Floyd v. Abercrombie

816 So. 2d 1051, 2001 WL 527499
CourtCourt of Civil Appeals of Alabama
DecidedMay 18, 2001
Docket2990676
StatusPublished
Cited by20 cases

This text of 816 So. 2d 1051 (Floyd v. Abercrombie) 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
Floyd v. Abercrombie, 816 So. 2d 1051, 2001 WL 527499 (Ala. Ct. App. 2001).

Opinion

816 So.2d 1051 (2001)

Cheryl Abercrombie FLOYD
v.
William Olan ABERCROMBIE.

2990676.

Court of Civil Appeals of Alabama.

May 18, 2001.
Rehearing Denied July 13, 2001.
Certiorari Denied October 19, 2001.

*1053 Thomas D. Motley of Motley, Motley & Yarbrough, Dothan, for appellant.

Jere C. Segrest and Thomas M. Little of Hardwick, Hause & Segrest, Dothan, for appellee.

Alabama Supreme Court 1001906.

PER CURIAM.

Cheryl Abercrombie (the "mother") and William Olan Abercrombie (the "father") were divorced by an April 15, 1998, judgment of the trial court; the divorce judgment incorporated an agreement of the parties regarding alimony, property division, custody, and child support for the parties' two sons, Brad and Chad.

On February 16, 1999, Brad's 19th birthday, the mother filed a petition seeking postminority support for Brad and a modification of child support for Chad, who was then 17 years old. On May 12, 1999, the mother amended her petition to seek an award for a child-support arrearage, alleging in that petition that the father had failed to pay child support for Chad after February 1999.

After conducting an ore tenus hearing, the trial court entered a judgment awarding the mother a $2,000 child-support arrearage for Chad for the period of March 1999 through September 1999; terminating the father's obligation to pay child support for Chad for periods after September 1999, because Chad began living with the father at that time; and denying as untimely the mother's request for postminority support for Brad. The mother filed a postjudgment motion; the trial court denied that motion. The mother appealed.

Part I

The mother first argues that the trial court erred in denying her request for postminority educational support for Brad on the basis that it was untimely because she filed her petition on Brad's 19th birthday. In order to resolve the issue raised, we must consider the origins of and the nature of postminority educational support under Alabama law.

Section 30-3-1, Ala.Code 1975, provides that "[u]pon granting a divorce, the court may give the custody and education *1054 of the children of the marriage to either [the] father or mother, as may seem right and proper." As interpreted by our supreme court, that statute "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." Ex parte University of S. Alabama, 541 So.2d 535, 537 (Ala.1989).

In Ex parte Bayliss, 550 So.2d 986 (Ala.1989), the Supreme Court of Alabama considered the issue whether a trial court has jurisdiction to require parents to provide postminority support for college education to children of a marriage terminated by divorce. The court held that because § 30-3-1 does not use the qualifier "minor" to modify "children," trial courts have jurisdiction to assure "that the children of divorced parents, who are minors at the time of the divorce, are given the same right to a college education before and after they reach the age of 19 years that they probably would have had if their parents had not divorced." Ex parte Bayliss, 550 So.2d at 995. In so holding, however, the Bayliss court placed an important fundamental qualification on post-minority-support jurisdiction:

"In a proceeding for dissolution of marriage or a modification of a divorce judgment, a trial court may award sums of money out of the property and income of either or both parents for the post-minority education of a child of that dissolved marriage, when application is made therefore, as in the case at issue, before the child attains the age of majority."

Ex parte Bayliss, 550 So.2d at 987 (emphasis added). Our supreme court has made it clear since its decision in Bayliss that the filing of a petition for postminority support before the child reaches the age of majority is jurisdictional. See Ex parte Barnard, 581 So.2d 489, 491 (Ala.1991) ("Because the mother's application for an award of college expenses was not made before [the child] attained the age of majority, the trial court no longer had jurisdiction to enter support or custody orders regarding [the child]."); accord, Lolley v. Yarborough, 643 So.2d 1009 (Ala.Civ.App. 1994) (acknowledging binding effect of Barnard).

In Massey v. Massey, 597 So.2d 1375 (Ala.Civ.App.1992), this court considered the effect of the jurisdictional time limitation on a postminority-support petition filed on the 19th birthday of the child for whom the support was sought. This court concluded that the petition for postminority support was untimely:

"Section 26-1-1, Ala.Code 1975, provides that a child receives the same legal rights and abilities as an adult `at the arrival at the age of 19 years.' Webster defines `birthday' as `the anniversary of one's birth' and `a year of life.' Webster's Collegiate Dictionary (7th ed.1976). On the 19th anniversary of her birth, a year has passed from the time that the child was 18. The child then arrives at the age of 19 and is an adult for the purposes of § 26-1-1(a).
"Our supreme court has specifically held that a petition for modification under Bayliss may not properly be filed after the child arrives at the age of 19. There is absolutely nothing in Bayliss, or its progeny, to recommend that the time frame be extended. We therefore hold that the petition in this case was untimely filed."

Massey v. Massey, 597 So.2d at 1376.

Brad turned 19 on February 16, 1999, which was the day after a state holiday, i.e., the third Monday in February (see § 1-3-8, Ala.Code 1975). The mother argues that because the last day that Brad was a minor was a holiday, she was entitled, pursuant to § 1-1-4, Ala.Code 1975, *1055 and Rule 6(a), Ala. R. Civ. P., to wait until the next succeeding working day to file her petition. Section 1-1-4 generally excludes holidays from the computation of "time within which any act is provided by law to be done" where the last day for doing the act is a holiday, whereas Rule 6(a) excludes holidays that constitute the last day of "any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute."

We do not agree with the mother's arguments. The Bayliss court, in delineating the right to postminority educational support, specifically noted that "`minority is a status.'" Ex parte Bayliss, 550 So.2d at 991 (quoting Davenport v. Davenport, 356 So.2d 205, 208 (Ala.Civ. App.1978)). In turn, the Barnard court noted that the trial court retains jurisdiction over the children of divorced parents only "during the children's infancy." Ex parte Barnard, 581 So.2d at 490. The principle to be gleaned from these precedents is that the power of a trial court to award postminority educational support is contingent upon, among other things, the filing of a petition during the existence of a particular status—the infancy of the child for whom support is sought. If the person for whom support is sought becomes an adult, and loses the status of a "child," that status cannot be restored, and the jurisdiction of the trial court cannot be resurrected. Thus, the premajority filing requirement announced in Bayliss, enforced in Barnard, and applied in Massey is not in the form of a specified filing period,

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Bluebook (online)
816 So. 2d 1051, 2001 WL 527499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floyd-v-abercrombie-alacivapp-2001.