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Birmingham Bar Association Bulletin - Winter 2013

Divorce Law Looking additionally to commonlaw definitions of “child,” the Court asserted that “at common law the parental support obligation ceased at the age of majority (citing the common law duty “to support and education one’s children during their minority”) and indicated that before the 1980’s, It had “uniformly defined ‘child’ in the context of divorce as a minor.” Ex Parte Brewington, decided in 1983, began a new trend by requiring a non-custodial parent to support a disabled child beyond the age of majority, as the Court found the “narrow interpretation” of the term “children” as minors to be “unacceptable,” stating “we believe the legislature intended that support be provided for dependent children.” Brewington thus provided the “springboard” for Bayliss, in 1987, to expand on this theory to require a non-custodial parent to pay college expenses for children beyond the age of majority. The problem with the interpretaseems to imply, since we have all seen individuals that could use a lot more direction and control. tions of those decisions (though the Court carefully noted that support for disabled children was “not before” It), is that a court “ may not interpret statutes to compensate for omissions” of the legislature. A Court is to explain, but “to change the statute under guise of construction is an infringement upon the legislative prerogative.” The age of majority, “controlled exclusively by statute,” is thus beyond reach of the courts, who are without the power to raise or lower said age “to serve a ‘public policy’ it thought desirable.” The Bayliss Court, then, “improperly overrode the statutory designation of the age of majority.” Addressing the doctrine of stare decisis, and acknowledging the 24 years during which litigants have since relied on what the Supreme Court has now declared erroneous law, the Court cited the greater importance of “admitting prior mistakes” and the original principle underlying §30-3-1, which “should ‘prevail over its later misapplication’ in Bayliss.” Thus, the Court states, “reversing Bayliss and returning to the legislature the power to decide if postminority educational support should be authorized in a divorce case does not make new law but, instead, ‘vindicates the old one from misrepresentation” and that Christopher “is remedial, returning the stream of judicial power to its proper channel.” We are now at the mercy of our legislature to get it right.2 In this case, the father argued the Acquiescence Doctrine – that if the legislature had disagreed with the decision, it could have enacted a law modifying §30- 3-1 or abrogating the holding in Bayliss. Since it had not, he argued, the legisla- 2 Alabama’s legislature has created seven versions of our Grandparents Visitation Act -- it’s latest attempt was invalidated on constitutional grounds in 2011. ture acquiesced to Bayliss by 24 years of silence, and “any original error had been healed by the passage of time.” The Court stated that this argument fails because of its unconstitutionality: “The assertion that the legislature has adopted a judicial interpretation by failing explicitly to reject it creates a method of amending a statute that the Alabama Constitution does not permit,”3 as per our Constitution, the judiciary shall never exercise legislative powers. The opinion carefully delineates the legislative process (requiring a senate and house, laws passed solely by bill referred to and acted upon by a standing committee of each house, recorded by majority vote, and presented to the governor for signature) and plainly states that “no law can be enacted or amended apart from the constitutionally mandated procedure” and that failure to follow said procedure creates “wholly void” law, “a mere nullity . . . imposing no legal obligation on any body.” Despite this assertion, the Court applied the decision prospectively, such that final post-minority support orders entered prior to the October 4th decision will not be disturbed, and applicability is to “all future cases” and those current cases “where no final post-minority support order has been entered or where an appeal from a postminority-support order is still pending.” G 3 The Court reasoned that in Bayliss, It rejected the “longstanding construction of §30-3-1 that ‘children of the marriage’ referred to minors only” and inquired, “if 24 years of silence since 1989 are construed to impress upon Bayliss a legislative imprimatur, what shall we say of the 137 years before Bayliss in which the legislature never spoke in opposition to this Court’s then prevailing interpretation of ‘children’ as minors?” Birmingham Bar Bulletin/ Winter 2013 19


Birmingham Bar Association Bulletin - Winter 2013
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