Ex parte Jones

• Decision Date: 20 December 1991
• Parties: Ex parte Bobby JONES. (Re Bobby JONES v. Esther Faye WILLIAMS). * 1901116.
• Court: Alabama Supreme Court

Page 608

592 So.2d 608

Ex parte Bobby JONES (Re Bobby JONES v. Esther Faye WILLIAMS). ^*

1901116.

Supreme Court of Alabama.

Dec. 20, 1991.

Demetrius C. Newton, Birmingham, for appellant.

J. Scott Vowell of Vowell & Meelheim, P.C., Birmingham, for appellee.

HORNSBY, Chief Justice.

In Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989), this Court held that Alabama trial courts "have jurisdiction to require parents to provide post-minority support for college education to children of a marriage that has been terminated by divorce." In the present case, we are called upon to decide whether the principle established in Bayliss encompasses the situation where the child is born out of wedlock and the parents have not subsequently married.

Darlene Williams was born out of wedlock to Esther Faye Williams on March 25, 1972. A paternity action instituted by Esther in 1973 established Bobby Jones as Darlene's father, and he was required to pay the mother $43.75 per month as child support. As the result of a modification proceeding in 1977, the child support obligation was increased to $20.00 per week and Jones was required to provide medical insurance for Darlene. In 1989, Esther filed another petition to modify Jones's child support obligation. She sought an increase in the child support payments to meet Darlene's dental expenses and future college education expenses. A trial court referee ordered Jones to pay $350.00 per month as child support until Darlene reached the age of majority or until she reached the age of 21 if she attended an accredited college. The trial court, upon appeal of the referee's decision, ordered Jones to pay $475.00 per month as child support until Darlene reached her 19th birthday. Upon reaching age 19, Jones was to pay $475.00 each month Darlene was enrolled in college, until her 23rd birthday.

Upon appeal, Jones relied on this Court's decision in Ex parte Bayliss, 550 So.2d 986 (Ala.1989), and claimed that the trial court had erred in ordering him to provide post-minority support for college education expenses in circumstances not involving divorce. The Court of Civil Appeals affirmed, holding that the father of a child born out of wedlock could be required to provide the child post-minority support for a college education.

Jones petitioned this Court for a writ of certiorari. We granted the petition, and now affirm the judgment of the Court of Civil Appeals.

Initially we recognize that our recent decision in Ex parte Barnard, 581 So.2d 489 (Ala.1991), limited the trial courts' jurisdiction to award or modify child support to provide post-minority support for college education to cases in which a petition for the award or modification is made prior to the child's reaching the age of majority. In the present case, Darlene was 18 years of age, not yet at the age of majority in Alabama, when her mother filed the petition for modification of child support at issue. Thus, the child support petition meets the mandate of Barnard.

We further note that the characterization of Darlene as an illegitimate child is irrelevant to the disposition of this case. It is firmly established in this State that parental obligations do not differ with regard to whether the parents of the child are married. Harris v. State, 356 So.2d 623 (Ala.1978). In fact, we have held that "the ultimate objective of the [Uniform Parentage Act, Ala.Code 1975, § 26-17-1 et seq.,] is to promote full equality for all children be they legitimate or illegitimate." Ex parte Presse, 554 So.2d 406, 411 (Ala.1989).

With any consideration of legitimacy removed from this case, we find no basis for distinguishing between the character of the familial relationships in this case and those we recognized in Bayliss. Further, contrary to Jones's contention, our decision in Bayliss did not depend on the fact that the parties to that proceeding were divorced. Our decision did, however, depend on the existence of the parent-child relationship. Therefore, we hold that the "college education exception" to the general rule that a "parent has no duty to contribute to the support of his or her child after that child has reached the legislatively prescribed age of majority," Bayliss, 550 So.2d at 992, applies as well where the parents were not married at the time of the birth of the child and were not married thereafter.

In Bayliss, we set out the factors a trial court shall consider in determining whether to order a noncustodial parent to provide post-minority support to his children for a college education:

"[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 [and] ... [i]n 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."

Bayliss, 550 So.2d at 987. Aside from the reference to the dissolution of marriage, we believe that the factors we require the trial court to consider in the context of support for children of divorced parents are no less applicable in the situation where the parents have never married. In either circumstance, the existence of a legal parent and child relationship is the focal point of our analysis.

We agree with the Court of Civil Appeals that the trial court properly considered the factors set out above in arriving at its conclusion. Therefore, the judgment of the Court of Civil Appeals is affirmed.

AFFIRMED.

MADDOX, STEAGALL and KENNEDY, JJ., concur.

HOUSTON, J., concurs specially.

ALMON, SHORES, ADAMS and INGRAM, JJ., dissent.

HOUSTON, Justice (concurring specially).

As the author of the majority opinion in Ex parte Bayliss, 550 So.2d 986 (Ala.1989), I find that the premise upon which Justice Adams bases his dissent is faulty. It is based upon there being no support in statutory law for the majority opinion; this is not correct.

In his dissent, Justice Adams's historical account of the Parentage Act and the Non-support Act is interesting and instructive; however, it does not make his dissent, which is based on a faulty premise, correct. The dissent is premised on the majority's holding being forbidden by statute, specifically, Ala.Code 1975, § 26-17-8, which provides:

"(a) The father's liabilities for past education and necessary support are limited to a period of two years next preceding the commencement of an enforcement action under this chapter unless an order of support has been previously entered.

"(b) An action to determine paternity for the purposes of obtaining support shall not be brought after the child attains age 19.

"(c) The provisions of this section and section 26-17-6 do not extend the time within which a right of inheritance, or a right to succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates or to the determination of heirship, or otherwise."

How, pray tell, does the majority opinion "violate[ ] both the spirit and the letter of § 26-17-8"? It does not. The only subsection of this Code section that could apply is (b). This action was filed before the child attained age 19. As a matter of fact, all actions for post-minority support for college education must be filed before the child attains age 19. Ex parte Barnard, 581 So.2d 489 (Ala.1991).

ADAMS, Justice (dissenting).

I respectfully dissent. The majority opinion, on the authority of Ex parte Bayliss, 550 So.2d 986 (Ala.1989), holds that henceforth "Alabama trial courts 'have jurisdiction to require parents to provide post-minority support for college education to children,' " whether the parents are divorced or have never married. This holding finds no support in statutory law. On the contrary, it is forbidden by statute. The holding of the majority, therefore, violates the applicable statutory law and there are grave questions regarding its constitutionality. Because of the seriousness of these criticisms, I shall set forth my reasoning in some detail.

I. Statutory Analysis

The jurisdiction of trial courts to order child support for illegitimate children is currently defined by the Alabama Uniform Parentage Act, Ala.Code 1975, §§ 26-17-1 to -21 ("Parentage Act"). The Parentage Act was drafted specifically to provide a "civil cause of action in the courts of this state for the determination of paternity for the purposes of support and other reasons." Act No. 84-244, 1984 Ala.Acts 375. Section 26-17-2 declares the object of the Act, which is to apply the consequences of the "parent and child relationship ... equally to every child and to every parent, regardless of the marital status of the parents." Most pertinent for our discussion is § 26-17-8(b), which provides that "[a]n action to determine paternity for the purposes of obtaining support shall not be brought after the child attains age 19." Although it is unnecessary to look further than this section to conclude that the legislature intended to remove from trial courts the jurisdiction to order post-minority support for illegitimate children, an examination of the legislative background of the Parentage Act is enlightening.

The first predecessor of the Parentage Act was passed on December 13, 1811, by the General Assembly of the Territory of Mississippi. The Act of 1811 Concerning Bastardy, Act No. 7 of the Mississippi Territorial Legislature of 1811 ("Bastardy Act"), which was the first statute aimed at providing support for illegitimate children in Alabama, prescribed a procedure for the determination of paternity. ¹ In relevant part, the Act provided:

"[...