A Textbook Example of Dicta

Okay, law students, gather ’round. This is how an appeals court uses dicta. For the unitiated, “dicta” is a term for the comments or observations of an appellate court that are not directly relevant to the case. They have no direct precedential value but may become “tea leaves” that provide hints of the court’s thinking. Check out Trousdale v. Tubbs, Case No. 2040744 (Ala. Civ. App. November 10, 2005).

The case involved post-divorce adjustment of child support and was generally unremarkable. The child had changed homes from the mother to the father and back to the mother, and the court observed that the parents had been in litigation “almost continuously” since their divorce. The issue on appeal was whether the mother was entitled to recover arrearage for past-due child support from the father.

The trial court had noted that it had not yet ruled on the issue of child support arrearage, but the mother appealed, arguing that the trial court had erred by refusing to consider the arrearage issue. The issue was not yet ripe for appeal, because the trial court’s order was expressly not yet final. The Appeals Court could have said so and left it at that. Its decision to have something to say anyway is where the dicta come in.

The Appeals Court (for no particular apparent reason) quoted Ex parte State ex rel. Lamon, 702 So. 2d 449 (Ala. 1997).

It is well settled that child support payments become final judgments on the day they are due and may be collected as any other judgment is collected; and that payments that mature or become due before the filing of a petition to modify are not modifiable. See State ex rel. Howard v. Howard, 671 So. 2d 83 (Ala. Civ. App. 1995); Cunningham v. Cunningham, 641 So. 2d 807 (Ala. Civ. App. 1994); Glenn v. Glenn, 626 So. 2d 638 (Ala. Civ. App. 1993); Frasemer v. Frasemer, 578 So. 2d 1346 (Ala. Civ. App. 1991); Barnes v. State ex rel. State of Virginia, 558 So. 2d 948 (Ala. Civ. App. 1990); Endress v. Jones, 534 So. 2d 307 (Ala. Civ. App. 1988). Furthermore, it is well settled that a trial court has no power to forgive an accrued arrearage. See, State ex rel. McDaniel v. Miller, 659 So. 2d 640 (Ala. Civ. App. 1995); Hardy v. Hardy, 600 So. 2d 1013 (Ala. Civ. App. 1992), cert. denied, Ex parte Hardy, 600 So. 2d 1016 (Ala. 1992).

Then it said what it could have said at the outset, that the mother’s appeal is premature and that therefore her appeal is due to be dismissed. In doing so it provided a perfect example of the Appeals Court’s use of pure dicta to telegraph to the trial court (and others similarly situated) how they should rule on cases like this. Get your wallet ready, Dad.

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