What Qualifies as Extracurricular Expense in Alabama?

It’s routine for divorce judgments in Alabama, particularly the judgments resulting from agreements formed by cooperative parents like the ones I serve, to provide for the parents to share extracurricular expenses. When parents insert that provision, what expenses are they agreeing to share? We have some clarity on this question now from the Alabama Court of Civil Appeals.

The case is Routzong v. Baker, Case No. 2070987 (Ala. Civ. App. April 17, 2009). Dad appealed from the judgment of the Barber County Circuit Court finding him in contempt for failing to pay Mom his share of extracurricular expenses for their two sons.

The language on which Mom based her claim for reimbursement appears in the agreement of the parties that the trial court incorporated into the final judgment of divorce: “Any expenses such as braces, school expenses and extracurricular activities incurred in any month will be shared equally by the [mother] and the [father]. The [father] agrees to immediately reimburse the [mother] for any payments not made by the [father]  within 10 days after the [mother] provides receipt of payment.”

The total amount at issue was $2200. Someday I will understand the economics of appealing a judgment of $2200, but right now it eludes me when the cost of prosecuting an appeal case could easily exceed that amount. But I digress.

Mom’s definition of extracurricular activities encompassed “anything they do outside the school day, whether it’s an optional science project or fair, or a summer camp, football, baseball, basketball, church.” Dad insisted that because he and Mom had joint legal custody, he should be consulted before Mom incurred expenses if he was going to be required to pay expenses for them. When asked in court whether he disagreed with his son’s participating in activities such as music and sports, he said: “Not necessarily. But I needed to be consulted so that I could make the decision whether I could afford it or not. I have approximately $ 500 a month after I pay all my bills and child support. This agreement never intended to give [the mother] an open checkbook to spend my money however she [saw] fit.” Neither the trial court nor the appeals court said so, but this amounted to Dad’s having a veto power on any extracurricular activity, or at least any activity for which he would have to pay.

The trial court issued an analytical opinion in which it found that the agreement was clear and unambiguous, that the expenses for which Mom sought reimbursement were either similar to those the parties had funded before the divorce or were reasonably anticipated at the time of the divorce. The trial court specifically stated that “school expenses” included those expenses required for their sons’ participation in school activities and that the term “extracurricular activities” “is intended by the parties to cover those expenses required for the minor children’s participation in activities outside of school.” The trial court then dealt with Dad’s requirement that he be consulted: “Further, the Court cannot find anywhere in the agreement that the parties agreed and intended for the [mother], the primary custodial parent, to get permission from the [father], the noncustodial parent, for each and every nonextraordinary expense which was contemplated to be covered in their agreement.”

The trial court found Dad in contempt and ordered him to pay Mom $2200 plus an attorney fee, the amount of which the opinion doesn’t state. Dad appealed.

The appeals court acknowledged that Mom did not have a blank slate when it came to extracurricular activities. Specifically, it stated that, as a general proposition because the parents had joint legal custody, Dad had a right to be consulted about expenses that were “unusual or extraordinary.” The appeals court referenced the finding of the trial court, however, that the expenses for which Mom sought reimbursement were either similar to those the parties paid before the divorce or reasonably to be anticipated. “By finding that the expenses for which the mother sought reimbursement were ‘customarily and reasonably expected,’ rather than ‘unusual or extraordinary,’ the trial court implicitly rejected the father’s argument that the mother had, without consulting him, made ‘major decisions’ within the meaning of [Ala. Code] § 30-3-151(2) [one of the Alabama joint custody statutes].”

The trial court had found that the term “extracurricular activities” should have its usual and customary definition, and it included in the covered expenses those for activities like music that were not school-sponsored. Dad argued that this was ambiguous, citing definitions in two dictionaries that indicated that extracurricular activities were those outside the regular course of study but supervised or sponsored by the school. The appeals court cited previous Alabama appellate court rulings holding that extracurricular activities are those that

occur outside of school, or during after-school hours, and may be, but are not necessarily, sponsored by or conducted under the supervision of a school. See, e.g., McGowin v. McGowin, 991 So. 2d 735, 740 (Ala. Civ. App. 2008) (recognizing that summer camp is an extracurricular activity); Giardina v. Giardina, 987 So. 2d 606, 611 (Ala. Civ. App. 2008)(recognizing that sports and scouting are extracurricular activities); Tompkins v. Tompkins, 843 So. 2d 759, 763 (Ala. Civ. App. 2002) (recognizing that horseback riding, gymnastics, and dance lessons are extracurricular activities); Jones v. State, 753 So. 2d 1174, 1196 (Ala. Crim. App. 1999)(recognizing that “‘church activities such as choir'” and “‘playing in the school band'” are extracurricular activities). Routzong at 16 (emphasis added).

The appeals court also stated that the parties’ own history included payment for the very kinds of expenses for which Mom sought, and Dad refused, reimbursement. Based on these arguments, the appeals court ruled that the trial court was correct when it concluded that the term extracurricular activities as used in the settlement agreement was not ambiguous.

Finally, Dad argued that the trial court applied an improper standard in finding him in contempt. Dad argued that his failure to pay was the result of a good faith error in interpretation of the ambiguous term “extracurricular activities” and not the result of willfulness or bad faith, and Dad pointed out that the trial court never expressly used the term “willful” in describing his failure to pay. The appeals court, reiterating its holding affirming the trial court’s finding that the term was not ambiguous, ruled also that trial court had sufficient basis for its finding of contempt.

Although none of the trial court’s findings specifically refer to the father’s noncompliance as “willful,” we conclude that, reading the judgment as a whole, a “willfulness” finding is inescapable. Accordingly, we hold that the trial court used the proper standard. “It is completely within the trial court’s discretion to determine whether a party is in contempt. In reviewing a case alleging contempt, our review of the record is limited solely to determining if there is support for the trial court’s order.” Grant v. Grant, 849 So. 2d 186, 188 (Ala. Civ. App. 2002). The record contains support for the trial court’s order, and, accordingly, we hold that the trial court did not exceed the limits of its discretion in determining that the father was in contempt for failing to comply with the provisions of paragraph nine of the parties’ agreement incorporated into their divorce judgment. Routzong at 21.

Dad also argued on appeal that the trial court erred when it based its calculation of child support on the assumption that Mom provided health insurance when Dad was the one actually providing it. The appeals court said it could not consider this argument, however, because Dad failed to raise it with the trial court. “This court cannot consider arguments raised for the first time on appeal. Our review is restricted to the evidence and the arguments considered by the trial court. Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992); Abbot v. Hurst, 643 So. 2d 589 (Ala. 1994). See also Rule 4 (a) (3), Ala. R. App. P. (any error asserted in the trial court may be asserted on appeal).”