Christopher v. Christopher, 2111039.

• Decision Date: 21 December 2012
• Docket Number: 2111039.
• Citation: 145 So.3d 42
• Parties: Carolyn Sue CHRISTOPHER v. Charles Phillip CHRISTOPHER.
• Court: Alabama Court of Civil Appeals

145 So.3d 42

Carolyn Sue CHRISTOPHER

v.Charles Phillip CHRISTOPHER.

2111039.

Court of Civil Appeals of Alabama.

Dec. 21, 2012.

Kimberly Griffin Kervin, Prattville; and Kelly T. Lee, Prattville, for appellant.

Anne G. Burrows of Hand Arendall LLC, Athens, for appellee.

MOORE, Judge.

Carolyn Sue Christopher (“the mother”) appeals from a judgment of the Limestone Circuit Court (“the trial court”) requiring her to pay postminority educational support on behalf of her child, C.C.

Procedural History

The mother and Charles Phillip Christopher (“the father”) were divorced by a judgment of the trial court in 2010. At the time the divorce judgment was entered, the mother and the father had one adult child and two children who were still under the age of majority, C.C. and Ca.C. On April 18, 2011, four days before C.C.'s 19th birthday, the father filed a petition requesting that the trial court order the mother to pay a portion of C.C.'s postminority educational expenses. The mother filed an answer, in which she asserted that she was financially unable to contribute to C.C.'s college education and that the application of our supreme court's holding in Ex parte Bayliss, 550 So.2d 986 (Ala.1989), was unconstitutional. The mother served a copy of her answer upon the state's attorney general. SeeAla.Code 1975, § 6–6–227. After a trial, the trial court entered a judgment requiring the mother to pay 25% of C.C.'s college expenses. On January 29, 2012, the mother filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial; that motion was denied on February 7, 2012. The mother filed her notice of appeal on February 19, 2012.

Facts

At the commencement of the trial, the parties stipulated that C.C.'s net estimated college expenses total $9,435 per semester and that an existing college fund would be utilized before any contribution would be required from either parent.

The mother testified that C.C. is a student at the University of Alabama. She admitted that, during their marriage, she and the father had anticipated that their children would attend college. The mother testified that she is employed at “Growing Younger” earning between $400 and $500 a month and that she also earns $1,000 per month as a self-employed hairdresser. She testified that she had earned more as a hairdresser before the parties' divorce but that, due to the divorce, many clients had stopped using her as their hairdresser.

The mother testified that she had received $100,000 as her part of the equity in the marital home in the parties' divorce judgment but that she was using that money as the down payment on a new house that she would own with her new husband. She testified that the cost of the new house was more than $300,000. She further testified that she and her husband would be equally dividing the monthly mortgage payment on the new house but that he was not putting any money toward the down payment on the house. The mother testified that, in the parties' divorce judgment, she had also received $120,000 from one of the father's retirement accounts and an additional $10,000 in lieu of receiving any interest in another account. She also testified that she does not have a separate retirement account and that her only other asset is an automobile. The mother testified that she does not earn enough income to contribute to C.C.'s college education.

The mother testified further that, during the parties' marriage, the parties had not been able to afford to send their oldest child away to college, so he had attended Calhoun Community College his first year. She testified that the parties had put their oldest child's college expenses on a credit card. She testified that the father had been earning approximately $85,000 a year at that time and that she had been earning between $1,600 and $2,000 a month. She testified that, during the marriage, the father's income had paid the parties' bills and her income had been used simply for entertainment.

The mother testified further that, at the time of the trial, her monthly expenses totaled $2,475 and that she does not live an extravagant lifestyle. She testified that, when she and her family move into the new house, their monthly utility payments would increase and the house payment would be more than the rent she was paying at the time of trial. She later testified that she hoped the new house payment would be between $1,100 and $1,200 a month and that she would be paying one-half of that amount (between $550 and $600), as opposed to the $675 she was paying for one-half of the monthly rent at the time of the trial. She stated, however, that they had not yet obtained insurance on the house.

The father testified that his annual income from his primary employment had increased since the time of the parties' divorce from approximately $90,000 to almost $100,000 and that he had also earned an additional $3,000 per year working for an auction company. The father testified that, although the parties had stipulated at the divorce proceedings that the mother's monthly income was $2,100, the mother had testified that she was making more than that. He also testified that he had believed at that time that the mother was earning $2,100 a month based on the lifestyle they had lived and on their not having had to borrow money to send their oldest child to college. He admitted that he did not know what the mother's income was at the time of the trial of this matter. He testified, however, that he did not agree with the mother's testimony regarding her present monthly income and that he believed she is capable of contributing to C.C.'s college expenses.

The father admitted that the mother had lost customers when their “situation” became public before he actually filed for a divorce. He testified that she still had done “a lot of hair” while he was still living with her before filing for a divorce but that the number of clients had been somewhat reduced. He testified that he believed she was making more than $1,100 a month at the time of trial and that, to reach that level, her business must have dropped off “a lot” after the divorce. He testified that he had told some of the mother's clients what he thought had caused the parties' marriage to end, but, he said, he had also told them that he was fine with them continuing to go to her to get their hair done.

The father testified further that, when the parties' oldest child was in college, the father's income had been used to pay the house payment, the utilities, and other necessities. The father testified that he pays all three children's automobile-insurance premiums and cellular-telephone bills. He also testified that he does not pay any additional money above his child-support obligation for the parties' youngest child but that he usually gives her $20 when she visits. He testified further that, since the parties' divorce, he had purchased a house for $192,000 and that he had made a down payment of slightly more than 20% of the purchase price.

The father testified that he contributes $915 per month into his retirement account. He testified that he has $90,000 in one retirement account and that he also has another individual retirement account that, at the time of the trial, had a value of a little more than $200,000, although, he said, it had had a value of $300,000 a month before the trial. He testified that he owns two automobiles, a Honda and a BMW.

The father testified that he could use the mother's assistance in paying for C.C.'s college education. He testified, however, that he would work additional jobs in order to make sure C.C. obtained a college education.

Issues

On appeal, the mother argues (1) that the trial court erred in considering her remarriage to her current husband in ordering her to pay postminority educational support; (2) that § 30–3–1, Ala.Code 1975, through its application in Ex parte Bayliss, 550 So.2d 986 (Ala.1989), discriminates against children of nondivorced parents as a class, making it unconstitutional; (3) that the trial court's judgment requiring the mother to pay postminority educational support unconstitutionally discriminates against her, as a divorced parent, as to the exercise of her rights and is in direct conflict with Ex parte E.R.G., 73 So.3d 634 (Ala.2011); (4) that the trial court did not have jurisdiction to order the mother to pay any support for the benefit of C.C. because C.C. had reached the age of majority and has no mental or physical disability and, therefore, the award violates the separation-of-powers doctrine; and (5) that the trial court's judgment ordering postminority educational support resulted in an undue hardship for the mother.

Discussion

I.

In its judgment, the trial court stated, in pertinent part: “This court has examined the income of the parties, the potential earnings of the parties, distribution of assets by the parties following their divorce, the remarriage of the [mother] and whether this Order shall impose an undue hardship on the parties.” (Emphasis added.) The mother argues that the trial court erred in considering her remarriage to her current husband in ordering her to pay postminority educational support because, she says, “[a]t no time has any appellate court of the State of Alabama made the remarriage of the parent a factor to be considered in the award of a post-secondary education support for a child.” (Mother's brief, p. 23.)

In Ex parte Bayliss, supra, the supreme court held that one of the primary considerations a trial court must consider when awarding postminority educational support is “the financial resources of the parents.” 550 So.2d at 987. In McCarthy v. Popwell, 915 So.2d 56, 59 (Ala.Civ.App.2005), a plurality of this court reasoned that, because a stepparent has no legal obligation to support a child of his or her spouse's former marriage, the income of a noncustodial parent's new spouse could not be considered part of the financial...