PUGH v. STATE, 292 Ala. 298 (1974)

PUGH v. STATE, 292 Ala. 298 (1974)
293 So.2d 828

Lenden PUGH v. STATE of Alabama.

SC 637.Supreme Court of Alabama.
April 25, 1974.

Appeal from the Inferior Court, Escambia County, Douglas S. Webb, J.

John L. Lawler, Howell, Johnston, Langford Finkbohner, Mobile, for appellant.Page 299

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence as proof of said act, transaction, or event, if it was made in the regular course of any business, and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term “business” shall include business, profession, occupation, and calling of every kind. Code of Alabama (Recomp. 1958) Title 7, Section 415; Ala. Great So. RR. Co. v. Baum, 249 Ala. 442, 31 So.2d 366. A father has a duty to support and maintain his minor child reasonably according to his means. Boswell v. Boswell, 280 Ala. 53, 189 So.2d 854; Brock v. Brock, 281 Ala. 525, 205 So.2d 903; Cowen v. Cowen,259 Ala. 37, 65 So.2d 196; Code of Alabama (Recomp. 1958) Title 27, Section 12(4). The allowance contemplated by Title 27, Section 12(4) is reasonable maintenance of the minor child and an allowance of more than one-half of the father’s estate is generally an abuse of discretion on the part of the trial court. Phillips v. Phillips, 221 Ala. 455, 129 So. 3.

William J. Baxley, Atty. Gen., Mary Lee Stapp, Carol F. Miller, Asst. Attys. Gen., Montgomery and Hugh M. Caffey, Jr., Brewton, for appellee, the State.

The trial court cannot be put in error for not admitting into evidence an exhibit the admissibility for which no proper predicate was laid. Code of Alabama 1940, (Recompiled 1958) Title 7, Section 415; Meriwether v. Crown Investment Corp.,289 Ala. 504, 268 So.2d 780; Powell v. Atlantic Coast Line R. R. Co., 274 Ala. 533, 150 So.2d 179; Bear v. Swift, 259 Ala. 668,68 So.2d 718; Pierce v. State, 42 Ala. App. 53, 151 So.2d 793; McElroy, The Law of Evidence in Alabama (2nd Ed.) Vol. 2, ? 254.01, pp. 253-260. The Business Records Act does not operate to admit evidence which is inherently inadmissible. Public Natl. Life Ins. Co. v. Highsmith,47 Ala. App. 488, 256 So.2d 912; Pierce v. State, 42 Ala. App. 53,151 So.2d 793; Bear v. Swift, 259 Ala. 668, 68 So.2d 718. The Court is bound by the record and cannot consider statements in brief which are not supported by the record. King v. Smith,288 Ala. 215, 259 So.2d 244; Central of Ga. Ry. Co. v. Ashley,159 Ala. 145, 48 So. 981; McKinley v. McKinley, 277 Ala. 471,172 So.2d 35; Coleman v. Estes, 281 Ala. 234, 201 So.2d 391; Parsons v. Parsons, 284 Ala. 105, 222 So.2d 360; 2 Ala.Dig. Appeal Error, 714(5). The amount of child support ordered is within the sound discretion of the trial court. Ellison v. Ellison, 48 Ala. App. 80, 261 So.2d 911.

MADDOX, Justice.

This is a paternity proceeding. A jury found Lenden Pugh was the father of a child born April 25, 1971, to Faye Braswell. The trial court entered a judgment finding Pugh was the father of the child, and after a hearing on the amount of support which Pugh should be ordered to pay, the trial court decreed that a reasonable amount would be $40 per week. The court also awarded $600 as the reasonable expenses arising out of the pregnancy and confinement. The method of payment was ordered, as follows:

“It is therefore ORDERED, ADJUDGED and DECREED by the Court that Lenden Pugh pay to the Clerk of the Circuit Court of Escambia County, Alabama, during the week of February 5, 1973, the sum of $100.00 with $40.00 of such sum to be weekly child support and $60.00 of such sum to be applied to the deficit found to exist; that following the payment directed to be paid during the week of February 5, 1973, there will remain a deficit in the amount of $4,300.00. It is ORDERED that commencing within the week of February 5, 1973, andPage 300
continuing each week thereafter for 51 consecutive weeks, Lenden Pugh is directed to pay to the Clerk of the Circuit Court of Escambia County, Alabama, the weekly sum of $100.00 with $60.00 of such payment being applied to the deficit of $4,320.00 and $40.00 being applied to weekly child support payments; that during the week of February 4, 1974, the said Lenden Pugh shall pay to the Clerk of the Circuit Court of Escambia County, Alabama, the entire balance of the deficit which will then stand in the amount of $1,240.00 plus the additional sum of $40.00 due as child support; thereafter the said Lenden Pugh will pay the weekly sum of $40.00 to the Clerk of the Circuit Court of Escambia County, Alabama, which such payments to continue during the minority of Charlton Clay Braswell or until such time as this judgment has been modified as provided by law.”

Pugh argues that the amount awarded is excessive and that the trial judge abused his discretion. We find no merit in this contention.

Pugh also argues that the trial court committed reversible error in refusing to allow into evidence a log book or record which he had kept as a truck driver for his employer. He claimed the log book would show that he was not at the place where Faye Braswell testified conception occurred, at the time she testified conception took place. The log book or document is not included as a part of the record on appeal. Consequently, we cannot review the ruling of the trial court. Williams v. Schaeffer, 262 Ala. 636, 80 So.2d 722 (1955). We do note from Pugh’s testimony that he was allowed to use his log book to refresh his recollection and to testify that he was not with Faye Braswell during the time of her conception.

Having considered the argued assignments of error, we find no error. The judgment of the trial court is due to be affirmed.