Hooker v. Hooker

• Decision Date: 22 November 1991
• Citation: Hooker v. Hooker, 593 So.2d 1023 (Ala. Civ. App. 1991)
• Parties: William Edward HOOKER v. Sallie Ruth Lide HOOKER. 2900323.
• Court: Alabama Court of Civil Appeals

Page 1023

593 So.2d 1023

William Edward HOOKER v. Sallie Ruth Lide HOOKER.

2900323.

Court of Civil Appeals of Alabama.

Nov. 22, 1991.

Rehearing Denied Dec. 27, 1991.

John W. Kelly III, Selma, for appellant.

Mark A. Cavanaugh, Montgomery, for appellee.

ROBERTSON, Presiding Judge.

William Edward Hooker, Sr. (father) filed a complaint for divorce against Sallie Ruth Hooker (mother), alleging an irreconcilable incompatibility of temperament. The mother counterclaimed, alleging that the marriage should be dissolved because of adultery committed by the father.

After an ore tenus proceeding, the trial court entered a judgment of divorce based on the mother's counterclaim and on the grounds of adultery. Custody of the parties' two minor children was awarded to the mother, subject to the father's visitation rights. Furthermore, the trial court ordered the following:

"4. That the [father] shall pay child support to the [mother] in the amount of $789.36 per month for the support and maintenance of the two minor children and the oldest child who is presently a full time student at Auburn University, ... until such time as the minor children shall reach the age of majority, marry, or becoming self-supporting.... The [father] shall also pay for one-half of all reasonable educational expenses of the parties' children while said children attend college. These expenses shall include tuition, books, and board."

The father appeals and argues that the trial court erred in requiring the father to pay child support and college expenses for a child who had reached majority prior to the filing of the divorce complaint; that the trial court erred in requiring the father to pay child support for his two youngest children as long as they were "continuing their education" and extending past the age of majority; that the trial court erred in requiring the father to pay one-half of the college expenses for his three children where the record contained no evidence of the children's commitment to, and aptitude for, a college education; that the trial court erred in computing the child support in accordance with Rule 32, A.R.J.A.; and, that the trial court erred in granting the divorce on the grounds of adultery.

First, in considering child support generally, we note that our supreme court in Ex parte Brewington, 445 So.2d 294 (Ala.1983), allowed a trial court to order support to be paid by a non-custodial parent for a child who is, at the time of majority, dependent because of a physical or mental disability if that disability renders it incapable of self-support. In Ex parte Bayliss, 550 So.2d 986 (Ala.1989), the supreme court expanded Brewington to include an exception for college education expenses if application is made before the child reaches the age of majority and other standards are shown, i.e., that the child would have received a college education had not the marriage "been put asunder by divorce."

Here, Ed, the oldest child, reached majority status before the complaint for divorce was filed and, consequently, before application for post-minority educational support could have been made. Therefore we hold that the trial court erred in making such an award.

Since Ed is not eligible for post-minority educational support, and since he is not physically or mentally disabled, the father is not responsible for child support for Ed, and the trial court's award of such support is in error.

As stated earlier, the trial court ordered the father to pay one-half of the three children's reasonable educational expenses while the children attend college which shall include tuition, books, and board. Since the father already has been excepted from paying such an award for Ed's college education, our focus will be upon the payment of post-minority educational support for the two minor children.

The allowance in Bayliss for college expenses beyond the age of majority is predicated upon the trial court considering "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." Bayliss at 987.

As to Bayliss 's first primary factor, consideration of the...