Fielding v. Fielding
Fielding v. Fielding
Opinion
Johnny M. Fielding ("the father") and Susan T. Fielding ("the mother") were divorced in 1997. Among other things, the divorce judgment awarded the mother custody of the parties' two children, ordered the father to pay child support, and provided that the mother could live in the former marital residence until she remarried or cohabited with a member of the opposite sex, or until the youngest child, a son, *Page 767 turned 19. The mother had the right to purchase the father's one-half interest at any time before or within six months following the occurrence of any of the abovementioned events. If the mother did not exercise her option within those six months, the father would then have the opportunity to purchase her one-half interest. If neither party purchased the other party's one-half interest, either party could request that the residence be sold and the proceeds divided equally.
The trial court, in an amended divorce judgment, reserved the issue of postminority-educational expenses. In September 1998, in response to the parties' respective petitions to modify, the trial court relieved the father of the duty of making child-support payments on behalf of the oldest child, a daughter, who had reached the age of majority. The judgment also required that the father pay one-half of the daughter's postminority-educational expenses.
In June 2000, the father filed a petition seeking the sale of the former marital residence and a reduction of his obligation to pay child support and postminority-educational support. In his petition, he alleged that the mother had received funds from her mother for the children's educations and that she would inherit a large portion of her mother's substantial estate. On July 10, the father amended his petition to allege that he was about to be unemployed because the manufacturing plant at which he was employed was closing at the end of that month. The trial court, on September 15, entered an order reducing the father's child-support payments. In that order the trial court "set aside" the prior postminority-educational-support orders until it held a hearing, which it set for December 2000. The mother filed a motion to amend the trial court's September 15 order, requesting specifically that the trial court not set aside the father's obligation to pay postminority-educational support but that the issue simply be reserved for a future hearing. The trial court denied her motion.
On December 5, the trial court entered another order, adjusting the father's child-support obligation because the father had found other employment. In that order, the trial court stated that "[a]ll issues regarding . . . obligations to pay [postminority-educational support] for the minor [sic] children . . . shall remain open until a further hearing. The [father] shall have the right to contest or attempt to modify his obligation to pay [postminority-educational] support for the minor [sic] children from the date of his petition filed on June 21, 2000."
The wife, on March 8, 2001, filed a motion requesting a hearing on the issues left open in the trial court's December 2000 order. She requested that the father be ordered to contribute to the postminority-educational expenses of both children. After a hearing, the trial court held the father in contempt for failing to pay the daughter's postminority-educational expenses since December 1999, ordered the father to pay $16,654.11 in past-due postminority-educational expenses incurred by the daughter, ordered the father to pay one-half of the future postminority-educational expenses of both children, and modified the paragraph allowing the mother to live in the former marital residence until the son reached age 19 so as to allow the mother to continue living in the home until the son completed his college education.
After his postjudgment motions were denied, the father appealed. He argues that the trial court erred by ordering him to pay $16,654.11 in past-due postminority-educational support, in ordering him to continue paying one-half of his children's postminority-educational expenses, and in *Page 768 modifying the property settlement in the divorce judgment by allowing the mother to reside in the former marital residence until the son completes his college education. After a review of the testimony and documentary evidence, we agree with the father that the trial court's judgment is due to be reversed in its entirety.
The father, who has a high school education, testified about his income. Although the father was making $3,096.35 per month in August 1998, he lost his job when the manufacturing plant at which he was employed closed in July 2000. He is presently employed as a jailer by the Etowah County Sheriff's Department. His annual gross income is $19,760, which translates to $1,647 in gross income per month. The father's expenses, including one-half the mortgage payment on the former marital residence and the mortgage payments on the house in which he lives with his second wife, total $1,414, including a $135 payment on some miscellaneous debts. The father's wife is employed at a grocery store. The father testified that he had approximately $100 in his checking account and that he had no savings accounts or certificates of deposit. Using the father's monthly gross income, without allowing for taxes and other deductions, the father has $233 per month in disposable income after paying his expenses out of which to contribute to the postminority-educational expenses of both children.
The record does not provide a breakdown of the daughter's educational expenses on a monthly or per semester basis. However, the award of approximately $16,200 in postminority-educational support, which allegedly represents one-half of the daughter's expenses for six semesters of her college career, indicates that *Page 769 the daughter's educational expenses total, on average, approximately $4504 per month. That amount is nearly twice as much as the disposable income the father would have available to pay those expenses.
The father argued at trial that he was simply unable to pay one-half of the postminority-educational expenses incurred by his daughter and that the trial court should reduce or terminate his obligation. Our supreme court has stated that a trial court has jurisdiction to "award sums of money out of the property and income of either or both parents for the post-minority education of a child . . . ." Ex parte Bayliss,
This court has reversed an award of postminority-educational support when "[o]rdinary arithmetic would indicate that after taxes and other deductions, the father has a disposable income barely sufficient to meet his current financial obligations." Jones v. Philpot,
We are convinced that the father has proven that he is unable to pay one-half of the postminority-educational expenses incurred by his daughter. The father first alleged his inability to pay in a motion filed on June 21, 2000, seeking to reduce child support and postminority-educational support. Our conclusion that the imposition of the obligation to pay those postminority-educational expenses places an undue hardship on the father is retroactive to that date. The father is still liable for one-half of any postminority-educational expenses the daughter incurred before that date. Because the record does not contain a breakdown of the daughter's expenses by month or by semester, we cannot determine the amount of the expenses incurred before June 21, 2000. On remand, the trial court must determine the amount of the daughter's postminority-educational expenses incurred before June 21, 2000, and then award the wife one-half of those expenses.
We have already discussed the father's income and expenses. Although the record contains some information about some of the costs associated with the daughter's attendance at Shelton State, neither the mother nor the son testified concerning the tuition per semester, the anticipated cost of books and supplies, or the cost of room and board, if applicable. This court has often reminded trial courts that, without such information, this court cannot determine whether an award of postminority-educational support poses an undue hardship on the parent ordered to pay those expenses. See Thrasher,
The property-division provisions of a divorce judgment become final 30 days after the judgment is entered. McGiboney v. McGiboney,
The appellee's request for an attorney fee on appeal is denied.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson and Pittman, JJ., concur.
Yates, P.J., concurs in the result.
Reference
- Full Case Name
- Johnny M. Fielding v. Susan T. Fielding.
- Cited By
- 11 cases
- Status
- Published