Ex Parte Cohen

763 So. 2d 253, 1999 WL 1242223
CourtSupreme Court of Alabama
DecidedDecember 22, 1999
Docket1971347
StatusPublished
Cited by18 cases

This text of 763 So. 2d 253 (Ex Parte Cohen) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Cohen, 763 So. 2d 253, 1999 WL 1242223 (Ala. 1999).

Opinion

763 So.2d 253 (1999)

Ex parte Laurence H. COHEN.
(In re Laurence H. Cohen v. Jill M. Cohen Baker).

1971347.

Supreme Court of Alabama.

December 22, 1999.

W. Gregory Hughes, Mobile, for petitioner.

Robert E. Gibney, Mobile, for respondent.

PER CURIAM.

Dr. Laurence H. Cohen appealed to the Court of Civil Appeals from a judgment ordering him to pay postminority support *254 for a disabled child and to pay a percentage of certain extraordinary expenses the mother had incurred for the child's benefit. The Court of Civil Appeals affirmed the judgment of the trial court; see Cohen v. Baker, 763 So.2d 248 (Ala.Civ.App.1998). We granted Dr. Cohen's petition for certiorari review. We affirm the judgment of the Court of Civil Appeals in part, reverse it in part, and remand.

I. Factual Background

Dr. Cohen and Jill M. Cohen Baker were divorced in 1992. The divorce judgment awarded custody of their 18-year-old daughter and their 14-year-old son, Joshua, to the mother and ordered the father to pay $1,525 per month in child support and postminority educational support. When the daughter reached the age of majority in 1993, the father's child-support payments decreased to $900 per month.

Shortly after graduating from high school in 1996, Joshua broke his neck while at the beach. As a result of the accident, Joshua is quadriparetic, i.e., he can move his arms and legs, but has weakness in them. Joshua testified that the strength and range of motion of his arms and shoulders are normal, except for weakness in his triceps. He also testified that his left side is weaker than his right. Joshua added that he has only limited use of the fingers on his left hand; however, he said, this limited use of his fingers does not prevent him from propelling his wheelchair. Joshua is unable to stand without assistance, although he hopes that in the near future he can be fitted with special leg braces that will enable him to stand. He is able to get in and out of his wheelchair without assistance and is able to attend to some, but not all, of his personal needs.

To accommodate Joshua's needs, the mother has renovated her home; the renovations include widening three doorways, removing a closet to allow Joshua access to a bathroom, and installing a wheelchair-accessible shower in that bathroom. The mother testified that she purchased a van for Joshua's use and had the van equipped with a wheelchair lift. She added that she planned to have the van's controls modified so that Joshua would be able to drive it himself.

Joshua is enrolled as a full-time student at the University of South Alabama in a pre-med program. He testified that he hoped to transfer to Auburn University soon. He stated that he has a personal computer; the record indicates that he is skilled in its use. He said he enjoys many of the normal aspects of life, such as going out with friends. He was not employed at the time of the hearing, but the record does not make it clear whether his unemployment was the result of his status as a full-time student or was the result of his disability. Joshua's neurologist testified that although Joshua is permanently disabled, he is employable. Both Joshua and his mother testified that he is unemployable. The father testified that Joshua is eligible for Social Security benefits.

On December 19, 1996, the mother filed a motion asking the trial court to require the father to pay the son's medical expenses that were not covered by insurance, and she asked for an attorney fee and court costs related to that motion. The father answered, denying that he had failed to pay any uninsured medical expenses. The mother amended her motion to request that the trial court modify the parties' divorce judgment and order the father to pay for Joshua's previously incurred special medical expenses and to pay for his health insurance after he reached the age of majority. The father answered by requesting the court to order that responsibility for all medical expenses not covered by insurance be divided equally between him and the mother.

After a hearing, the trial court ordered the father (1) to pay $785 per month in postminority support; (2) to pay the mother $22,794 to reimburse her for a percentage of certain extraordinary expenses she *255 had incurred on Joshua's behalf that were related to his disability; and (3) to pay $2,000 in attorney fees. In his petition for certiorari review, the father contends that the trial court erred in ordering him to pay postminority support in addition to the educational support he had already been ordered to pay and in ordering him to reimburse the mother for a percentage of the extraordinary expenses.

II. Postminority Support

The Court of Civil Appeals accurately stated the general rule concerning postminority support:

"In Alabama, the general rule is that a trial court has no jurisdiction to require a parent to provide support for a child who has reached the age of majority. Whitten v. Whitten, 592 So.2d 183 (Ala.1991). However, there are two exceptions to the general rule: (1) when an adult child is so mentally or physically disabled that he cannot support himself, Ex parte Brewington, 445 So.2d 294 (Ala.1983), and (2) when application for post-minority educational support is made before the child reaches the age of majority. Ex parte Bayliss, 550 So.2d 986 (Ala.1989)."

763 So.2d at 252. Although this Court established in Ex parte Brewington, 445 So.2d 294 (Ala.1983), that parents have a duty to support their children "who continue to be disabled beyond their minority," 445 So.2d at 297, the Court did not establish any specific method for trial courts to use when calculating support for a disabled adult child. In Martin v. Martin, 494 So.2d 97 (Ala.Civ.App.1986), the Court of Civil Appeals held that in determining such support the trial court should consider the child's needs, the parent's financial ability to meet those needs, and any income available to the child. After Brewington and Martin were decided, this Court adopted child-support guidelines that this State's trial courts are required to use in calculating the appropriate amount of child support to be paid by a noncustodial parent. See Rule 32, Ala. R. Jud. Admin. In DeMo v. DeMo, 679 So.2d 265 (Ala.Civ.App.1996), the Court of Civil Appeals held that those child-support guidelines should be used in establishing child support to be paid for disabled adult children as well as in establishing support to be paid for minor children.[1] Although Brewington, Martin, and DeMo provide helpful direction in determining an award of support for a disabled adult child, they do not answer the questions presented by this case: (1) What constitutes a "disability" for purposes of requiring a noncustodial parent to contribute to the support of a disabled adult child? (2) How is the amount of support to be calculated?

Other courts have defined "disability" in economic terms, i.e., as an adult child's inability to adequately provide for his or her economic needs because of a mental or physical infirmity. See, e.g., Presley v. Presley, 65 Md.App. 265, 500 A.2d 322 (1985), in which the court held that an adult child who was mildly retarded and who was able to earn only $14,200 per year was disabled within the meaning of the Maryland statute and therefore was entitled to support from her noncustodial parent. The Presley

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Bluebook (online)
763 So. 2d 253, 1999 WL 1242223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-cohen-ala-1999.