Newman v. Newman

• Decision Date: 17 June 1994
• Citation: 667 So.2d 1362
• Parties: Danny J. NEWMAN v. Danielle NEWMAN. AV92000634, AV92000657.
• Court: Alabama Court of Civil Appeals

Page 1362

667 So.2d 1362

Danny J. NEWMAN v. Danielle NEWMAN.

AV92000634, AV92000657.

Court of Civil Appeals of Alabama.

June 17, 1994.

Rehearing Denied July 22, 1994.

Certiorari Quashed Aug. 25, 1995

Alabama Supreme Court 1931532.

Appeals from Houston Circuit Court, No. DR-92-1091; Michael Crespi, Judge.

Terry Bullard, Dothan, for appellant/cross-appellee.

Bryant F. Williams, Jr., Ozark, for appellee/cross-appellant.

THIGPEN, Judge.

This case involves a child support arrearage and the denial of post-minority support for college expenses.

Prior to becoming 19 years of age, Danielle Newman (daughter), by her next friend, James W. Allen (stepfather), filed a complaint on December 11, 1992, against her father, Danny J. Newman, seeking a child support arrearage and interest pursuant to her parents' divorce judgment, and also seeking post-minority support for her college expenses. She alleged that her parents were divorced, and that her mother, Cherie D. Allen, was deceased. She further claimed that her stepfather has had physical custody of her since her mother's death. The father filed a motion to dismiss on the grounds that the stepfather had not been appointed as the daughter's guardian or custodian, and that therefore, he had no standing to bring the action. The father asserted that he had attempted to comply with the child support provisions ordered in the divorce judgment, but that his checks were returned and he was advised by the court that "there was no one to pay it to since his former wife had died." The daughter became 19 years old prior to any ruling.

The trial court granted the father's motion to dismiss as to the stepfather, but allowed an amendment to substitute the daughter as the plaintiff since she had then reached the age of majority.

The trial court denied the daughter's request for a continuance for the purpose of obtaining more information for her case. Following a hearing, the trial court found that the father owed an arrearage for past due child support, entered a judgment for that amount for the daughter, and denied the daughter's request for post-minority support for educational expenses. After the daughter filed a post-judgment motion, the trial court amended the order to include interest on a recomputed arrearage. The father's post-judgment motion was denied, and he appeals. The daughter cross appeals.

The father's issue concerns whether the child support provisions of the divorce judgment can be enforced by the daughter against him, as custodial parent, after the death of the mother. The mother had been awarded custody and child support pursuant to the divorce judgment. Following her mother's death, the daughter, against the father's wishes, chose to live with her stepfather, who has no legal obligation or authority regarding the daughter's support and maintenance.

On cross appeal, the daughter raises numerous issues, stated dispositively as follows: (1) whether the trial court erred in dismissing the case brought by the stepfather as next friend of the daughter; (2) whether the trial court erred in denying her continuance to obtain additional evidence to support her petition for post-minority educational support; and (3) whether the trial court erred in denying post-minority educational support.

The father contends that at the death of the mother, he automatically became his daughter's legal custodian, and that neither the stepfather, nor the daughter, could enforce the provisions of the divorce judgment regarding child support. He does not argue that his legal obligation to support his daughter ended, and, in fact, he provides evidence of his willingness to support his child. He couches his argument in terms of whether the surviving divorced parent can be required to pay child support, which was ordered by the divorce judgment, directly to the child or to someone she chooses to live with against the surviving parent's wishes. Additionally, because of this peculiar fact situation, we are faced with considering whether a child of divorce may sue her surviving custodial parent for post-minority support for her college expenses.

This case presents multiple questions of first impression in Alabama. Cases involving children and families, including cases involving post-minority support, must be considered on a case-by-case basis. Butts v. Butts, 600 So.2d 1038 (Ala.Civ.App.1992). Therefore, the unusual facts in this case strictly narrow the holding in this case to the fact situation. We are not to be misunderstood as indicating that this exact result would occur in other similar but not identical situations.

Our research has revealed no Alabama cases determining whether the legal custody of a child of divorced parents automatically reverts to the noncustodial parent upon the death of the custodial parent. The law of some other jurisdictions is that upon the death of the custodial parent, the "right to custody immediately and automatically inures, or accrues, or reverts, to the surviving parent." W.W. Allen, Annotation, Right to Custody of Child as Affected by Death of Custodian Appointed by Divorce Decree, 39 A.L.R.2d 258, 260 (1955). See Brown v. Brown, 218 Ark. 624, 238 S.W.2d 482 (1951); Webb v. Webb, 546 So.2d 1062 (Fla.Dist.Ct.App.1989), review denied, 553 So.2d 1168 (Fla.1989); Whiteside v. Dickerson, 240 Ga. 54, 239 S.E.2d 377 (1977); Judd v. Van Horn, 195 Va. 988, 81 S.E.2d 432 (1954).

Numerous principles regarding custody emerge as guidance for this decision. In Alabama, there exists a presumption that "a natural parent has a prima facie right to the custody of his or her child." Ex parte McLendon, 455 So.2d 863, 865 (Ala.1984). That prima facie right to custody recognizes the presumption that, as a matter of law, the best interests and welfare of the child are served by maintaining parental custody. The presumption, however, does not apply after a voluntary forfeiture of custody or a prior judgment removing custody from the natural parent and awarding it to a nonparent. Michael v. Swords, 568 So.2d 836 (Ala.Civ.App.1990). See also McLendon, supra. In a custody dispute between a stepfather and a father after the mother's death, our Supreme Court has stated that the father's prima facie right to custody of his child may be overcome by clear and convincing evidence that the father is unfit or unsuitable for custody of his child. Ex parte Berryhill, 410 So.2d 416 (Ala.1982). In the case sub judice, no evidence indicates that the father is unfit, nothing indicates that he voluntarily forfeited his prima facie right to custody of his daughter, and no prior judgment awarded custody to a nonparent. Furthermore, custody is not disputed and was never challenged. The original divorce judgment contained no finding that the father was unfit; it simply awarded custody to the mother, who is now deceased. There is no indication that the stepfather ever sought custody or sought support for the daughter from her father following the mother's death. Although the father requested that the daughter live with him following her mother's death, the daughter chose to live with her stepfather. The stepfather, although not legally obligated, voluntarily supported the child. It appears that, at most, the stepfather merely allowed the child to reside with him after her mother's death and chose to serve in the role of an unobligated volunteer. See Deal v. Deal, 545 So.2d 780 (Ala.Civ.App.1989).

Although the record is devoid of information regarding the relationship of the father and the daughter before the mother's death, the evidence is undisputed that the father sought to establish a relationship with her after the mother's death. He attempted unsuccessfully to enlist the support and assistance of the maternal grandparents in building a relationship with his daughter. Against her father's wishes, the daughter chose to live with the stepfather and chose to have little contact with her father and her half-brother by her father's remarriage. The stepfather voluntarily supported the daughter and sought no assistance from the father until he began this action to seek an arrearage for what he claimed was past-due child support pursuant to the divorce judgment. Although there was some testimony that the stepfather intended to seek guardianship of the daughter, it is undisputed that the stepfather never sought legal guardianship or custody of the daughter. He chose to continue as a legally unobligated volunteer. Although the State may have exercised its power of parens patriae to enforce the divorce judgment for the benefit of the daughter during her minority, there was no evidence that it did so. See generally R.J.D. v. Vaughan Clinic, P.C., 572 So.2d 1225 (Ala.1990) (Adams, J., dissenting). Our research has revealed no authority in Alabama to allow a stepfather, a stranger to the divorce, to enforce the divorce judgment. Furthermore, the stepfather had no legal relationship to the daughter and he sought no assistance for her support outside the divorce judgment. It was not error for the trial court to dismiss the stepfather from this action. Furthermore, the daughter was permitted to proceed in this action, and she failed to show on appeal that any error complained of has injuriously affected her. Rule 45, A.R.App.P.

Nothing in the record indicates that anyone other than the father is this child's legal custodial parent. There was simply no one else seeking this child's custody or challenging the father's prima facie right to her custody. Therefore, it is clear that in the case sub judice, the father became the legal custodian of his daughter upon the death of the mother. We must now determine whether the child support provisions of the divorce judgment could be enforced in such a manner as to require the father to pay an arrearage directly to the child. One's obligation to support his minor child is so basic that it cannot be removed even by agreement or informal release. See Tucker v....