Howell v. Dantone

115 So. 3d 179, 2012 WL 6062584, 2012 Ala. Civ. App. LEXIS 331
CourtCourt of Civil Appeals of Alabama
DecidedDecember 7, 2012
Docket2110290
StatusPublished

This text of 115 So. 3d 179 (Howell v. Dantone) 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
Howell v. Dantone, 115 So. 3d 179, 2012 WL 6062584, 2012 Ala. Civ. App. LEXIS 331 (Ala. Ct. App. 2012).

Opinion

PITTMAN, Judge.

Billy Wes Howell (“the father”) appeals from a judgment ordering him to be equally responsible, along with Patricia Dantone (Howell) (“the mother”), for the postminority educational expenses of Raven Howell, the parties’ daughter (“the daughter”). We reverse and remand.

Factual and Procedural Background

During the parties’ marriage, the mother’s three children from a previous marriage (two daughters and a son) and the father’s son from a previous marriage lived with them. The parties’ daughter was born in 1991. The parties were divorced by the Jefferson Circuit Court in August 1994, when the daughter was less than three years old. The divorce judgment incorporated the parties’ agreement that the mother would have physical custody of the daughter and the father would have standard visitation and pay child support of $850 per month. In 1995, the father filed a second complaint for a divorce, alleging that after the entry of the 1994 divorce judgment the parties had reconciled and had lived together as husband and wife until they separated in July 1995. The mother moved to dismiss the complaint, denying that the parties had reconciled and resumed their marital relationship. In an interlocutory order dated January 2, 1996, the Jefferson Circuit Court determined that after the first divorce the parties had reconciled and had thereafter lived in a common-law marriage. The following findings of fact were included in the order:

“The Court finds that from the evidence presented, the parties signed a joint tax return for the year 1994, as husband and wife, and [the mother] was [181]*181kept on [the father’s] group health insurance policy following the August 1994 [judgment]. The evidence indicates that on April 15, 1995, the [mother] was designated as the spouse of the [father] on a Qualified Joint and Survivor Annuity with the Carpenters Local # 127 Pension Trust Fund. Further the evidence indicates that in June of 1995, $11,000.00 dollars from the pension fund was withdrawn. The [father] testified he gave all the money to the [mother]. The [mother] admitted to using a substantial amount of the funds to pay off her van and to purchase a swimming pool. Furthermore, the [father] testified that he deposited the majority of his paycheck into the [mother’s] account, up until the parties’ separation on July 10,1995. Although the [mother] is not employed and has no apparent means of support, she has not sought to enforce the divorce [judgment] dated August 4,1994.
“The [father] testified that he agreed to the quick divorce, because the [mother] had accused him of molesting his step daughter and insisted that he agree to the terms of the divorce to prevent the Department of Human Resources (DHR) from removing the step daughter as well as the parties’ child from the home. The [father] further testified that the [mother] later admitted that the divorce was a sham and that they would continue to live together as man and wife. The [mother] denied this testimony.
“While the testimony of the parties is in direct contradiction, the court finds that the testimony of the [father] is the most credible. The court therefore finds that there was more than a mere reunification after a divorce in this situation. The evidence was sufficient to establish a common-law marriage relation between the parties. See generally, Skipworth v. Skipworth, 360 So.2d 975 (Ala.1978); Copeland v. Richardson, 551 So.2d 353 (Ala.1989); and Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.[1982]).”

On November 21, 1996, the Jefferson Circuit Court divorced the parties for the second time, awarded physical custody of the daughter to the mother, and ordered the father to pay child support of $323.70 per month. The mother and the daughter moved to Chilton County in 2000. The father continued to reside in Jefferson County.

In September 2009, the mother filed in the Chilton Circuit Court a petition to modify the divorce judgment, alleging that the daughter intended to attend college and seeking postminority educational support from the father. On July 29, 2011, the trial court held a hearing on the mother’s petition.

At the time of the hearing, the daughter had completed her freshman year at Troy University, had maintained a 4.0 grade-point average, and had been named to the chancellor’s list. She plans to major in biology and to become a nurse. The mother testified that the expenses of the daughter’s freshman year had been paid from the following sources: a Pell grant, a student loan, a scholarship, the daughter’s part-time job at a fast-food restaurant, and contributions from the mother and a maternal aunt. The maternal aunt stated that she had paid for the daughter’s textbooks and half the college tuition that the daughter “[could not] raise and that the Pell grants [did not] cover.” The mother did not state the amount of the daughter’s student loan or scholarship, and she was unsure as to the amount of the Pell grant. She presented an invoice indicating that the costs, exclusive of textbooks, for the first semester of the daughter’s sophomore [182]*182year beginning in the fall of 2011 would be $7,574.85.

The mother testified that she was disabled as the result of a brain tumor that had been diagnosed nine years earlier and that had affected her vision.1 Her income consists of disability payments of $577 per month and child-support payments of $323.70 per month. She acknowledged that the father had regularly made all his child-support payments until July 2011, five weeks before trial.

The mother stated that the father had visited the daughter only once after the divorce, when the daughter was 4 or 5 years old, and that, until the hearing in this case, the father and the daughter had not seen each other for 15 years. The mother denied that she had alienated or had attempted to alienate the daughter from the father, insisting that she had always encouraged a relationship between the two and that she had regularly sent the daughter’s report cards and photographs of the daughter to the father. The mother testified that, when the daughter was 16 years old, the daughter had telephoned the father to discuss her plans to attend college.

On cross-examination, the mother acknowledged that she had accused the father of molesting her two daughters by a previous marriage and that her accusation had precipitated the parties’ first divorce in 1994. She denied that the parties had reconciled or lived together as husband and wife after the first divorce, and, when confronted with the fact that the Jefferson Circuit Court had found otherwise and had granted the parties a second divorce, the mother stated that she “never could understand” the reason why a second divorce was necessary.

The daughter testified that her college expenses, including textbooks, totaled $7,600 per semester and that she had been awarded a Pell grant of $2,700 per semester. The daughter stated that she had applied for scholarships, but she did not state whether she had received any scholarships. She testified that she had wanted to have a relationship with her father and had tried on several occasions, beginning when she was about 12 years old, to speak to the father, but, she said, whenever she had dialed the father’s telephone number and identified herself to her paternal grandmother, who had answered the calls, the paternal grandmother had hung up the telephone.

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Cite This Page — Counsel Stack

Bluebook (online)
115 So. 3d 179, 2012 WL 6062584, 2012 Ala. Civ. App. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-dantone-alacivapp-2012.