Ogle v. Ogle

Decision Date05 September 1963
Docket Number6 Div. 657
Citation275 Ala. 483,156 So.2d 345
PartiesJames Harlan OGLE v. Mildred Brook OGLE.
CourtAlabama Supreme Court

Godwin, Morgan & Hughes, Birmingham, for appellant.

Nina Miglionico, Birmingham, for appellee.

GOODWYN, Justice.

This is an appeal by the husband from a decree modifying a support and maintenance provision of a divorce decree.

The original decree, rendered on January 28, 1946, gave to the mother the custody of the parties' two minor children, a daughter seven years of age and a son three years of age, and provided for payment by the father to the mother of $125 per month 'for alimony for herself and for support and maintenance of the said minor children, the first payment to be due on the first day of February 1946 and continue each month thereafter until Richard Ogle, the younger of the two minor children, shall enter public school, after which time the monthly payments shall be $100, * * *.'

On December 23, 1947, the decree was modified by changing the amount allowed for support and maintenance from $125 to $112.50 per month. For a review of that decree, see Ogle v. Ogle, 251 Ala. 623, 38 So.2d 864.

In January, 1957, Mrs. Ogle wrote a letter to Mr. Ogle stating, in substance, that she felt $65 a month would be a proper amount for him to pay thereafter since the daughter was no longer dependent upon her for support. Mr. Ogle then started making payments of $65 per month.

On October 18, 1960, Mrs. Ogle filed a petition to modify the decree so as to require the father to pay the sum of $200 per month 'for the support and maintenance of his said son until he reaches the age of 21 years or so long as he continues in college or is in a position to support himself.' The petition, as amended, alleges that the son is 18 years of age and is a student at the University of Alabama; that complainant is unable to keep him in college; that his expenses are approximately $200 a month; that the son is in need of support and maintenance from his father for his continued education; that both complainant and respondent are college graduates; that respondent is well able to contribute to the education of his son; that, at the time of the original decree in 1946, respondent was earning approximately $300 per month and that his income is now more than $1,000 per month.

Respondent's demurrer to the petition being overruled, he then filed an answer. Both the demurrer and answer are grounded principally on respondent's contention that the petition does not show a sufficient change in circumstances, since the modification agreed to by the parties in January 1957, to warrant the modification prayed for; that a college education is not a necessary; and that there is no legal or equitable duty on a father to furnish his child with a college education.

Respondent also alleges that he has remarried, has two children by his second marriage, and that his second wife is not employed.

There is evidence that petitioner is now an employee of Jefferson County earning a gross of $364.66 per month and a net of $291.13 after deductions for income tax, social security tax and hospital insurance.

Evidence on the petition was taken orally before the trial court. Mrs. Ogle was the only witness.

On November 17, 1960, a decree of modification was rendered providing that 'respondent pay to complainant as alimony, support and maintenance for herself and the minor son of the marriage the sum of One Hundred Thirty Dollars ($130.00) a month for the school months (while the said minor son is at the University of Alabama) and the sum of Sixty-five Dollars ($65.00) a month for the school vacation months, to-wit the months of June, July and August.' The decree also provides that the respondent pay $100 to complainant for her solicitor's services in the proceeding. Complainant prays that we allow an additional solicitor's fee in connection with this appeal.

There has been an abridgement of the record by agreement of the parties, pursuant to Supreme Court Rule 26.

The basic question for decision boils down to this: Can the father of age and in the over sixteen years of age and in the mother's custody under a divorce decree, be required to contribute toward the cost of a college education for such child?

Appellant's position perhaps can be stated best by quoting the following from his briefs, viz:

'While recognizing that Title 34, Section 35 permits the Court to give the custody and education of the children to either party, the Appellant's position is that this section must be considered in pari materia with Title 52, Sections 297 and 301 and limited to public school education.

* * *

* * *

'The Appellant contends that a ruling by this Court that a college education is a necessary would be equally applicable to a situation where there is no divorce. If a college education is necessary for a minor child, what matters the relationship of the parents. Is a minor child of divorced parents entitled to more education than a child whose parents are not divorced?

* * *

* * *

'Appellant concludes that the Alabama Legislature in passing Title 52, Sections 297 and 301 has pre-empted the filed of education for minor children. After a child reaches the age of sixteen years or has completed high school, the subject of education is not a matter of concern for the Court nor the child's parents, but solely within the discretion of the minor child.

* * *

* * *

'[T]he court cannot grant the education of a minor child to either parent after the child attains 16 years of age or has finished high school as now constituted. Appellant insists that this statute [§ 297, Tit. 52, Code 1940] was enacted to declare the public policy of this state to be that every child within the group defined therein has the duty to attend school and the parents have the corresponding duty to see that the children attend. After the child passes beyond the compulsory age attendance statute, then there is no duty for the child to attend school and there is no duty for the parents to see that the child attends school. The appellant will be the first to admit that the Legislature of Alabama could amend the compulsory school attendance law to include a college or university; however, it is still the position of the appellant that this is a matter for the Legislature and not the Courts.

* * *

* * *

'The appellant agrees that the Court may award the custody of the child to the mother, but the Court cannot award the education of this child to anyone. It is not within the Court's powers since the legislature has given to the child the right to determine his educational pursuits. Neither the parents nor the Court has any control over the matter.'

Code 1940, Tit. 34, § 35, supra, to the extent here pertinent, provides as follows:

'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, having regard to the moral character and prudence of the parents, the age and sex of the children; * *.'

Sections 297 and 301, Code 1940, Tit. 52, as amended, supra, provide, to the extent here pertinent, as follows:

' § 297. Ages of children required to attend school.--Every child between the ages of seven and sixteen years shall be required to attend a public school, private school, denominational school, parochial school, or be instructed by a competent private tutor, for the entire length of the school term in every scholastic year. * * *'

' § 301. Children exempt from attending public school.--The following children * * * shall not be required to attend school, or to be instructed by a private tutor; namely, * * * (b) a child sixteen years of age and upward or a child who has completed the course of study of the public schools of the state through high school as now constituted; * * *.'

The object of the compulsory education law is that all children shall be educated at least to the extent thereby prescribed. In other words, it is a minimum educational requirement. We do not think it was intended to deny to a court of equity the authority to require the father of a monor ward of the court (who is in his mother's custody pursuant to a decree divorcing his mother and father) to contribute to the education of the ward after he reaches sixteen years of age. Although it does not appear that this principle has been specifically spelled out by any decision of this court, there are cases which lend support to it. See: Scott v. Scott, 247 Ala. 598, 599, 25 So.2d 673; Farmer v. Coleman, 231 Ala. 527, 528, 529, 165 So. 778; Wells v. Wells, 230 Ala. 430, 431, 161 So. 794.

While there are divergent views on the question, it seems to us that the cases from other jurisdictions holding that a father may be required to contribute toward the college education of his minor child, who is in his mother's custody pursuant to a divorce decree, are supported by the better reasoning. Among such cases are Pass v. Pass, 238 Miss. 449, 118 So.2d 769, and Esteb v. Esteb, 138 Wash. 174, 244 P. 264, 47 A.L.R. 110. From Pass v. Pass, we quote the following:

'The...

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13 cases
  • Opinion of the Justices
    • United States
    • Alabama Supreme Court
    • April 27, 1993
    ...the purpose of depriving students of their liberty by mandating school attendance is to educate them. See, e.g., Ogle v. Ogle, 275 Ala. 483, 156 So.2d 345 (1963). 62 It would be a tragic mistake to deny that Alabama's schoolchildren have the same type of right to services adequate to meet t......
  • Waddell v. Waddell
    • United States
    • Alabama Court of Civil Appeals
    • September 24, 2004
    ...is to be imposed upon a parent so long as the child remains a minor. Our Supreme Court rejected this very notion in Ogle v. Ogle, 275 Ala. 483, 156 So.2d 345 (1963). Indeed, the Supreme Court's reaffirmation in Ex parte Bayliss of its view on this issue laid the foundation for its holding i......
  • Christopher v. Christopher (In re Christopher.)
    • United States
    • Alabama Supreme Court
    • October 4, 2013
    ...our government must depend upon a well-equipped, a well-trained, and well-educated citizenship.” ’ ” Id. (quoting Ogle v. Ogle, 275 Ala. 483, 487, 156 So.2d 345, 349 (1963), quoting in turn Pass v. Pass, 238 Miss. 449, 458, 118 So.2d 769, 773 (1960)). The cases cited for the proposition tha......
  • Ex parte Tabor
    • United States
    • Alabama Supreme Court
    • June 7, 2002
    ...relied upon do not support its result. In Bayliss, this Court relied heavily upon the rationale set forth in Ogle v. Ogle, 275 Ala. 483, 486, 156 So.2d 345, 348 (1963), which "`While there are divergent views on the question, it seems to us that the cases from other jurisdictions holding th......
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