
    Bobby Hugh TALLANT v. Sharon Jean TALLANT.
    Civ. 6911.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1990.
    Rehearing Denied March 7, 1990.
    Certiorari Denied June 1, 1990 Alabama Supreme Court 89-935.
    Leon Garmon, Gadsden, for appellant.
    Rowan S. Bone and Edward Cunningham, Gadsden, for appellee.
   RUSSELL, Judge.

This is an appeal from an order finding Bobby Hugh Tallant (appellant) in contempt of court.

The appellant challenged the findings and recommendations of the master/referee in an appeal to the circuit court, based on the issue of authority of the master/referee and not on the substance of the referee’s findings and recommendations. The trial court dismissed the appeal and affirmed the order of contempt of court. We affirm.

Sharon Jean Tallant, appellee, filed a petition to show cause why the appellant should not be held in contempt for failure to comply with certain provisions of the divorce decree. The appellant did not answer the petition, but, rather, filed an “objection to hearing before domestic referee” and followed with a counterclaim for child custody. The day before the hearing on the petition to show cause, the appellant filed a motion requesting a court reporter. The appellant did not appear for the hearing on his motion or for the hearing on the appellee’s petition. The master/referee took testimony and made a report to the trial court, which found the appellant in contempt of court. The appellant then filed a motion “to strike the transcript/report of the master/referee” and filed the notice of appeal to the trial court. The trial court dismissed the appeal and reaffirmed the previous order of contempt of court.

Initially, we note that a party found to be in civil contempt and not placed in jail must petition for relief by certiorari. In Vaughn v. Vaughn, 507 So.2d 960 (Ala.Civ.App.1987), this court stated that certio-rari, not appeal, is the proper method to review the trial court’s judgment of contempt if the contemnor is not incarcerated. However, on occasion the court will treat a notice of appeal as a petition for writ of certiorari but must limit the scope of review to questions of law and to whether the trial court’s finding is supported by any legal evidence. Vaughn, 507 So.2d at 961. The husband has not been incarcerated, and, therefore, we will choose to consider this appeal as a petition for writ of certio-rari.

The dispositive issue here is whether the referee had the authority to conduct hearings and make findings and recommendations. We have carefully reviewed the evidence and cases cited by the parties and pretermit a discussion of several sub-issues raised by the appellant as unnecessary in view of our limited standard of review.

We find no evidence in the record to support the appellant’s contention that Rule 53, Alabama Rules of Civil Procedure, has been violated in its application. We find Rule 53 ample authority for the appointment of a referee in that it allows, at the discretion of the court, for the appointment of masters, which includes a referee. As this court stated in Harp v. Harp, 462 So.2d 372 (Ala.Civ.App.1984), the appointment of a master is discretionary with the court, and a master hearing testimony as to the division of property in a divorce proceeding is not only appropriate, but appears to be common practice. As to its application here, we find computation of child support arrearage to be a “matter of account” as contemplated by the rule and that the referral was appropriate.

As to the issue of whether the referee’s appointment and action violate the due process clause of the 14th amendment' of the U.S. Constitution, we find that the appellant improperly raises the issue since it is raised for the first time on appeal. See Harp, 462 So.2d 372.

Therefore, in view of the above and our standard of review, we find that the domestic referee has the authority to conduct hearings and make findings and recommendations and that the trial court’s order is due to be affirmed.

AFFIRMED.

INGRAM, P.J., concurs.

ROBERTSON, J., dissents.

ROBERTSON, Judge,

dissenting.

My reading of Rule 53, Alabama Rules of Civil Procedure, does not provide for, nor permit, all domestic relations cases to be heard by a full-time master/referee.

“(b) Reference. A reference to a master shall be the exception and not the rule. In actions to be tried ... without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.”

The use of masters is to aid judges in the performance of specific judicial duties and not to displace the court. LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), reh’g. denied, 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 560 (1957).

This case, not being properly before the referee whose findings were the basis for the trial court’s actions, should be reversed and remanded for a trial de novo.

Therefore, I respectfully dissent.

ON APPLICATION FOR REHEARING

RUSSELL, Judge.

On application for rehearing, the appellant contends that this court erred in its interpretation of Rule 53, A.R.Civ.P., in that the rule does not allow for a full-time referee to whom all domestic relations cases are referred. On revisiting our opinion, we find the same to state accurately today’s law based on the facts established by legal evidence contained in the record in this case. That is to say that we find the record devoid of any legal evidence supporting the contention that the referee in this case is a full-time referee to whom all cases are referred.

As to the contention that this case was improperly before the referee and that the findings and recommendations are void ab initio, we have again read very carefully the numerous cases confidently cited by the appellant. Not only are we unable to find even a scintilla of support for this contention, we find the cases swaying in the other direction.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

INGRAM, P.J., concurs.

ROBERTSON, J., dissents.  