of manslaughter in the first degree and sentenced to ten years in the penitentiary.

A very short time after the father's death, the paternal aunt and uncle petitioned the Circuit Court of Colbert County for temporary custody of the mother’s five-year-old child. The trial court granted the aunt and uncle temporary custody and the child has been with them ever since that time. In 1983, the trial court awarded permanent custody to the aunt and uncle.

It is undisputed that the child receives good care from her aunt and uncle. At the time of the hearing, the child was ten years old and from all the evidence it appears that she is well-adjusted and healthy. The mother testified that, should she receive custody, she would not object to the aunt and uncle visiting with the child.

The mother was paroled after serving two years in prison; in 1982 she was released from parole. The evidence shows that the mother has put considerable effort into rehabilitating herself with commendable results. The mother’s civil and political rights were restored soon after she was released from parole. During her marriage she had never worked outside the home, and she had only a high school education. Since her conviction she has completed quite a few hours of college courses. The mother is currently employed by the State of Alabama and has been working steadily since her release from prison. Since her release the mother has become involved in various church, civic, and community activities. It appears that the mother has pulled her life together and improved her lot. In fact, except for the tragic and serious crime of killing her husband, there is no evidence that is particularly unfavorable or negative concerning the mother.

In regard to the mother’s contention that the trial court abused its discretion in failing to award the mother custody, we affirm the trial court’s actions.

It is a well-known and settled principle of law that a trial judge in a domestic relations case will not be reversed by an appellate court save for plain and palpable error. Parsons v. Parsons, 337 So.2d 765 (Ala.Civ.App.1976). Additionally and more importantly, the guiding light in child custody cases is the welfare and best interest of the child. Parsons v. Parsons, 337 So.2d 765 (Ala.Civ.App.1976). With these principles of law in mind, this court cannot say that the trial court abused its discretion in regard to custody.

The child has lived over half her life with the aunt and uncle, and from the evidence she appears well-adjusted and healthy. There is no question that the child has an adequate home with the paternal aunt and uncle.

On the other side, the mother has only recently been released from the penitentiary where she was serving time for killing her husband, the child’s father. Even though the mother has rehabilitated herself to an extent, considering the totality of the circumstances, we cannot say that the trial court abused its discretion in failing to award the mother custody. Parsons v. Parsons, 337 So.2d 765 (Ala.Civ.App.1976).

As indicated previously, the mother contends that the trial court erred in failing to grant visitation privileges.

It has previously been held that, where the parent is deemed a fit and proper person, the natural parent should have reasonable visitation rights. Naylor v. Oden, 415 So.2d 1118 (Ala.Civ.App.1982). As indicated above, the negative or unfavorable evidence about the mother pertains to her killing the child’s father; that is undeniably a serious and atrocious crime.

However, it appears that the mother has begun to reform and rehabilitate herself to a great extent. The people who have been in contact with her since she was convicted in 1978 had nothing but positive things to say about the mother. The negative testimony comes from the paternal aunt who is understandably somewhat less than generous towards the mother. While the mother’s actions in the past and other factors as earlier indicated are serious enough to support the trial court’s decision as to custody, in view of the mother’s efforts at rehabilitation, we believe that some reasonable visitation should have been allowed the mother.

Because of the great deference accorded the rights of natural parents and the particular facts of this case, this court has no alternative but to find that the trial court abused its discretion in failing to grant the mother at least some restricted or limited visitation privileges.

The child is aware that she has a natural mother who wants to visit her; she is aware of the circumstances involved in her separation from her mother and why she lives with her aunt and uncle. The mother has served her time in the penitentiary and she has taken every effort to rehabilitate herself and re-establish contact with her child; she has worked to become self-sufficient and able to care for her child. It is clear to this court that the best interests and welfare of the child could not be served by denying the mother some reasonable visitation.

Finally, the mother, through able counsel, has raised a constitutional issue, i.e., due process violation pertaining to certain prior proceedings. Suffice it to say, these proceedings occurred years ago and concerned temporary custody while the mother was in jail. In view of the apparent untimeliness of these issues and other factors, this issue is not properly before this court. Furthermore, it has been held that a child may be taken from a parent’s custody temporarily by a summary proceeding, as long as an adequate remedy is available by which the parent may afterwards have her rights protected. Ex parte White, 245 Ala. 212, 16 So.2d 500 (1944). See also Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App.1977) (rights of parents to due' process).

We would be remiss in not commenting that appellees have not favored this court with a brief. The appellant, as indicated, contends in brief that the trial court erred in the areas of custody and visitation mentioned above. This court has carefully read the record. It appears to this court that clearly custody was an issue at trial. While it is not as clear that visitation was an issue, the evidence when considered with the entire pleadings convinces this court that the learned and distinguished trial court was apprised of this visitation issue and did in effect rule that visitation was not warranted.

This case is affirmed in part, reversed in part, and remanded for entry of a judgment or proceeding not inconsistent with the above.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the Judges concur.