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 ...