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).”
I’m no attorney, but the Court’s ruling is just plain wrong: mom should *not* be able to obligate dad’s money without consulting with him first…it’s HIS money. This should’ve been made clear in their divorce settlement, but it’s also commmon sense and should be implied. Dad said he would not normally oppose the kids’ participation in these activities, but he doesn’t want his ex controlling his wallet. And even if dad was being a complete jerk and really did want “veto power,” this decision is *still* wrong. Their court order should be amended to stipulate that mom *must* consult with dad before obligating his money, dad *must* agree to reasonable and customary expenses, and if dad can’t afford the expense at that time that he be given an opportunity to pay in installments within a reasonable amount of time. Same would go for mom if dad wanted to obligate *her* money for the kids’ activities…goes both ways. This decision is just wrong, wrong, wrong! What a bunch of hooey!
I agree with both Court’s rulings. It is not wrong in the least. During the marriage (in my case) both children attended football, cheerleading, scouting etc. The reason two people are divorced is because they cannot get along on one level or another who in the H*** do you expect Mom and Dad to “AGREE” on activities for children. One party is punishing the other party and the children suffer. Do the Courts need to define this so that Mom and/or Dad can no longer dispute such petty issues? Forcing Mom and/or Dad to communicate is just giving one or the other permission to cause the other party H*** to argue over something that will be paid in the long run to begin with. That is just hogwash. Trust me, in my case, my EX will continue to find petty excuses not to pay something or another or even to argue causing me grief. This is exactly why I got a divorce under “verbal abuse”. So are you suggesting that I subject myself to additional “verbal abuse” each and every damn time my children attend activities? As in my situation anything outside of school that the children participate in which constitues furthing their learning and social skills outside of close family and friends constitutes as extra curricular activities (including attending birthday parties for children from school) NOW my EX wants me to pay him because he chose to throw birthday parties for the children. Obviously Mom and/or Dad chose to spend their money how they chose to, but when it comes to the children this is HOGWASH.. The children are being hurt not the parents.. Do what is right and if you don’t have the kids get another job. Me I have my kids 85% of the time and he can’t even keep them the 15% he fought for. Money is and always be an issue between people married or divorced.
I agree with EssGee 100%. Mothers usually expect Dad to pay for WHATEVER they want, without consideration being given to his pocketbook. It is sad that children suffer, but even in homes that are not broken, consideration is given for the family bank balance, and if it isn’t there, you usually don’t enroll your child. Thus the child suffers. But 9 times out of 10, ole Dad is a blank checkbook. My husband’s ex-wife has been horrible about it, and I can honestly say that my ex-husband paid for very little, because I had enough PRIDE to not expect him to. @ shegoodgrief, no wonder you got verbal abuse, look at how your post is peppered with curse words. Grow up. And I always respect someone more for saying the divorce was for irreconcilable differences rather than go into the gory details of how you were verbally abused, what a copout. The term “drama queen” comes to mind….. Imagine the image you are creating for your children….