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Bittick v. Bittick

Alabama Court of Civil Appeals

August 30, 2019

Charles Stroud Bittick
v.
Emily Major Bittick

          Appeal from Jefferson Circuit Court (DR-16-901169)

          EDWARDS, Judge.

         Charles Stroud Bittick ("the father") and Emily Major Bittick ("the mother") were married in 2004. They have two children. After the parties separated in April 2016, the mother filed a complaint for a divorce in the Jefferson Circuit Court ("the trial court") in July 2016. In July 2017, the parties entered into a pendente lite agreement, which the trial court incorporated into an order, that prohibited the parties from having "overnight guests of the opposite sex past 9:00 pm when the children are present" and that reserved the issue of pendente lite child support so that the father could access financial records to better determine his income. The pendente lite order also required the father to pay the premiums for health-insurance coverage for the mother and the children and to pay the monthly mortgage payment on the marital residence. During the pendency of the divorce litigation, the father filed motions seeking to have the mother held in contempt for alleged violations of the provision of the pendente lite agreement respecting guests of the opposite sex.

         After a trial held over four days in January, March, and May 2018, the trial court entered a divorce judgment in July 2018, which, among other things, divided the parties' property, awarded the wife rehabilitative alimony, awarded the parties' joint custody of the children, and ordered the father to pay $2, 500 per month in child support. The divorce judgment further required the father to be responsible for payment of the children's health-insurance premiums, to be responsible for one-half of the noncovered medical expenses incurred on behalf of the children, and to pay one-half of "all extra-curricular activity expenses for the ... children including but not limited to summer camps[, ] cultural activities[, ] such as dance or music and athletic activities, school field trips, school fees, and any other reasonable expenses." The trial court also ordered the father to pay the mother $30, 000 representing pendente lite child support from the date of the filing of the divorce complaint. Both parties filed postjudgment motions directed to the divorce judgment, and, after a hearing, the trial court amended the divorce judgment in certain respects not relevant to the issues in this appeal. The trial court denied all other requests for an amendment to or alteration of the divorce judgment, and the father timely appealed.

         On appeal, the father raises several issues. He first argues that the trial court's award of child support should be reversed, in part, because he urges this court to overrule Dyas v. Dyas, 683 So.2d 971 (Ala. Civ. App. 1995), insofar as it requires a trial court considering child support, when the parties' combined monthly income exceeds the uppermost limit of the child-support-guidelines schedule, see Rule 32, Ala. R. Jud. Admin., to consider the ability of the obligor parent to pay as opposed to considering the ability of both parents to pay. He also urges reversal of the monthly child-support award on its merits, arguing that the $2, 500 award is so excessive and onerous as to be punitive and that the amount is not rationally related to the reasonable and necessary needs of the children. The father next argues that the trial court's judgment should be reversed insofar as it requires him to pay 50% of the costs of the extracurricular activities of the children and "other reasonable expenses" based on the trial court's failure to make specific written findings regarding extraordinary expenses for the children as, he contends, is required by Rule 32(C)(4), Ala. R. Jud. Admin. The father next challenges the trial court's lump-sum award of $30, 000 in pendente lite child support retroactive to the filing of the divorce complaint, arguing that the trial court should not have ordered support retroactive to the filing of the divorce complaint because he had made other payments to support the family during the pendency of the divorce litigation and because, he says, the mother did not present evidence to support the $30, 000 award. Finally, the father complains that the trial court erred by failing to find the mother in contempt of the pendente lite agreement regarding guests of the opposite sex.

         The facts pertinent to our resolution of this appeal are as follows. The father owns or has an interest in three separate business entities, two of which involve the purchasing and renting or sale of real estate and the third of which, CSB Consulting, Inc., involves point-of-sale systems. The father's income, according to his Child-Support-Obligation Income Statement/Affidavit ("CS-41 form") included in the record, is $19, 118 per month. According to the father, his income is derived solely from CSB Consulting, Inc.; he testified that the other two entities do not generate income. The father said that he pays $632 per month for health-insurance coverage for the children. The mother is self-employed as a wedding planner and also has a part-time position as a event coordinator for a local business. Her income, according to her CS-41 form, includes a yearly financial gift from her mother and is $4, 950 per month. Thus, the parties' combined income exceeds the uppermost limit of the child-support-guidelines schedule. See, e.g., Bradley v. Murphy, 221 So.3d 459, 464 (Ala. Civ. App. 2016) (recognizing that the uppermost limit of adjusted monthly combined income on the Rule 32, Ala. R. Jud. Admin., child-support-guidelines schedule is $20, 000).

         The mother testified and presented documentary evidence concerning her expenditures for herself and for the children during the parties' separation. The mother presented an exhibit outlining her expenditures on behalf of the children each month, which, the exhibit reflected, totaled $2, 576. The mother testified that one of the children had a tutor and that the children participated in certain cultural or extracurricular activities, like dance and art classes; the costs of the tutor and the children's activities are included in the mother's exhibit outlining her monthly expenditures for or related to the children. The father testified that he was willing to pay for the children to take art classes, and he specifically stated that he desired that one of the children resume soccer as an activity. The father did not voice disapproval of any of the activities in which the children were engaged.

         According to the mother, the father had paid her $2, 000 per month between their separation and November 2016 to assist her in paying household bills; however, she said, he had stopped paying her any money in November 2016. The mother testified that she had had to seek employment after November 2016 in order to pay the family's bills; she said that she had become employed in February 2017. The father testified that, during the protracted divorce litigation, he had paid the mortgage payment, the children's health-insurance premium of $632, and the mother's health-insurance premium each month; he also testified that he had paid the property taxes on the marital residence and $6, 500 for a new HVAC unit for the marital residence. According to the father, his expenditures related to the marital residence, the mother, and the children totaled approximately $3, 000 per month during the pendency of the litigation.

         The evidence suggested that the mother's boyfriend, J.W., had spent significant time with the mother both in and outside the presence of the children beginning some time after August 2016, when the mother and J.W., who had attended the same high school as the mother, became reacquainted. The mother admitted that, after the imposition of the 9:00 p.m. restriction, J.W. had stayed at the marital residence after 9:00 p.m. on one occasion when the children were present at a holiday party she hosted at the marital residence; the mother said that other persons were in attendance as well. J.W. testified that he might have left the marital residence after 9:00 p.m. on a few evenings when the parties had lost track of time while watching a movie; however, he testified that he had never left the marital residence later than 9:20 p.m. when the children were present. The mother admitted that she, the children, and J.W. had spent the night in the same residence, but not the same room, on a few occasions when they had been invited to stay as guests at the residences of others (i.e., at a friend's beach condominium and at a friend's lake house). She testified that she had not understood the prohibition to apply when she was not at the marital residence.

         The father first argues that this court should overrule Dyas v. Dyas, 683 So.2d 971 (Ala. Civ. App. 1995). In Dyas, this court discussed the application of Rule 32(C)(1), Ala. R. Jud. Admin., which states that "[t]he court may use its discretion in determining child support in circumstances where combined adjusted gross income is below the lowermost levels or exceeds the uppermost levels of the schedule." We explained that

"[w]hen the combined adjusted gross income exceeds the uppermost limit of the child support schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obligor's ability to pay for those needs."

Dyas, 683 So.2d at 973-74 (footnote omitted). The father contends that Dyas incorrectly requires consideration of solely the ability of the obligor parent to pay. The father argues that focusing solely on the ability of the obligor parent to pay results in a diminution of the other parent's duty to support the parties' children. Thus, he urges this court to overrule Dyas and its progeny.

         Although Dyas was an opinion of this court, the obligor parent in that case, Dr. Lloyd Chesney Dyas, sought review of this court's opinion in our supreme court. See Ex parte Dyas, 683 So.2d 974, 977 (Ala. 1996). In its opinion affirming this court's judgment, our supreme court reaffirmed this court's specific holding that, because Dr. Dyas's income exceeded the uppermost limit of the child-support-guidelines schedule, "[t]he amount of child support is within the discretion of the trial court, after it has considered both the reasonable and necessary needs of the children and the ability of Dr. Dyas to pay for those needs." Ex parte Dyas, 683 So.2d at 977. Thus, our supreme court has indicated that, in determining the proper child-support award in an action involving parents whose combined monthly income exceeds the uppermost limit of the child-support-guidelines schedule, the ability of the obligor parent is the second relevant inquiry, after the determination of the reasonable and necessary expenses of the children. We are not at liberty to alter the pronouncement of our supreme court, see Ala. Code 1975, § 12-13-16, and, therefore, we reject the father's request that we overrule Dyas and its progeny. See Thomas v. Williams, 21 So.3d 1234, 1236 n.1 (Ala. Civ. App. 2008) (stating that "this court is bound by the precedent of our supreme court, and, therefore, we are unable to overrule prior caselaw in order to alter a well-settled [legal principle]").

         The father also contends that the trial court's award of $2, 500 in child support is "so excessive and onerous as to be punitive" and "is unsupported by the evidence as it does not rationally relate to the reasonable needs and necessities of the children on a monthly basis." Rule 32(C)(1) indicates that, in circumstances such as those in the present case, when the amount of the combined monthly income of the parents exceeds the uppermost limit of the child-support-guidelines schedule, the amount of child support lies within the trial court's discretion.

"However, the trial court's discretion in these circumstances is not unbridled. The award of child support must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and it must reasonably ...

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