Appellee was granted a divorce from appellant by decree dated June 4, 1970. Custody of two minor children was awarded to appellee. Appellant was directed to pay $100 per month as child support.
In response to motion to modify and after hearing, decree was entered on April 9, 1971, directing appellant to pay to appellee additional sums per month during the school year of 1971 for payment of tuition for the children enrolled in private school.
By petition to modify filed on August 13, 1971, appellee requested additional monthly sums of support for cost of tuition of the children attending private school. Upon oral hearing, the court directed an increase of $25 per month in support for use for educational purposes. Appellant filed motion for rehearing, presenting among other grounds, that the order increasing support for the purpose of paying tuition at a private school with an all white enrollment constituted state action encouraging and lending assistance to discrimination in education on a racial basis contrary to the Fourteenth Amendment of the United States Constitution.
The motion for rehearing was overruled and appellant appeals.
The evidence presented to the trial court briefly was that in 1971, appellant had personally enrolled one of the children in a private school and appellee had enrolled the other. Appellant had provided some of the tuition required while appellee had provided the remainder. The children had not done well scholastically in public school. There had been much violence and disorder in the public schools to which they had been assigned. The private school was as close or closer to the home of the children than was the public school. The court had examined the children in chambers by agreement of the parties and their attorneys. Of course, the record of this examination is not in the record on appeal.
The testimony of the mother was that she did not send the children to the private school to avoid integration in the public school, but her purpose was to secure for them a better opportunity to learn in smaller classes, free from violence, disorder and unrest. She stated that she knew she would be unable to send them to college and wanted them to get the most out of their secondary and high school education. Appellant presented testimony that appellee had stated she did not want her children *450to go to school with “niggers.” Appellee denied such statement.
The essential portion of the decree below is as follows:
“ . . . Upon conference with the children by the court in chambers, with the consent of both parties and their respective attorneys, and after having heard the testimony and considered the demeanor of the witnesses and upon consideration of the best interest of the children, it is ordered, adjudged and decreed by the court that the motion for educational expenses of children filed by the complainant be granted, and based upon the needs of the minor children are such that an increase in the amount of child support is necessary and, therefore, the court further orders that the support payments be increased by $25.00 per month, retroactive to the month of October 1971 ...”
Upon the hearing of the motion for rehearing, testimony was presented to the court that the private school attended by the children was founded in 1971. It operated solely from payment of tuition by its students. The tuition was $35 per month, plus a $50 registration fee. No Negro children attended the school.
On Motion to Dismiss
Motion to dismiss the appeal has been filed by appellee on the ground that it was not timely filed. The motion avers that the motion for rehearing was denied on August 25, 1972 and appeal was not filed until November 27, 1972.
We find such ground insufficient for dismissal. This is not an appeal from a decree of divorce subject to the provisions of Title 7, §§ 789-789(1) of the Code, but rather is governed by the provisions of Title 7, § 788. Moor v. Moor, 211 Ala. 56, 99 So. 316; Vinson v. Vinson, 260 Ala. 254, 69 So.2d 431. Therefore, the motion to dismiss is denied.