Preview:

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2007-2008

2060624


B.B.

v.

F.P.


Appeal from Madison Juvenile Court
(CS-01-2501.02)

BRYAN, Judge.

B.B. ("the mother") appeals a judgment insofar as it

awarded F.P. ("the father") postminority educational support,

awarded the father an attorney's fee and travel expenses, and

denied the mother's request for a hearing on her postjudgment

motion.  Both the mother and the father request an attorney's
fee on appeal.  For the reasons given below, we affirm in
part, reverse in part, and remand with instructions.

The pleadings and orders included in the record on appeal
indicate that the father first petitioned the juvenile court
for a rule nisi seeking to hold the mother in contempt for her
failure to pay her monthly child-support obligation.  However,
the first pleading included in the record on appeal is the
father's complaint seeking an award of postminority
educational support regarding the parties' minor son, T.P.
("the son"), born on July 15, 1988.

After the mother answered, denying the allegations in the
father's complaint, the juvenile court held an ore tenus
proceeding regarding the father's complaint seeking
postminority educational support and his petition seeking to
hold the mother in contempt.  At the conclusion of the ore
tenus proceeding, the juvenile court rendered an oral
judgment.  On March 20, 2007, the juvenile court entered a
written judgment in conformance with its oral judgment.  That
written judgment states, in pertinent part:

"1. [The mother] is found to be in contempt of court
for her nonpayment of child support ordered by the
Court on June 1, 2001.

"2. [The mother] admitted by stipulation to the
child support arrearage due as of August 9, 2006.
This arrearage consists of unpaid child support ...
for a total amount due to [the father] in the amount
of twelve thousand four hundred fifty six and 53/100
dollars ($12,456.53). ...

"3. [The mother] shall reimburse [the father] for
his reasonable attorney's fees, at the rate of one
hundred fifty dollars per hour ($150.00/hour), which
he incurred in bringing this cause of action. [The
father's] reasonable attorney's fees total two
thousand eight hundred eighty nine and no/100
dollars ($2,889.00). ...

"4. [The mother] shall reimburse [the father] for
his travel expenses of three hundred fifty and
no/100 dollars ($350.00) which he incurred in
bringing this cause of action. ...

"5. Pursuant to the Bayliss standard as set out by
the Alabama Supreme Court in Ex parte Bayliss, 550
So. 2d 986 (Ala. 1989), [the mother] shall provide
post-minority support for [the son's] college
education. [The mother] shall pay one half of the
non[-]covered tuition, books, fees and expenses for
the child of the parties .... In addition, [the
mother] shall reimburse [the father] in the amount
of one half of the future loan payments for the loan
that [the father] obtained for [the son's] uncovered
college expenses. [The father] shall also supply
[the mother] a copy of the loan and its status. [The
father] shall supply [the mother] with an allocation
of what expenses are waived, what expenses are
covered and what expenses are non-covered.

"6. Pursuant to the Bayliss standard as set out by
the Alabama Supreme Court in Ex parte Bayliss, 550

So. 2d 986 (Ala. 1989), [the father] shall notify
[the mother] of [the son's] grades, events and other
pertinent facts as they relate to [the son's]
college education within fourteen (14) days from the
date upon which [the father] is notified of same."

After the juvenile court denied the mother's motion to alter,
amend, or vacate the judgment, the mother timely appealed.

The evidence established the following. The son, a
freshman at the time of trial, attends Morgan State University
("MSU"), majoring in electrical engineering. The only evidence
of the son's academic progress at MSU is the father's
testimony that the son was on the Dean's List, that the son's
grades are "great," and that the son is "doing extremely well
in college."

The father testified that MSU waives the son's tuition
because the father is employed at the university as a police
sergeant, where he earns $48,000 annually. However, the father
testified that MSU charges the son for costs associated with
nontuition expenses, such as room and board, books, and fees.
The father testified that the cost of room and board is
$2,300. 1 The father did not introduce evidence itemizing the

1The evidence is unclear whether the costs of room and
board is $2,300 for each academic year or for each semester.

costs of the son's other expenses. Although the son was not

awarded any scholarships, he received $2,000 in grants.2 On

direct examination, the father stated the following regarding
the son's remaining expenses:

"[The father's attorney:] So, how much per semester

would you estimate that his non-covered fees

relating to school, books, that sort of thing, would

be?

"[The father:] It's approximately about eight

hundred dollars. Some of it is taking care too

because [the son] has a loan of which we took out.

So it's a loan which we're paying ...."

There is no evidence regarding the amount of that loan.

The mother has married and has two minor children born of
that marriage. The mother works at Regions Bank earning $8.65
per hour. The mother testified that she works about 45 hours
per week and earns approximately $20,000 per year.  The mother
introduced her wage-withholding statement indicating that she
earned $15,614.55 in 2006. The mother testified that she had
previously worked at a CVS drug store earning between $23,000
and $25,000 annually, but she resigned because CVS required
her to work extended hours that interfered with her family

2The evidence is unclear whether the son receives $2,000
in grants for each academic year.

obligations. According to the mother's Child Support
Obligation Income Statement/Affidavit form, she earns
$1,301.21 per month.  The mother introduced an exhibit
itemizing her monthly expenses.  Those expenses total $2,294.3
The mother testified that her husband assists her in paying
housing costs and utility expenses that total $899 a month.
The mother also testified that she pays the remaining expenses
itemized on the list. 4 Those expenses total $1,395 a month. 5

The mother testified that she had recently begun to
participate in her employer's 401(k) plan; that account has a
value of $250.  She also testified that she has an individual
retirement account ("IRA") from her previous employer and
that that IRA has a value of approximately $6,800.  However,
the father introduced a statement indicating that that IRA has

3The mother's exhibit indicates that her monthly expenses
total $2,094.  However, the sum of the itemized expenses
listed on the exhibit actually totals $2,294.

4The mother's nonhousing and nonutility expenses listed
on her exhibit are as follows: $150 for automobile insurance;
$130 for gasoline; $50 for automobile maintenance; $200 for
health insurance; $500 for child care; $200 for groceries; $50
for costs associated with hair and nail care; $60 for
clothing; and $55 for entertainment.

5Housing and utility expenses of $899 subtracted from
total monthly expenses of $2,294 equals $1,395.

a value of $7,143.19 as of December 29, 2006.  Additionally,
the mother's attorney stipulated that the mother had acquired
$4,000 through the sale of certain stock and had offered that
money as partial payment toward her child-support arrearage.

The juvenile court received evidence of the mother's
relationship with the son. The mother testified that she had
not seen the son in four years. She stated that her attempts
to contact the son by telephone and by letter have been of no
avail. She testified that she learned where the son was
attending college through documents filed in the proceedings
below. The father testified that he did not consult the mother
before the son chose to enroll at MSU.  However, he denied
that the son does not have a relationship with the mother.

On appeal, the mother first argues that the juvenile
court erred in awarding the father postminority educational
support because, she says, (1) the judgment fails to impose
academic and temporal restrictions on the son's college
education; (2) the judgment ordered the mother to pay one-half
of a loan of an unknown amount; and (3) the judgment imposes
an undue financial hardship upon her.

In Alabama, a court may award a custodial parent
postminority educational support when that parent petitions
for such support before his or her child reaches the age of

majority.  Ex parte Bayliss, 550 So. 2d 986 (Ala. 1989).6
"Because the trial court received evidence ore tenus, we must
presume its judgment is 'correct unless it is so unsupported
by the evidence that it is plainly and palpably wrong.'
Thrasher v. Wilburn, 574 So. 2d 839, 841 (Ala. Civ. App. 1990)
(citing Coby v. Coby, 489 So. 2d 597 (Ala. Civ. App. 1986))."
Walker v. Walker, 917 So. 2d 144, 147 (Ala. Civ. App. 2005).

This court has previously stated:
"A parent has a legal duty to provide or aid in
providing a college education for his/her child if
the child demonstrates the ability and willingness
to attain a higher education and the parent has
sufficient estate, earning capacity, or income to
provide financial assistance without undue hardship

to himself."
Thrasher v. Wilburn, 574 So. 2d 839, 841 (Ala. Civ. App.
1990).  Furthermore,

"[t]his court has held 'that the trial court
must set reasonable limitations on the parent's
responsibility for postminority educational support,

6The evidence established that the father petitioned for
postminority educational support before the son reached the
age of majority.

because the failure to do so may impose an undue
hardship on the paying parent.' Hertzberg v. Gainey,
855 So. 2d 561, 564 (Ala. Civ. App. 2003) (citing
Penney v. Penney, 785 So. 2d 376 [(Ala. Civ. App.
2000)]; Ullrich v. Ullrich, 736 So. 2d 639, 643
(Ala. Civ. App. 1999); and Kent v. Kent, 587 So. 2d
409 (Ala. Civ. App. 1991)). 'These limitations
include (1) limiting the support to a reasonable
period, (2) requiring the child to maintain at least
a 'C' average, and (3) requiring that the child be
enrolled as a full-time student.' Penney, 785 So. 2d
at 379."

Waddell v. Waddell, 904 So. 2d 1275, 1280 (Ala. Civ. App.

2004).  Moreover,

"'without legal evidence as to the amounts
required for books and tuition or for
actual costs of room and board, we cannot
determine whether the sums a parent is
required to pay for postminority
educational support would cause undue
hardship. [Penney v. Penney, 785 So. 2d 376
(Ala. Civ. App. 2000)]; Thrasher v.
Wilburn, 574 So. 2d 839 (Ala. Civ. App.
1990)....'"

McAlpine v. McAlpine, 865 So. 2d 438, 443 (Ala. Civ. App.

2002) (quoting Bowen v. Bowen, 817 So. 2d 717, 718-19 (Ala.

Civ. App. 2001)).

In the case now before us, the father testified that MSU

waives his son's tuition because the father is employed at the

university.  However, the father stated that MSU charges for

the son's remaining expenses. The only evidence of the son's

actual expenses is the father's testimony establishing that
$2,300 is the cost of the son's room and board. The father
testified that $800 in unpaid expenses remain after credits
given for the son's $2,000 grant. However, there is no
evidence of the son's actual remaining expenses or evidence of
how the $800 is apportioned among those remaining expenses.
Furthermore, the father testified that he and the son had
obtained a student loan.  However, there is no evidence of the
amount of that loan and its remaining balance.  Because there
is insufficient legal evidence of the actual costs of books,
fees, the student loan, and the son's other remaining
expenses, this court cannot determine whether the award of
postminority educational support imposes an undue hardship
upon the mother. Therefore, we reverse the judgment and
remand the cause for the juvenile court to receive additional
evidence regarding the son's actual college expenses.  See
McAlpine, 865 So. 2d at 443 (remanding the cause to the trial
court to receive additional evidence of the child's actual
postminority educational expenses).  Additionally, we also
conclude that the juvenile court erred by failing to impose

reasonable temporal and academic limitations in its judgment.
See Waddell, supra.

The mother also argues that the juvenile court erred in
awarding the father $2,889 in an attorney's fee and $350 in
travel expenses. This court has previously stated: "The award
of attorney fees is within the sound discretion of the trial
court and will not be reversed unless an abuse of discretion
is shown." Volovecky v. Hoffman, 903 So. 2d 844, 850 (Ala.
Civ. App. 2004).  Because the father prevailed in his petition
seeking to hold the mother in contempt for her failure to pay
child support, we conclude that the juvenile court did not
exceed its discretion in awarding the father an attorney's fee
in the amount of $2,889.  We also conclude that the juvenile
court did not exceed its discretion in awarding the father,
who lives in Maryland, travel expenses in the amount of $350.
See Rigsby v. Akin, 498 So. 2d 851, 852 (Ala. Civ. App. 1986)
(concluding that an award of travel expenses was not an abuse
of discretion).

Last, the mother argues that the juvenile court erred in
denying her motion to alter, amend, or vacate the judgement
without affording her a hearing because, she says, her

argument that the juvenile court erred in awarding the father
postminority educational support had probable merit.

Our appellate courts have held that, subject to certain
exceptions, a trial court errs when it fails to afford a party
a hearing when requested in a postjudgment motion if that
motion has probable merit.  See Ex parte Evans, 875 So. 2d
297, 299-300 (Ala. 2003); and Greene v. Thompson, 554 So. 2d
376, 381 (Ala. 1989); see also Rule 59(g), Ala. R. Civ. P.
Because the mother presented argument regarding the merits of
the postminority-educational-support award on appeal and given
this courts disposition of the merits of that claim, the
mother's argument is moot.

In conclusion, we affirm the judgment insofar as it
awards the father an attorney's fee and travel expenses, but
we reverse the judgment insofar as it awards the father
postminority educational support, and we remand the cause with
instructions.  The mother's and the father's requests for an
attorney's fee on appeal are denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
INSTRUCTIONS.

Thompson, P.J., and Pittman, J., concur.

Moore, J., dissents, with writing, which Thomas, J.,
joins.

MOORE, Judge, dissenting.

As noted in the main opinion, a trial court commits
reversible error when it fails to grant a party's request for
a hearing on a motion filed pursuant to Rule 59, Ala. R. Civ.
P., if that motion has probable merit.  See Ex parte Evans,
875 So. 2d 297, 299-300 (Ala. 2003); and Greene v. Thompson,
554 So. 2d 376, 381 (Ala. 1989).  Because in this case the
mother's postjudgment motion had probable merit, and because
the mother requested a hearing on her motion, the trial court
committed reversible error by not holding a hearing on that
motion.  I would therefore simply reverse the judgment for the
trial court to hold a hearing on the mother's postjudgment
motion.

Thomas, J., concurs.

Download 2060624.pdf

Alabama Law