Ex parte Bayliss

• Decision Date: 09 June 1989
• Parties: Ex parte Cherry R. BAYLISS. (Re Cherry R. BAYLISS v. John Martin BAYLISS). 88-616.
• Court: Alabama Supreme Court

Page 986

550 So.2d 986

Ex parte Cherry R. BAYLISS.

(Re Cherry R. BAYLISS v. John Martin BAYLISS).

88-616.

Supreme Court of Alabama.

June 9, 1989.

Rehearing Denied July 14, 1989.

Frank M. Bainbridge of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for petitioner.

Stephen R. Arnold of Durwood & Arnold, Birmingham, for respondent.

HOUSTON, Justice.

We granted certiorari in this case to address the following issue: In Alabama, does a trial court have jurisdiction to require parents to provide post-minority support for college education to children of a marriage that has been terminated by divorce?

The trial court does have that jurisdiction. In a proceeding for dissolution of marriage or a modification of a divorce judgment, a trial court may award sums of money out of the property and income of either or both parents for the post-minority education of a child of that dissolved marriage, when application is made therefor, as in the case at issue, before the child attains the age of majority. In doing so, the trial court shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child's commitment to, and aptitude for, the requested education. The trial court may consider, also, the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child's relationship with his parents and responsiveness to parental advice and guidance.

Patrick Bayliss was born of the marriage of Cherry R. Bayliss ("mother") and John Martin Bayliss III ("father"). This marriage was terminated by divorce when Patrick was 12 years old. When Patrick was 18, his mother filed a petition to modify the final judgment of divorce; that petition, as amended, alleged:

"(5) That the child, Patrick Bayliss, completed high school at a private school in Birmingham, Alabama, The Altamont School, with an outstanding record and graduated with honors. That after graduation, said child sought admission to, and was accepted as a student at a four-year institution of higher learning, namely, Trinity College, located in Hartford, Connecticut. That the child, Patrick Bayliss, enrolled in Trinity College in the Fall of 1987, has successfully completed his first semester and as of the date hereof, is attending Trinity College. That the said minor child desires and deserves to be allowed to complete a four-year college education.

"(6) That the child, Patrick Bayliss, is now and after he attains nineteen (19) years of age will continue to be a 'dependent' child of John Martin Bayliss, III, and absent support from his said father, the said child will not be able to complete his college education. The said minor child was not self-supporting or self-sustaining at the time of the Final Decree of Divorce, is not self-supporting or self-sustaining as of the date hereof, and will not be self-supporting or self-sustaining until he has completed his college education. That the plaintiff lacks the funds to finance the college education for the child, Patrick Bayliss.

"(7) That the defendant, John Martin Bayliss, III, the father of Patrick Bayliss, is an extremely wealthy individual, having a net worth in excess of One Million Dollars ($1,000,000.00). The defendant had total income in 1986, the last year for which a Federal Tax Return is available, in excess of Three Hundred and Seventy Thousand Dollars ($370,000.00), and in excess of Three Hundred Thirty Thousand Dollars ($330,000.00) for 1985. That the defendant has no substantial debts and has sufficient estate, earning capacity, and income to enable him to pay the cost of a college education at Trinity College without undue hardship.

"(8) That both the plaintiff and defendant attended colleges and universities and that but for the divorce in this cause, the defendant father, in all likelihood, would have paid and provided for a college education of the type and kind being pursued by Patrick Bayliss.

"(9) That the defendant has failed and refused to contribute any sum toward the college expenses of the child, Patrick Bayliss...."

The trial court, in its order denying the petition to modify, entered the following findings, which are fully substantiated by the record on appeal in this case:

"Patrick Bayliss is in good physical and mental health, is in no way disabled, and was an outstanding student in high school, having graduated in the spring of 1987 with honors, academic, athletic and otherwise from a well regarded private school in Birmingham, Alabama, the Altamont School. The said child desires to pursue a college education, and from the evidence presented, is fully able to satisfactorily complete a college education and would greatly benefit from a college education."

The trial court then found that Patrick had attained 19 years of age; and, therefore, held that, as a matter of law, the court was without authority to order the father to pay and be responsible for any part of the cost of his son's college education, since Patrick did not come within the definition of the term "children" or "child" or "dependent child" or "dependent children" as those terms are used in the statutes and decisions of the appellate courts of Alabama.

The Court of Civil Appeals affirmed, 550 So.2d 984 (1989) relying on its case of English v. English, 510 So.2d 272 (Ala.Civ.App.1987), which clearly held that a parent is under no legal obligation to educate an adult child unless the child is physically or mentally disabled, or an executed agreement is reached, or an oral agreement requiring this is announced in open court. No one petitioned this Court for a writ of certiorari to the Court of Civil Appeals in English, supra. The mother did petition for such a writ in this case; we granted the petition, and we now reverse the judgment of the Court of Civil Appeals on this issue.

Alabama Code 1975, § 30-3-1, provides, in pertinent part:

"Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper...." (Emphasis supplied.)

While jurisdiction over minor children has been claimed by courts of equity, independent of any statute, on the ground that the government is the parens patriae, ¹ Hansford v. Hansford, 10 Ala. 561, 563 (1846), any jurisdiction of a trial court to require a parent to provide post-minority support for a child's college education is conferred by statutes, expressly or by implication. The Legislature of Alabama has not enacted a specific statutory change in its domestic relations laws to permit post-minority support for college education. If, in Alabama, the court that rendered the initial decision in the divorce retains a continuing, equitable jurisdiction over the issues and parties so that it can in the initial decision or in a modification thereof, order either or both parents to provide post-minority support for college education for a child of the marriage terminated by that divorce, it must derive such jurisdiction from the absence of restrictive language in Alabama Code 1975, § 30-3-1.

In Ex parte Brewington, 445 So.2d 294 (Ala.1983), this Court held that the term "children" in § 30-3-1 did not apply only to "minor" children. Mr. Justice Beatty, in overruling cases that had given the word "children" that limited definition, wrote, for a majority of the Court:

"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."

445 So.2d at 296.

Looking at the word "children," "[i]n the frame of reference of the present case," we note that the pertinent portions of § 30-3-1 have been part of the codified law of Alabama continuously since Alabama Code 1852, § 1977. From 1852 to 1975, the age of majority in Alabama was 21 years.

We have found no early Alabama appellate court cases that even discussed whether a college education was a "necessary" that a divorced parent had to provide a minor child. The earliest case that we have found involving the question of whether a college education is a necessary is Middlebury College v. Chandler, 16 Vt. 683, 42 Am.Dec. 537 (1844). In that case, which involved a suit brought by Middlebury College against the father of a minor college student for the student's tuition and other college expenses, the Vermont Supreme Court refused to hold that a college education was a necessary, for the following reasons:

"The practical meaning of the term [necessaries] has always been in some measure relative, having reference as well to what may be called the conventional necessities of others in the same walks of life with the infant, as to his own pecuniary condition and other circumstances. Hence a good common school education, at the least, is now fully recognized as one of the necessaries for an infant. Without it he would lack an acquisition which would be common among his associates, he would suffer in his subsequent influence and usefulness in society, and would ever be liable to suffer in his transactions of business. Such an education is moreover essential to the intelligent discharge of civil, political, and religious duties.

"But it is obvious that the more extensive attainments in literature and science must be viewed in a light somewhat different. Though they tend greatly to elevate and adorn personal character, are a source of much private enjoyment, and may justly be expected to prove of public utility, yet in reference to men in general they are far from being necessary in a legal sense. The mass of our citizens pass through...