In 1984, the Alabama Supreme Court overruled established Alabama law and ordered the father of a permanently disabled child, to support the child past the age of majority. Ex parte Brewington, 445 So.2d 294 (Ala. 1984).
In DeMo v. DeMo, Jr., 679 So. 2d 265, (Ala. Civ. App. 1996), the Court of Civil Appeal's ruled that "the child support guidelines set forth in Rule 32, Ala. R. Jud. Admin., should be used to calculate the appropriate child support for an adult disabled child."
Ex parte Faye T. Blair Brewington (Re: James Mitchell Blair vs.
Faye T. Blair Brewington)
No. 82-923
SUPREME COURT OF ALABAMA
445 So. 2d 294
March 1, 1984, As Amended
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
JUDGES
Before BEATTY, JUSTICE. Torbert, C.J., Faulkner, Jones, Shores, Embry and Adams, JJ., concur. Maddox, J., dissents. Almon, J., not sitting. AUTHOR: BEATTY
OPINION
BEATTY, JUSTICE.
The trial court in this case ordered respondent, the father of a permanently disabled child, to support the child past the age of majority, and further, increased the amount of support payments the father was already making. The Court of Civil Appeals reversed the order of the trial court because it felt compelled to follow the decision of this Court in Reynolds v. Reynolds, 274 Ala. 477, 149 So. 2d 770 (1963), which held that, because the Alabama statute providing for child support (Code of 1975, º 30-3-3) had been held to apply only to minor children, the trial court was without jurisdiction to order a parent to support an adult child. We granted certiorari to consider petitioner's request that this Court overrule Reynolds, supra.
The facts as set out in the opinion rendered by the Court of Civil Appeals are as follows:
"The parties were divorced in 1967. At that time there were four minor children including the disabled child who is the youngest. The original decree required the father to pay $12 per child per month for support. Child support was to continue for the children until they reached the age of eighteen or became self-supporting.
"In 1970, the decree was modified to require the father to pay $50 per month for the disabled child's support as well as all medical expenses.
"In July, 1982, the mother filed a petition for modification seeking an increase in child support. The trial court found that the disabled child was permanently disabled and would continue to be dependent upon his parents. At the time of the hearing, the child was seventeen years old. He suffers from spinal epifida causing him to be paralyzed from the waist down and confined to a wheelchair. He currently lives with his mother who has custody by virtue of the divorce decree.
"Both parents have remarried and their spouses both work. The father's income has increased substantially--from $4.39 to $10.05 per hour--since the 1970 modification.
"The trial court ordered the father to pay $150 per month for six months beginning September, 1982, thereafter increasing to $300 per month for support for the disabled child. In addition, the father is required to pay all medical expenses and maintain a life insurance policy with the disabled child as beneficiary. The trial court ordered that the support payments continue 'as long as the child is dependent upon the parties for his support.' In denying the father's motion for new trial, the trial court stated that the 'support of a dependent child is the obligation of parents as a matter of public policy.'"
Although we appreciate the decision of the Court of Civil Appeals which follows the general rule announced in Reynolds, supra, this Court concludes that the decision of the trial court is the result which accords with the legislature's intent in this instance. To the extent that Reynolds, supra, is inconsistent with this holding, it is specifically overruled.
An analysis of the Alabama cases reveals that Reynolds-type decisions were based on the position that, absent a statute or agreement, no common-law authority existed to impose upon a non-custodial parent the obligation to support his adult child. However, the majority trend is to recognize an exception to this rule when the adult child is so mentally and/or physically disabled as to be unable to support himself. See e.g. Kruvant v. Kruvant, 100 N.J.Super. 107, 241 A.2d 259 (1968); Fincham v. Levin, 155 So. 2d 883 (Fla. App. 1963); Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31 (1947); O'Malley v. O'Malley, 105 Pa.Super. 232, 161 A. 883 (1932).
The Court in Reynolds based part of its decision on Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735 (1951), which held that the term "children" as used in º 30-3-1 was clearly meant to apply only to minor children. The statute, however, does not express such a limitation, and such a narrow interpretation is unacceptable. In the frame of reference of the present case, we believe the legislature intended that support be provided for dependent children, regardless of whether that dependency results from minority, or from physical and/or mental disabilities that continue to render them incapable of self-support beyond minority.
Thus, we adopt the reasoning of the New Jersey Superior Court in the case of Kruvant v. Kruvant, supra, where the facts were similar to those of the case at bar. The case involved an appeal by a divorced husband from orders of the lower court reopening and modifying provisions for support of his son contained in a divorce decree. The husband argued that the New Jersey court did not have the jurisdiction under New Jersey's divorce statutes to order support for an adult child. The New Jersey court, however, said of its divorce statute:
"[It] contemplates support for the children of divorced parents who, but for the divorce, would have continued to be entitled to the support of their father. It stems from the presumed inability of such children, by reason of their minority, to provide for themselves. Children who are unable to care for themselves because of their minority are no less entitled to the court's solicitude when they continue to suffer, after they have attained their majority, from a physical or mental disability which continues to render them incapable of self-support. Normal instincts of humanity and plain common sense would seem to dictate that in such cases the statutory obligation of the parent should not automatically terminate at age 21, but should continue until the need no longer exists. 67 C.J.S. Parent and Child º 17, p. 704 (1950); 39 Am.Jur., Parent and Child, º 40, p. 645, º 69, p. 710 (1942). However, we do not believe that the Legislature in enacting N.J.S. 2A:34-23, N.J.S.A., intended to confer jurisdiction upon the court to compel a husband or wife to support a child suffering from a disability which did not exist at the time of his attaining his majority but came about some time later."
100 N.J.Super. at 113, 241 A.2d at 265-266. Further, we take note of the case of Strom v. Strom, 13 Ill. App. 2d 354, 142 N.E.2d 172 (1957), where an Illinois court observed that the Illinois divorce statute did not specifically refer to children who are minors and held that where care is necessary to equip the child for adult life and the financial circumstances of the father are adequate, equity can continue its jurisdiction to compel support of an adult child.
Moreover, in addition to our expanded interpretation today of the term "children" in the Alabama child support statute, we recognize a duty imposed on parents to support their children who continue to be disabled beyond their minority. Accordingly, as urged by our Court of Civil Appeals, we follow the reasoning of our sister state, Florida, as expressed in the case of Fincham v. Levin, supra, at 884:
"[Appellant] cites the annotation in 1 A.L.R.2d at page 914 in support of the proposition that the common law went no further than to impose on parents the duty of supporting their minor children, and that as a general rule there is no obligation on the part of a parent to support an adult child. This is unquestionably the rule with respect to able-bodied children. However, the same annotation (at page 921) reflects that most jurisdictions hold that where a child is of weak body or mind, unable to care for itself after coming of age, the parental rights and duties remain practically unchanged and the parent's duty to support the child continues as before. We concur with the trial court and Perla v. Perla, [58 So. 2d 689 (Fla. 1952)], in adopting that view."
Not only does this appear to be the better view, it also accords with the legislative intent. Therefore, the judgment of the Court of Civil Appeals reversing the trial court's order continuing child support for the disabled child beyond his majority is hereby reversed, and the cause is remanded to the Court of Civil Appeals for disposition not inconsistent with this opinion. Since respondent does not address in brief the correctness of the judgment of the Court of Civil Appeals affirming the trial court's order increasing the amount of the child support payment from $50.00 to $300.00 per month, we do not consider this issue addressed by the petitioner.
REVERSED IN PART AND REMANDED.
Torbert, C.J., Faulkner, Jones, Shores, Embry and Adams, JJ., concur.
Maddox, J., dissents.
Almon, J., not sitting.
DISPOSITION
REVERSED IN PART AND REMANDED.
vs.
Frederick V. DeMo, Jr.
2941301
COURT OF CIVIL APPEALS OF ALABAMA
679 So. 2d 265, 1996 Ala. Civ. App. LEXIS 440
May 31, 1996, Released
Appeal from Montgomery Circuit Court. (DR-94-861.01). John W. Davis III, TRIAL JUDGE.
As Amended. Released for Publication September 4, 1996.
JUDGES
ROBERTSON, Presiding Judge. Yates and Monroe, JJ., concur. Thigpen and Crawley, JJ., concur in the result only. AUTHOR: ROBERTSON
OPINION
ROBERTSON, Presiding Judge
Kay Carter DeMo ("the wife") and Frederick V. DeMo ("the husband") were divorced by the Montgomery County Circuit Court on June 24, 1994. The divorce judgment incorporated an alimony and property settlement agreement that awarded the wife the marital home and stated that the husband shall pay the wife "the sum of $ 800 per month ... for a period of ten years. These payments being for the care and support of [the parties'] disabled child." At the time of the divorce, the child was 23 years old. The trial court did not use the child support guidelines set forth in Rule 32, Ala.R.Jud.Admin., to calculate the amount of child support for the adult disabled child.
On February 5, 1995, the husband filed a petition to modify his child support obligation, alleging a material change in circumstances. He also alleged that application of the child support guidelines would show that the difference between his existing child support obligation and the amount required by the guidelines varied more than 10%, thereby creating a rebuttable presumption that the child support obligation should be modified. The husband later amended his petition, requesting that, pursuant to Rule 60(b), Ala.R.Civ.P., the trial court set aside the child support provision of the divorce judgment because the child support guidelines had not been used to calculate the amount of child support ordered. The wife answered and counterclaimed, alleging that the husband's petition to modify was without merit and requesting that the trial court order the husband to pay her attorney's fee.
The trial court held a hearing on May 9, 1995. Thereafter, it entered an order that stated, in part:
"The Court having carefully considered the evidence presented at the hearing on May 9, 1995, and the argument of counsel, the Court finds that while there is no direct precedent on the issue of whether Rule 32 of the Alabama Rules of Judicial Administration should be applicable to adult disabled children of divorced parties, the case law of this state cited by the husband strongly implies that Rule 32 should be applied to such adult, disabled children. Further, the Court is of the opinion that there have occurred such changes in circumstances as would warrant consideration by the Court of child support and that a calculation of child support pursuant to Rule 32 results in a recommended support of $ 400 per month under the facts of this case."
The trial court then ordered the husband to pay child support of $ 600 per month for three months and $ 400 per month thereafter. The wife's post-judgment motion was denied and she appealed.
We find the dispositive issue to be whether the trial court erred by applying the child support guidelines set forth in Rule 32, Ala.R.Jud.Admin., to calculate the appropriate child support for an adult disabled child.
A parent's "duty ... to support [his or her] children who continue to be disabled beyond their minority" was established by our Supreme Court in Ex parte Brewington, 445 So. 2d 294, 297 (Ala. 1983). The Brewington Court reached its decision by interpreting the word "children" in the Alabama child support statute, º 30-3-1, Ala. Code 1975; Title 34, º 35, Ala. Code 1940, to mean dependent children, including both minor children and adult children who continue to be disabled beyond their majority. Id. However, Brewington did not set forth any specific method for the trial court to use when calculating child support for an adult disabled child. This Court provided some guidance in this aspect in Martin v. Martin, 494 So. 2d 97 (Ala. Civ. App. 1986), by holding that the trial court should consider the disabled child's needs, the financial ability of the payor parent to provide for those needs, and the child's income through Social Security or other similar sources. These criteria are substantially the same as the factors used before the adoption of the child support guidelines for determining the appropriate child support for minor dependent children. See Brannon v. Brannon, 477 So. 2d 445 (Ala. Civ. App. 1985) (stating that the trial court should consider the needs of the child and the payor parent's ability to pay when determining how much child support to award).
After Brewington and Martin were decided, our Supreme Court, in 1987, promulgated the Rule 32 child support guidelines. Since their inception, the guidelines have been amended twice, once in 1989 and once in 1993. The guidelines, as amended in 1993, require that all orders establishing or modifying child support obligations shall provide for the children's health care needs, and set forth a method for determining child support based on the parents' earning ability and income and the number of children.
Rule 32 does not expressly state that the child support guidelines are applicable to adult disabled children; however, subsection (A) states:
"Guidelines for child support are hereby established for use in any action to establish or modify child support, whether temporary or permanent. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded."
Emphasis added.
This language plainly requires, without any express limitation, the application of the child support guidelines in "any action to establish or modify child support." Therefore, the guidelines for establishing or modifying child support for an adult disabled child is within the scope of application contemplated by the plain language of the Rule. Id.
Further, applying the child support guidelines to adult disabled children is consistent with the law of this state before the adoption of the guidelines because, at that time, similar factors were used to determine child support for both minor dependent children and adult disabled children. See Martin and Brannon, supra.
When determining the scope of Rule 32, this Court is bound to presume that our Supreme Court had knowledge of its holding in Brewington when it promulgated and later amended Rule 32. On those occasions, the Court, with knowledge of its holding in Brewington, could have precluded the application of the guidelines to adult disabled children by specifying that the guidelines are applicable only to "minor" children. However, the Rule does not contain any such limitation, either generally, or specifically in relation to the word "child" or "children." Thus, it is logical to conclude that no limitation was intended. See State ex rel. Harris, 559 So. 2d 66 (Ala. 1990) (holding that the presence of the word "minor" in º 38-10-2(a)(3), Ala. Code 1975, is restrictive language and does not allow collection of post-minority child support by the State); Ex parte Bayliss, 550 So. 2d 986 (Ala. 1989) (holding that the absence of the word "minor" in º 30-3-1, Ala. Code 1975, allowed a trial court to order a parent to pay post-minority support for his or her child's college education); and Brewington, supra.
Following our Supreme Court's lead in Brewington, we conclude that the words "child" and "children" in Rule 32 refer to dependent children, including both minor children as well as adult children who continue to be disabled beyond their majority. Consequently, we hold that the child support guidelines are applicable in the establishment or modification of child support for an adult dependent child.
Because we hold that the child support guidelines typically used to calculate child support for minor dependent children apply to adult disabled children who may have exceptional needs, it is necessary to point out that the guidelines authorize the trial court to fashion an award of child support that will fulfill all of the needs of an adult disabled child. Subsection (C)(4) of Rule 32 allows the trial court to make additional awards, in excess of basic child support, for extraordinary medical, dental, and educational expenses if it determines that such awards are in the best interest of the child. Also, Rule 32(A)(1)(e) allows the trial court to deviate from the guidelines to promote the best interest of the child. These subsections require the trial court to state a reason justifying the additional award or the deviation from the guidelines.
When applying Rule 32 to the facts of this case, the trial court correctly found that the husband's child support obligation should be modified, because the difference between his existing obligation ($ 800 per month) and the amount determined by applying the guidelines varied by more than 10%. See Rule 32(A)(3)(b). However, the trial court miscalculated the proper amount of child support due under the guidelines. The undisputed testimony presented at the hearing established that the husband's monthly income was $ 1,833.33 and that the wife had no actual income. Under the basic obligation schedule of Rule 32, the husband's child support obligation would be $ 300 per month. Nevertheless, the trial court did not reduce the husband's child support obligation to that amount; instead, it ordered the husband to pay $ 600 per month for three months and $ 400 per month thereafter. As noted above, the guidelines allow the trial court to make an additional award or to deviate from the guidelines so long as it states a reason justifying its action. The trial court failed to state such reasons in this case; therefore, it erred by ordering child support in excess of the amount prescribed by the guidelines.
The judgment of the trial court is reversed and the cause is remanded for the trial court to set an amount of child support in compliance with Rule 32.
The wife's request for an attorney fee on appeal is denied.
I am compelled to respond to Judge Crawley's remarks in his special writing because of the confusion it may create.
First, there is no correlation between child support for a permanently disabled child and expenses for a four-year college education.
Second, and most important, the special writing obviously misinterprets the difference between gross income of a parent under Rule 32(B)(2)(b), and the child's income through Social Security or other similar sources to be considered by the court under Rule 32(A)(1)(d), Ala.R.Jud.Admin. Rule 32(A)(1)(d) provides that "assets of, or unearned income received by or on behalf of, a [disabled] child" may be considered by the trial court in making a determination of child support when deviating from the guidelines. Consequently, applying the child support guidelines to adult disabled children is consistent with the law of this state before the adoption of the guidelines.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Yates and Monroe, JJ., concur.
Thigpen and Crawley, JJ., concur in the result only. Yates and Monroe, JJ., concur.
Thigpen and Crawley, JJ., concur in the result only.
DISPOSITION
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
CONCURRENCE
CRAWLEY, JUDGE, concurring in the result only.
Today, the court answers the question left open in Martin v. Martin, 623 So. 2d 1167 (Ala. Civ. App. 1993). In that case, the trial court applied the guidelines to the support of an adult disabled child. However, this court found it unnecessary to determine the propriety of that action because the father did not challenge the trial court's use of the guidelines.
The few decisions from other jurisdictions considering the question indicate that there is a split of authority on whether compulsory child support guidelines apply to adult dependent children. Compare O'Connor v. O'Connor, 71 Ohio App. 3d 541, 594 N.E.2d 1081 (1991) and Peterson v. Smith, 307 S.C. 418, 415 S.E.2d 431 (1992)(holding that the guidelines do apply) with In re Marriage of Hansen, 514 N.W.2d 109 (Iowa App. 1994)(holding that the guidelines do not apply). I agree with the majority of this court that the child support guidelines set out in Rule 32, Ala.R.Jud.Admin., apply in cases involving adult dependent children, but not for the reasons stated by the majority.
The majority determines, first, that the guidelines cover adult disabled children because the plain language of Rule 32 does not expressly exclude them. The plain language of Rule 32 does not expressly exclude post-minority-age college students either, yet this court has held that the guidelines do not apply in determining Bayliss support. Finley v. Finley, 648 So. 2d 588, 590 (Ala. Civ. App. 1994); Martin v. Martin, 623 So. 2d 1167, 1170 (Ala. Civ. App. 1993); Thrasher v. Wilburn, 574 So. 2d 839, 841-42 (Ala. Civ. App. 1990).
Nevertheless, I think the guidelines apply to adult disabled children because the needs of disabled adults are more similar to the needs of minor children than they are to the needs of nondisabled college students. The expenses of providing food, clothing, care, and shelter for an adult dependent child are more closely reflected by the assumptions underlying the guidelines than are the expenses of providing a college education. Moreover, to paraphrase Judge Wright, writing for this court in Thrasher v. Wilburn, supra, the duty of a parent to provide food and shelter to a disabled child unable to support himself is of greater magnitude than the duty to provide a college education for a nondisabled child. Finally, to the extent that the guidelines do not reflect the true expenses of caring for an adult disabled child, the trial court has the authority to deviate from the guidelines.
Next, the majority finds that "applying the child support guidelines to adult disabled children is consistent with the law of this state before the adoption of the guidelines because, at that time, similar factors were used to determine child support for both minor children and adult disabled children." I disagree.
Prior to the adoption of the guidelines, the amount of child support for an adult dependent child was based on three criteria, namely: (1) the child's needs, (2) the financial ability of the parents to pay, and (3) the child's "income through Social Security or other similar sources." See Martin v. Martin, 494 So. 2d at 100. Under the guidelines, however, a disabled adult's Supplemental Security Income ("SSI") payments are not considered as income. See Rule 32 (B)(2)(b). For the following reasons, I agree with the policy of excluding SSI payments in determining the amount of child support owed for a disabled adult child.
"[SSI] is a social security program providing benefits to aged, blind and disabled individuals who have income and resources below certain statutory amounts. It is in the nature of a welfare program. . . . The purpose of [SSI] is to assure recipients' income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that individual. . . .
"Clearly [SSI] is a public assistance similar to aid to dependent families.
". . . .
"Like aid to dependent families, [SSI] is based on need and anticipates that it will only come into play if minor children do not have sufficient support from their parents. We will not structure child support so as to make families eligible for either program[]. Eligibility for these programs should be determined after the courts have fixed reasonable child support based on the noncustodial parent's ability to pay."
In re Marriage of Benson, 495 N.W.2d 777, 781, 782 (Iowa App. 1992)(emphasis added)(citations omitted).
On remand, I believe the trial court may either reduce the husband's child support obligation to the guideline amount or order a different amount as long as it states the reasons for deviating from the guidelines.
Thigpen, J., concurs.
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