Elliott v. Bretherick

555 So. 2d 1109, 1989 Ala. Civ. App. LEXIS 362, 1989 WL 141542
CourtCourt of Civil Appeals of Alabama
DecidedNovember 22, 1989
DocketCiv. 7046
StatusPublished
Cited by3 cases

This text of 555 So. 2d 1109 (Elliott v. Bretherick) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elliott v. Bretherick, 555 So. 2d 1109, 1989 Ala. Civ. App. LEXIS 362, 1989 WL 141542 (Ala. Ct. App. 1989).

Opinion

ROBERTSON, Judge.

This case involves court-ordered child support after the age of majority.

Earl Wayne Elliott (father) and Sharon Lee Bretherick (mother) were divorced on January 22, 1979. They have two children, Blaine, then age ten, and Angie, then age eight. In the divorce decree the trial court, among other things, awarded the custody of the children to the mother with visitation to the father, and provided that the father “pay 50% of the cost of the college education of each of the parties’ minor children at such time as such minor children enter college.”

In a subsequent order dated March 14, 1980, the court modified the visitation provisions of the earlier decree. Then on July 20, 1981, the court entered another order deleting the paragraphs in the two previous orders regarding custody and visitation. In this third order the court awarded custody of the son, Blaine, to the father during the school months, and to the mother during the months of June, July, and August. Conversely, the court awarded custody of the daughter, Angela, to the mother during the school months, and to the father during the months of June, July, and August. The court did not alter the “50% college expense provision.” On August 7, 1987, Blaine reached the age of majority, on his 19th birthday. He was diagnosed on October 19, 1987, as having T-cell leukemia.

On December 19, 1988, the mother filed a petition for rule nisi and a petition to modify the decree, or in the alternative, to extend the judgment of support. The mother asked the court to find the husband in arrears in child support and payment of college expenses, and further asked the court to extend his obligation to pay college expenses for both children and child support for the parties’ son, Blaine, age 20.

A hearing was held on January 24, 1989, regarding these petitions. In an order dated April 27, 1989, the trial court found the husband in contempt of court regarding the educational support of the parties’ minor daughter, Angela, and ordered the husband to pay the amount owed. The trial court further found:

“6. That Anthony Blaine Elliott is suffering from the disease of T-Cell Leukemia and is physically .and/or mentally disabled so that he is incapable of self-support at the present time.
“7. That Anthony Blaine Elliott experienced unexplained loss of weight; headaches; nose bleeds; dizziness; high temperatures; appeared pale, and tired easily prior to his 19th birthday on August 7,1987. Anthony Blaine Elliott was diagnosed as suffering from T-Cell Leukemia on October 19, 1987.
“8. That Anthony Blaine Elliott is found to be ‘dependent’ suffering from a disability that existed at the time of his attaining the age of majority and is incapable of self-support at the present time due to T-Cell Leukemia and the treatment associated therewith.”

The trial court then ordered the father to pay to the wife $200 per month as support and maintenance for their dependent son, ordered the father to continue to reimburse the mother one-half of the children’s college expenses, and also ordered the father to pay part of the wife’s attorney fees. The father appeals.

The dispositive issues on appeal are whether the trial court- erred by (1) ordering the father to pay child support for a child over the age of majority, (2) ordering payment of college expenses beyond the age of majority, and (3) awarding attorney fees to the wife.

I

The husband contends that his legal obligation to support the parties’ son, Blaine, terminated when he reached his 19th birthday because he was not disabled at that time. There is a recognized duty imposed on parents to support their children who are disabled as a minor and continue to be disabled beyond their minority. As our supreme court stated “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 [1111]*1111incapable of self-support beyond minority.” Ex parte Brewington, 445 So.2d 294 (Ala.1983). Further, the age of the disabled child at the time support is sought is immaterial as long as the disability occurred during the child’s minority and continued thereafter. Martin v. Martin, 494 So.2d 97 (Ala.Civ.App.1986). In adopting the reasoning of the New Jersey Superior Court in Kruvant v. Kruvant, 100 N.J.Super. 107, 241 A.2d 259 (1968), our supreme court quoted from that case: “However, we do not believe that the legislature ... 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.” Ex parte Brewington, supra, at 296.

While there was testimony from the mother that Blaine experienced some headaches, a few nose bleeds, and tired easily before his 19th birthday, there was no evidence that he suffered a Brewington disability during minority. There was no medical testimony offered by the mother to show that a disabling ailment existed prior to August 7, 1987, nor had he been treated for any illness or ailment. In fact, Blaine had been attending Huntingdon College since the summer of 1986 and was on an ROTC scholarship. We find the following testimony by the mother pertinent:

“Q. Now, Blaine fell ill October 15 of '87, wasn’t it? Wasn’t it that Saturday?
“A. Fell ill?
“Q. Yes, he fell out.
“A. When he was diagnosed, what led to the diagnosis? The weekend of the diagnosis?
“Q. Yes.
“A. Yes, sir.
“Q. And it was just before he went to the hospital on the 19th, wasn’t it?
“A. That occurrence was right before he went to the hospital, yes, sir.
“Q. Prior to that, he had not been taken to the doctor for any illness at all, had he?
“A. No, sir, he had not.
“Q. And nobody had diagnosed Blaine as having any malady before the 15th of October, 1987?
“A. That is correct.
“Q. Is that correct?
“A. Yes, sir, it is.
“Q. On the 15th of October, 1987, Blaine had already been 19 years of age for two months, had he not?
“A. That’s right, yes.
“Q. Plus about a week?
“A. Yes.
“Q. On the 19th of October, 1987, he was diagnosed; is that correct?
“A. That’s correct.
“Q. Was he also hospitalized that day?
“A. He was hospitalized that week, yes, sir.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wojtala v. Wojtala
241 So. 3d 37 (Court of Civil Appeals of Alabama, 2017)
Knepton v. Knepton
199 So. 3d 44 (Court of Civil Appeals of Alabama, 2015)
Layfield v. Roberts
599 So. 2d 1169 (Court of Civil Appeals of Alabama, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
555 So. 2d 1109, 1989 Ala. Civ. App. LEXIS 362, 1989 WL 141542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-bretherick-alacivapp-1989.