Andrew Arthur Duerr v. Anne Marie Duerr (Appeal from Montgomery Circuit Court: DR-09-768.03) Affirmed. No Opinion.
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REL: 08/08/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2014 _________________________ 2121086 _________________________ Andrew Arthur Duerr v. Anne Marie Duerr Appeal from Montgomery Circuit Court (DR-09-768.03) PITTMAN, Judge. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.; Morgan v. Morgan, [Ms. 2120101, July 11, 2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2014); Bray v. Bray, 979 So. 2d 798, 800 (Ala. 2121086 Civ. App. 2007); and O'Neal v. O'Neal, 678 So. 2d 161, 164 (Ala. Civ. App. 1996). The appellee's request for the award of an attorney fee on appeal is denied. Thompson, P.J., and Moore and Donaldson, JJ., concur. Thomas, J., concurs in part and dissents in part, with writing. 2 2121086 THOMAS, Judge, concurring in part and dissenting in part. This is an appeal in a domestic-relations action. I concur as to the affirmance of the Montgomery Circuit Court's decision to reinstate its award of periodic alimony to Anne Marie Duerr. affirmance of However, the educational support. I trial respectfully court's dissent award of as to the postminority On October 4, 2013, our supreme court released Ex parte Christopher, [Ms. 1120387, Oct. 4, 2013] ___ So. 3d ____ (Ala. 2013), in which our supreme court expressly overruled Ex parte Bayliss, 550 So. 2d 986 (Ala. 1989). In overruling Bayliss, our supreme court specifically held that, "[a]lthough [this] decision does not affect final orders of postminority educational support already entered, our overruling of Bayliss is applicable to all future cases. Further, this decision also applies to current cases where no final postminority-support order has been entered or where an appeal from a postminority-support order is still pending." Christopher, ___ So. 3d at ___ (emphasis added). As I explained in my special writing in Morgan v. Morgan, [Ms. 2120101, July 11, 2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2014)(Thomas, J., concurring in part and concurring in the result in part), the above language in Christopher plainly 3 2121086 states that the holding in Christopher is applicable to any case in which an appeal of a postminority-educational-support order was pending at the time the supreme court's opinion in Christopher was released; there is no mention of an obligation of a party to have raised the issue before the trial court. The State Judicial Information System case-action-summary sheet in this case indicates that Andrew Arthur Duerr ("the former husband") filed this appeal on September 26, 2013, and that the appeal remained pending when Christopher was released on October 4, 2013. the opinion in Accordingly, it is my opinion that, based upon the plain language used by our supreme court, this court must reverse that portion of the trial court's divorce judgment ordering the former husband to pay postminority educational support, in accordance with the supreme court's holding in Christopher that "the child-custody statute does not authorize a court in a divorce action to require a noncustodial parent to pay educational support for children over the age of 19." ___ 4 So. 3d at ___.
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