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Bulletin

Domestic Relations G.R. Fernambucq Is Ex Parte Bayliss Constitutional? Over the years, several areas of domestic relations law have created substantial work for lawyers. One that keeps on giving is the aftermath of Ex Parte Bayliss, decided in 1989. Th ere have been many, many cases decided by our appellate courts that have attempted to clear what one decision called a “thicket of speculation” in a 1991 decision. Th e Bayliss court instructed lower courts to consider several factors when addressing post minority education expenses and relied greatly on § 30-3-1, Ala. Code 1975, which has been around since the late 1800s. Th is code section, established by the Alabama Legislature, empowers the Courts of Alabama to award “custody and education” of the children as may seem right and proper, and such other orders “as their safety and well-being may require.” Th e case of Christopher v. Christopher, 2012 Ala. Civ. App. Lexis 357 was decided by the Court of Civil Appeals on December 21, 2012. It has not run its course through rehearing or certiorari as of this writing (January 31, 2013), but is a case to watch for whenever the fi nal decision by our appellate courts is decided. Th e appeal dealt with several issues in a post-divorce, post-minority support case, some of which we all see regularly. It also raises several constitutional questions about Bayliss. Th e parent being requested to contribute could not do so without experiencing “undue hardship;” that Bayliss discriminates against children of non-divorced parents as a class – making it unconstitutional; that requiring the non-custodial parent to pay toward these expenses is unconstitutional and discriminates against them, as divorced parents, as to the exercise of their right to make decisions concerning their child if they are otherwise fi t to do so; and fi nally – that the decision in Ex Parte Bayliss violates the doctrine of the separation of powers because the decision handed down by the Alabama Supreme Court encroached on the core function of our legislature – the power to make laws. Th e judgment of the trial court was due to be affi rmed by the appellate court since that court “is bound by the decision of our Supreme Court” whether they liked it or not. Th ere were four concurring opinions all of which addressed constitutional issues and several urged the Supreme Court to reconsider its decision in Bayliss. Th e concerns followed the rationale that the decision in Bayliss violates the doctrine of separation of powers because it encroached on the core function of our legislature – the power to make laws. Th e decision improperly overreached and usurped the power granted to our legislature by the Alabama constitution because it signifi cantly interfered with the plain intent of § 30-3-1, Code of Alabama (1975). Th ere is an obvious overlap between the branches wherein the judicial branch has as its duty the power to interpret laws promulgated by the legislative branch. An interpretation of § 30- 3-1, which has required divorced parents to involuntarily fund the college education of the adult off spring is, in at least one concurring opinion, a clear example of “overreaching” by the judicial branch in violation of the separation-of-powers doctrine. Th is argument hinges on the position that a requirement for divorced parents to pay post-minority educational support must have its genesis in the legislative branch, not the judicial branch. If the Supreme Court determines that Ex Parte Bayliss is unconstitutional, think of the questions that will arise. It certainly throws in the ditch any pending case (divorce or post-divorce) which is requesting post-minority educational cost. If a court previously ordered post-minority educational costs to be paid, can the obligor fi le a petition to modify requesting a termination? Can one be found in contempt for not paying something that has been found to be unconstitutional? Does Mr. Bayliss get his money back? We would be in a situation where there would be no authority for a trial court to order post minority educational costs, and we would be relying totally on the Alabama legislature, in its infi nite wisdom, to amend § 30-3-1 quickly, and in a way that it withstands future scrutiny by the courts. (FYI, the Grandparents Visitation Act is on version number 7, having last been determined to be unconstitutional in 2011). Time will tell. G Contributor G.R. Fernambucq 18 Birmingham Bar Association


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