Christopher v. Christopher

¶1(concurring specially).

¶2I write specially to provide further support for the Court’s reversal of Ex parte Bayliss, 550 So.2d 986 (Ala.1989). Specifically, as I explained in my special writing in Ex parte Tabor, 840 So.2d 115, 123-30 (Ala.2002) (Moore, C.J., concurring in part and dissenting in part), Bayliss violated (1) the separation-of-powers doctrine and (2) the fundamental rights of parents.

¶3I. Separation of Powers

¶4A. Redefining the term “child’’ is a legislative, not a judicial, function.

¶5“[W]e do not subscribe to the doctrine that the judiciary can or should usurp the *73legislative function in a republican form of government.” Hamilton v. Smith, 264 Ala. 199, 201, 86 So.2d 283, 285 (1956). The action of the Bayliss Court in changing the common-law rule that child-support obligations end at the age of majority was not a judicial act of applying existing law but was rather a legislative act of creating a new rule for future application. “ ‘[T]o declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative....”’ Sanders v. Cabaniss, 43 Ala. 173, 180 (1869) (quoting Thomas M. Cooley, Constitutional Limitations 91-95 (1868)). See also DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998) (“[I]t is our job to say what the law is, not to say what it should be.”). The legislature, not the judiciary, has “special competency to make ... prospective general rules.” Ex parte Key, 890 So.2d 1056,1063 (Ala.2003).

¶6By changing the common-law definition of “child,” the Bayliss Court not only misread § 30-3-1, Ala.Code 1975, and ignored § 1-3-1, Ala.Code 1975, but also violated the separation-of-powers doctrine by usurping the legislative function of making law. As Judge Thomas of the Court of Civil Appeals wrote: “I am concerned that the decision in Ex parte Bayliss violates the doctrine of the separation of powers because the decision encroached on the core function of our legislature — the power to make laws.” Christopher v. Christopher, 145 So.3d 42, 59 (Ala.Civ.App.2012) (Thomas, J., concurring specially). See also Joseph D. Ficquette, Post-Minority Educational Support: Good, Intentions Gone Terribly Awry, 4 Jones L. Rev. 73, 82 (2000) (“[T]he Supreme Court created new law to allow trial courts the jurisdiction to award and enforce post-minority educational support. This is a clear usurpation of legislative power given to the legislature in the state Constitution.”); TenEyck v. TenEyck, 885 So.2d 146, 158 (Ala.Civ.App.2003) (reversing a judgment denying an award of postminority educational support on the ground that Bay-liss “overstepped the constitutional] boundary between the legislature's] duty to make laws and the court’s duty to rule on those laws”).

¶7B. The “conscience and feeling of justice” test is essentially legislative.

¶8The Bayliss Court created an entitlement to postminority educational support “because of what we perceive to be just and reasonable in 1989.” 550 So.2d at 993. Rejecting the common law and statutory law, the Court also explicitly reversed eight previous appellate cases because “the ground or reason of those prior decisions by the Court of Civil Appeals would not be consented to today by the conscience and feeling of justice of all those whose obedience is required by the rule on which the ratio decidendi of those prior decisions was logically based.” Id. at 994.8

¶9This curious language asserting a generic right to assess the “conscience and feeling of justice” of unascertained persons as a basis for judicial policy-making originated in a 1938 law-review article. See Rudolph Laun, Stare Decisis, 25 Va. L.Rev. 12, 22 (1938) (stating that a court is more likely to follow a rule of law from a prior case if “it corresponds to the feeling of justice of the population or that part of the population whose obedience is required by the rule involved in this ratio decidendi ”). In the months before Bayliss was decided, *74the Justice who authored that opinion had adopted in special writings Laun’s “conscience and feeling of justice” test to decide whether to follow or to reject prior caselaw. See Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90, 96 (Ala.1989) (Houston, J., concurring in part and dissenting in part and citing Laun); Central Alabama Elec. Coop. v. Tapley, 546 So.2d 371, 385 (Ala.1989) (Houston, J., dissenting); Southern States Ford, Inc. v. Proctor, 541 So.2d 1081, 1093 (Ala.1989) (Houston J., concurring specially and citing Laun).

¶10In Bayliss, the “conscience and feeling of justice” test found majority support. Employing its own subjective assessment of the state of public opinion as a basis for judicial policy-making, the Court launched deeply into the legislative realm. Determining the current “conscience and feeling of justice” of the governed that would justify departure from settled law, however, surely is a legislative and not a judicial task. See Benjamin Cardozo, The Nature of the Judicial Process 141 (1921) (“[The judge] is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.”). The Justice who authored Bayliss conceded that the Laun test was quite subjective:

“If I determine that the ratio decidendi — the underlying reason — for the rule of law would not hypothetically be consented to today by the conscience and the feeling of justice of the majority of all those whose obedience is required by that rule of law, then I will vote to change the rule of law. This test, of course, is not completely objective. There is a great deal of subjectivity in it. However, it is a standard that I use.”

¶11Gorman Houston, Jr., Keynote Address to the Incoming Students at the University of Alabama School of Law, 18 J. Legal Prof. 5,13 (1993).

¶12Professor Laun justified his “feelings” test for judicial innovation on the ground that judges were better lawmakers than legislators. “In consideration of the arbitrariness of many legislators who believe themselves to be legally omnipotent, it may with reason be claimed that judge-made law can be a much more adequate and stable form of law than statutes.” Laun, Stare Decisis, 25 Va. L.Rev. at 25. Laun’s preference for judicial lawmaking formed the philosophical basis of Bayliss and its malleable “conscience and feeling of justice” test.9 Although the Court, employing the Laun test, felt itself free to write its own policy preferences into § 30-3-1, or any other statute,10 the Alabama Constitution does not permit such liberties. “Great care must be exercised by the courts not to usurp the functions of other departments of government.” Finch v. State, 271 Ala. 499, 503,124 So.2d 825, 829 (1960) (citing Ala. Const.1901, Art. III, § 43). Among the myriad of judicial tests that have been devised over the years, surely the “feelings” test adopted in Bay-liss is one of the most unusual. Even if the feelings of Justices could form a basis for lawmaking, such a usurpation of the legislative function is undoubtedly unconstitutional. “In the government of this state ... the judicial [department] shall *75never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.” Ala. Const.1901, Art. Ill, § 43.

¶13C. Policy-making is a legislative function.

¶14The “feeling of justice” test provided the Court a blank check to make or unmake law whenever it subjectively felt the public would approve of the change. Our system of constitutional government, however, expresses the popular will through electoral representation in the legislature, not through judicial assessment of the tide of public opinion. The determination of public policy as a basis for lawmaking is a legislative, not a judicial, function. Thus what this Court “perceive[d] to be just and reasonable in 1989,” Bayliss, 550 So.2d at 993, does not suffice to override or rewrite legislative policy to the contrary. “[T]he legislature, and not this Court, has the exclusive domain to formulate public policy in this state.” Boles v. Parris, 952 So.2d 364, 367 (Ala.2006). See also Cline v. Ashland, Inc., 970 So.2d 755, 758 (2007) (See, J., concurring specially) (“The Legislature is entrusted with making the public policy of this State, whether or not it is public policy of which this Court would approve.”); Beasley v. Bozeman, 294 Ala. 288, 290, 315 So.2d 570, 571 (1975) (“The Legislature’s power should not be interfered with unless it is exercised in a manner which plainly conflicts with some higher law.”); and Warren v. Alabama Farm Bureau Cotton Ass’n, 213 Ala. 61, 64, 104 So. 264, 267 (1925) (“When the Legislature ... speaks [in conformity with the Constitution], whether it be governed by age-old principle or by merely ephemeral expediency, it eliminates the question of public policy from the cognizance of courts in their administration of the legislative act.”). By forthrightly engaging in policy-making, the Bayliss Court exercised legislative power, an action expressly forbidden by Art. Ill, § 43, of the Alabama Constitution. See Finch v. State, 271 Ala. at 504, 124 So.2d at 830 (“[The judicial branch of government] is under restraint (§ 43, Constitution 1901) from imposing its methods or substituting its judgment for that of the executive and legislative branches of the government.”).11

¶15D. The “Evening Dress” Metaphor.

¶16After announcing the overruling of eight cases based on the “feelings” test, the Bayliss Court offered as further justification for its decision a sartorial metaphor:

“In making this holding, we are not the first by whom this new [rule] is tried, for we have cases from other jurisdictions, referred to by Justice Holmes as ‘the evening dress which the newcomer puts on to make itself presentable according to conventional requirements,’ Book Notice, 14 Am. L. Rev. 233-34 (1880).”

¶17550 So.2d at 994. Holmes was not referring to cases from other jurisdictions but, instead, was referring to the realist philosophy that judges first decide the outcome of a case and then adorn it with legal reasoning (“the evening dress”) suitable to the result. He prefaced his “evening dress” remark with the statement: “The form of continuity [in the law] has been kept up by reasonings purporting to reduce everything to a logical sequence....” *76Book Notice, 14 Am. L. Rev. at 234. Holmes also said, however, that he did “not expect or think it desirable that the judges should undertake to renovate the law. That is not their province.” Oliver Wendell Holmes, “Law in Science and Science in Law,” Collected Legal Papers 239 (1920). A former Alabama Supreme Court Justice offered a similar sentiment: “The temptation to weaken the separation of powers often comes in very appealing attire.” Harold F. See, The Separation of Powers and the Public Policy Role of the State Court in a Routine Case, 8 Tex. Rev. L. & Pol. 345, 352 (2004). The dazzling evening dress of policy innovation rightly belongs in the legislative, not the judicial, closet.

¶18E. Misconstruing precedent to serve policy-making goals.

¶19A further rationale of the Bayliss Court for requiring a noncustodial parent to provide postminority educational support was that the State was a necessary party to every divorce proceeding and thus could independently assert its own interests in custody and support decisions.

“While the rights of the parties to the divorce action must be fully respected, the public occupies the position of a third party in a divorce action; and the court is bound to act for the public. Flowers v. Flowers, 334 So.2d 856 (Ala. 1976); Hartigan v. Hartigan, 272 Ala. 67,128 So.2d 725 (1961); Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945).”

¶20550 So.2d at 994 (emphasis added). Building on this premise, the Court argued that parents have an obligation to educate their children for the benefit of the State. “ ‘ “It is a duty which the parent not only owes to his child, but to the state as well, since the stability of our government must depend upon a well-equipped, a well-trained, and well-educated citizenship.” ’ ” Id.(quoting Ogle v. Ogle, 275 Ala. 483, 487, 156 So.2d 345, 349 (1963), quoting in turn Pass v. Pass, 238 Miss. 449, 458, 118 So.2d 769, 773 (1960)).

¶21The cases cited for the proposition that noncustodial parents have a legal obligation to make educational support payments “for the stability of our government” are inapposite. Flowers v. Flowers, 334 So.2d 856 (Ala.1976), indeed noted that in a divorce action “the court is bound to act for the public which is, in effect, a third party,” 334 So.2d at 858, and cited Hartigan v. Hartigan, 272 Ala. 67,128 So.2d 725 (1961), as its source. Hartigansimilarly stated: “[SJuits [for divorce] are of a tripartite character, wherein the public occupies in effect the position of a third party, and the court is bound to act for the public.... ” 272 Ala. at 71, 128 So.2d at 728. Hartiganin turn relied on Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945), which repeats the same statement about the public being a third party to a divorce action. 247 Ala. at 119, 22 So.2d at 515 (quoting Spafford v. Spafford, 199 Ala. 300, 308, 74 So. 354, 358 (1917)). None of these cases, however, identifies the nature of the public’s interest.

¶22Weissinger further quoted from Spafford “ ‘that in cases of this character questions of mere legal niceties in regard to pleading should not interfere with the meritorious consideration of the cause,’ ” 247 Ala. at 119, 22 So.2d at 515, thus indicating that the referenced public interest may not be the furthering of “the stability of our government,” but instead a concern that the formalities of civil procedure not impede a just outcome of the proceeding. Spafford, in turn cited two cases for the proposition that the public is a third party to a divorce proceeding. In Wilkinson v. Wilkinson, 133 Ala. 381, 383, 32 So. 124, 124 (1902), the Court stated that the trier of fact may ex mero motu “direct an inqui*77ry to ascertain the fact of the existence of a defense.” Thus, like in Spafford, the interest of the public in the matter is to ascertain the truth, even if the parties’ presentation of the facts is inadequate. In Wilkinson, the court on its own motion ordered a deposition of the wife. Again, “the stability of our government” does not seem to be the public interest at stake.

¶23In Powell v. Powell, 80 Ala. 595, 1 So. 549 (1887), also cited in Spafford,, we finally arrive at the source of the public-interest rule and its underlying rationale. The Powell Court quoted from a family-law treatise the familiar statement that we have now traced back through 100 years of caselaw: “ ‘A divorce suit, while on its face a mere controversy between private parties of record, is, as truly viewed, a triangular proceeding, sui generis, wherein the public or government occupies in effect the position of a third party.’ ” 80 Ala. at 598, 1 So. at 550 (quoting 2 Joel Prentiss Bishop, Marriage and Divorce (1852)). After quoting Bishop, the Court quotes Ribet v. Ribet, 39 Ala. 348, 349 (1867), for the following statement: “ ‘The court is bound to act for the public in such cases, and so has the right to hear proofs not strictly within the allegations of the bill and answer.’ ” 80 Ala. at 598, 1 So. at 550. Thus, as in Spafford,, the Powell Court tied the public interest in a divorce case to the procedural discretion of the trial judge independently to develop the evidence. Such a rationale is a far cry from the stability-of-our-government logic of the Bayliss Court.

¶24These 19th-century courts, reflective of the Christian culture that originally animated our institutions, placed these procedural considerations in the larger context of protecting the sanctity of the institution of marriage.

“The institution of marriage, established by divine, and perpetuated and guarded by human, authority, constitutes the foundation of organized society, protects private and public morality and virtue, and moulds the character of the citizens of the commonwealth. While an agreement to marry is regarded generally as a civil contract, by its consummation contractual relations of a special kind are formed, and the status of the parties, and their duties to each other and to the public, are ascertained and fixed. Extraordinary and exclusive personal relations are created, to continue so long as both parties may live; and public interests are involved in the strict and complete observance of the marital vows and covenants. The marriage relation can not be rescinded or annulled by the mere volition of the contracting parties. Its preservation is deemed so essential to the public weal that it can not be dissolved except by the sovereign power, or by a court of competent jurisdiction for causes prescribed by law, on sufficient allegations and satisfactory proof.

“The settled policy of the state, founded on these considerations, prohibits a divorce being granted by consent or collusion, or on the confessions of either or both of the parties, or for want of pleading or mispleading, or laches in making defense.”

¶25Powell v. Powell, 80 Ala. at 597, 1 So. at 550. The view of marriage as a divine institution that may not be sundered for light, transient, or insubstantial reasons required the careful scrutiny of divorce eases by a trial court, not to serve the independent interests of the State, but to preserve the stability of the institution that “constitutes the foundation of organized society.”

¶26The public interest in a divorce case was to preserve the institution of marriage by allowing its dissolution for only the weightiest reasons. Public policy in the 19th *78century prohibited divorce on the whim of the parties. Mutual consent was insufficient. The trial court scrutinized the evidence to ensure that the grounds alleged were genuine and not merely collusive. The courts respected marriage vows and, unless powerful reasons compelled a different result, required the parties to observe them. The Powell Court continued:

“By the loose practice, too prevalent, and the facility with which divorces are sometimes obtained, the courts may be, in a measure, responsible for the extending want of a due appreciation of the sanctity of the marital relation. Whether or not defense be made, the court should feel bound by the highest considerations of duty and public policy to watch the interests of the community, otherwise undefended and unprotected. The appearance or indication of consent, express or implied, or of collusion, should stimulate the vigilance of the court, and a closer scrutiny of the evidence.”

¶2780 Ala. at 598,1 So. at 550.

¶28In Ribet v. Ribet, the Court further expounded on the community’s interest in preserving the marriage covenant.

“No one deserves to succeed in a suit to dissolve the bonds of marriage, that foundation upon which the whole framework of civilized society may be said to rest, who does not come into court without great blame; and it is the right and the duty of the court to be governed by the facts of the case going to establish its true character, no matter how they may be elicited. Bishop[12] says: ‘A maxim in these suits, therefore, is, that a cause is never concluded as against the judge; and the court may, and, to satisfy its conscience, sometimes does, of its own motion go into inquiry of matters not involved in the pleadings.’ ”

¶2939 Ala. at 349-50. Responding to its high calling to defend marriage, the Court in Ribetrefused a divorce to a husband and wife who were mutually guilty of violating their vows. “If both are guilty of such want of fidelity to their matrimonial vows, whether in one way or another, as goes to show that neither is strictly an ‘aggrieved’ party, the court will not disturb the binding force of that great bond of society, the marriage contract.” 39 Ala. at 350.

¶30The preceding case history of the origins of the legal principle of a public interest in divorce proceedings shows that the statist concept attached to this hallowed history by the Bayliss Court misrepresented these precedents. The public interest in a divorce proceeding is not to further the interests of the State per se, as Bayliss claimed, but rather to safeguard the institution of marriage by ensuring that the parties fulfill their vows. Ribetand Powell do not stand for the proposition that the State as a third party has a right to compel parents to educate their children to serve the State, but rather that the government has an obligation to defend the “sanctity of the marital relation” from “loose practice” and easy divorce. The role of the court in acting for the public as a third party in a divorce action is to act independently of the parties, their pleadings, and evidence and to develop the case as needed to protect the institution of marriage — not to impose statist imperatives of higher education unrelated to preservation of the marital bond on families already reeling from divorce. By wrongly summoning an inapplicable principle of family law, the Bayliss Court distorted this Court’s precedents in service of its unwarranted excursion into legislative policy-making.

¶31*79II. The Fundamental Rights of Parents

¶32By mistakenly interpreting this Court’s precedents to convert a principle intended to protect the sanctity of marriage into an instrument to serve State power, the Bay-liss Court also failed to observe the God-ordained jurisdictional boundaries between the State and the family recognized in our law. See, e.g., Powell, 80 Ala. at 597,1 So. at 550 (stating that marriage was established by divine authority). The health of civil society depends on an appropriate respect for those institutions that mediate between the individual and the State and provide the relational richness that gives life substance. Chief among these are the church and the family. Each has its own government and sphere of authority. See Ex parte G.C., 924 So.2d 651, 674-77 (Ala.2005) (Parker, J., dissenting). Compare Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 347-70 (2002) (Moore, C.J., dissenting) (examining respective jurisdictions of the church and the State).

¶33Under Bayliss, the trial court, in deciding whether to order payment for postminority college expenses, assesses “the child’s commitment to, and aptitude for, the requested education” and may also consider “the child’s relationship with his parents and responsiveness to parental advice and guidance.” 550 So.2d at 987. These matters, which fall within the sphere of family government, are not suitable for judicial determination, despite the Bayliss Court’s ascription to trial courts of “the wisdom of Solomon in these domestic matters.” Id. at 995.

“The State, by and through its elected judges, should not be the director of education for children.... [T]he State is then put in the position of determining which child is entitled to receive support and which child is not. This, in essence, breaches a wall of separation between the State and the family that should be, and has been, ardently guarded throughout history.”

¶34Ex parte Tabor, 840 So.2d at 126 (Moore, C.J., concurring in part and dissenting in part).

¶35The Bayliss Court entered into a realm of internal family decision-making that has constitutionally been recognized as insulated from State intrusion. “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). See also Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (“Simply because the decision of a parent is not agreeable to a child or because.it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.”); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.”); Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (noting that “the Constitution protects the sanctity of the family”); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”); Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (“[C]onstitutional interpretation has consistently recognized that the parents’ claim to authority in their own household *80to direct the rearing of their children is basic in the structure of our society.”); Prince, v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”); and Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (recognizing “the power of parents to control the education of their own”).

¶36“This Court has also recognized the fundamental nature of parental rights.” Ex parte E.R.G., 73 So.3d 634, 643 (Ala.2011). See also Ex parte G.C., 924 So.2d at 661 (Stuart, J., concurring specially) (“Children are a gift from God.... Parents have God-given rights concerning their children, which are and should be protected by state government.” (footnote omitted)); K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003) (“The right to parent one’s child is a fundamental right....”). The Bayliss Court did not once refer to this line of precedent concerning “the private realm of family life which the state cannot enter.” Prince, 321 U.S. at 166.

¶37Although parents who resort to the divorce courts voluntarily surrender a portion of their decision-making autonomy, that curtailment should be no greater than necessary to resolve the dispute at issue. Courts should be wary of further disturbing the residual affection and mutual sense of responsibility between parents that may yet survive the stress of divorce. Thus, arbitrarily intruding the State into parental decision-making, even after divorce, is unwarranted and is inconsistent with the recognition that “it is a natural parent, not the state, who has a fundamental right to the care, custody, and control of a child.” Meadows v. Meadows, 3 So.3d 221, 235 (Ala.Civ.App.2008) (Moore, J., concurring in the result).

¶38The Bayliss Court, intent on creating an entitlement to the payment of college expenses for adult children of divorced parents, did not pause to consider the weighty precedents that limit the power of government to supersede parental authority. “The metes and bounds that separate each branch of government is of great importance, but that barrier that separates government from family is of even greater importance and must be maintained if our rights are to remain secure.” Ex parte Tabor, 840 So.2d at 126-27 (Moore, C.J., concurring in part and dissenting in part).

¶39III. Conclusion

¶40The assumption of legislative power by the Bayliss Court, coupled with its overreaching intrusion into the realm of parental decision-making, raises constitutional questions that underscore and complement this Court’s decision to overrule Bayliss and to reverse the decision of the Court of Civil Appeals.

¶46(dissenting).

¶47I find Justice Shaw’s well written dissent highly instructive, and I agree with many aspects of it, both Parts I and II. I am more inclined, however, than is he to consider the term “children of the marriage” to be ambiguous and to use much of the authority and reasoning he employs in the service of construing that language.

¶48That said, in the calculus I would employ, it would not be necessary to decide if those principles and authorities from Justice Shaw’s writing, alone, are enough to justify the interpretation of § 30-3-1, Ala. Code 1975, to which both of us would adhere. At worst, the question is a close one, and, in the end, the acquiescence doctrine ought be the deciding factor. My employment of the acquiescence doctrine would not be the employment of an “unconstitutional” means of modifying the statute in the years since Ex parte Bayliss, 550 So.2d 986 (Ala.1989), was decided — as the doctrine is cast, and then rejected, in Part V of the main opinion — but as a tool to take measure of the Bayliss holding regarding the legislative intent in enacting the statute. As Justice Shaw notes, in the intervening almost quarter century since Bayliss was decided, “ ‘[t]he Alabama legislature has not seen fit to replace or clarify that statute despite the thousands of child support cases decided each year in this state.’ ” 145 So.3d at 84 n. 17 (quoting 1 Judith S. Crittenden & Charles P. Kindregan, Jr., Alabama Family Law § 24:3 (2008)).13 The main opinion, however, rejects the applicability of the acquiescence doctrine in this case.

¶49Although the doctrine of legislative acquiescence is not always the most compelling of statutory-construction tenets available to us in a given case, we invariably have recognized this fact and have been cautious in applying that doctrine, rarely if ever turning to it as a primary tool and, instead, almost always using it as a tool of last resort. In this role, it has on occasion been a valuable tool. Recasting it in the *82light in which it is cast by the main opinion is, in my opinion, at odds with an established use of this doctrine in our jurisprudence as a tool to measure the accuracy of some prior decision regarding legislative intent and will have unknowable consequences in future cases.

¶50As significant as I believe are our decisions today regarding the Bayliss doctrine and the acquiescence doctrine, there are other aspects and/or consequences of today’s decision that I find problematic, some on an even more fundamental level than the foregoing. These other aspects and consequences of today’s decision include the following:

¶51(1) Ex parte Brewington, 445 So.2d 294 (Ala.1983), is a case that for 30 years has stood for the proposition that a court may require divorcing parents to continue to provide support for a disabled child of their marriage, even after the child has reached the age of majority. Both Brew-ington and this case turn on the meaning of the same phrase — “children of the marriage” — in the same statute— § 30-3-1. Consistent with the concerns expressed by Justice Shaw, I see no principled way of defining that phrase differently in cases involving postminority educational support and cases involving disabled children. See 145 So.3d at 86 n. 21 and accompanying text (Shaw, J., dissenting).

¶52(2) The main opinion states that “[t]he ‘plain and ordinary meaning' of statutory language may often be found in a dictionary.” 145 So.3d at 64 (emphasis added). I certainly agree with this statement. Similarly, I agree with the suggestion that a dictionary definition can be used “to shed light on the meaning” of a term used in a statute. Id. (citing Smith v. Smith, 433 Mich. 606, 612, 447 N.W.2d 715, 716 (1989)). I see no need, however, to embrace the seemingly absolute statement quoted by the main opinion from one treatise, i.e., that “ ‘[w]hen the legislature has chosen not to define a word, the “plain and ordinary meaning” can be ascertained from a dictionary.’ ” 145 So.3d at 64 (quoting 3A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 69:9 (7th ed. 2007)).

¶53(3)The main opinion states that, “[a]s further confirmation that the phrase ‘children of the marriage’ refers to minors, we may look to the definition of ‘child’ under the common law as applied in divorce proceedings.” 145 So.3d at 65. Again, I agree with the stated principle of statutory construction (although of course not with the ultimate conclusion drawn from it). Again, however, the main opinion appears to go further. It appears to suggest a more unequivocal rule of primacy in statutory construction that looks to the common-law meanings of words. It cites with approval the following statement from Standard Oil Co. v. City of Birmingham, 202 Ala. 97, 98, 79 So. 489, 490 (1918): “[C]ommon-law words [are to be construed] according to their common-law meaning.” Among other things, the main opinion also quotes with approval the following principle: “ ‘[Wjords undefined in a statute are to be interpreted and applied according to their common-law meanings.’ ” 145 So.3d at 65 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 320 (2012) (emphasis added)).14

¶54I do not know exactly what the term “common-law words” means; however, respectfully, I cannot reconcile the foregoing *83and similar statements with the fact that in the almost 240-year history of this country, and the almost 200-year history of this State, many words that have come to be used from time to time by our Congress and by our legislature have taken on some different meaning than the meaning they held in the common law. Moreover, I am concerned that the main opinion’s emphasis on resort to the common-law meaning of terms is in conflict with, and essentially “overwrites,” the myriad of tenets of statutory construction that have come to be employed by this Court (not unlike every other court in this nation). Resort to the common law has sometimes been helpful, especially when other more commonly employed tenets of statutory construction fail to offer a ready or persuasive answer, but it has never in my understanding been the first or exclusive rule of statutory construction.15 I do not think the emphasis upon it stated in the main opinion is well considered or advised; I do think it could have fundamental ramifications for the construction of statutes in the future.

¶55(4) The penultimate paragraph in Part V of the main opinion ends with this statement: “The mere passage of time, therefore, has not diminished the power of this Court to reconsider Bayliss.” 145 So.3d at 71. I agree with this statement, and nothing said above regarding the value of retaining the acquiescence doctrine as a tool to be used on rare occasions when it is appropriate to do so should be understood as saying otherwise.

¶56I do, however, have a grave concern over the discussion beginning with the second paragraph of Part V (and parts of Part III) that precedes this statement and that indicates that adherence to the interpretation of § 30-3-1 in Bayliss would require acceptance of changes or additions made to the statute by the judicial branch in a manner that violates the separation-of-powers provisions of the Alabama Constitution that are cited in Part V. 145 So.3d at 75.

¶57Whether one considers Bayliss to have been rightly decided or wrongly decided, it was an examination of the meaning of statutory language and an exercise of the judicial function. From this case forward, I fear any decision by a court interpreting an enactment of our legislature that is overruled years later by a subsequent court will now be vulnerable to criticism as a decision by which the original court violated the separation-of-powers doctrine embodied in the Alabama Constitution. Moreover, because a violation of the separation-of-powers doctrine implicates the subject-matter jurisdiction of our courts, that which heretofore has been considered mere judicial error, to be corrected by some subsequent overruling, now is susceptible not only to being viewed as a constitutional violation, but also to being reviewed as part of a void judgment. My concerns therefore extend to the impact of today’s decision on the principle of finality of judgments.

¶61(dissenting).

¶62The issue in this case is whether Ala. Code 1975, § 30-3-1, properly provides the trial court with the power to order the parties to a divorce to pay the - college *84expenses of the children of their marriage, even if those children are no longer minors. I believe that the language of § 30-3-1 provides the trial court with such power; therefore, I respectfully dissent.

¶63The petitioner, Carolyn Sue Christopher (“the mother”), and Charles Phillip Christopher (“the father”) were divorced in 2010. The father subsequently requested the trial court to order the mother to pay a portion of the college expenses of their child, C.C., who was reaching the age of 19 and enrolling in college.16 The trial court ordered the mother to pay a portion of the expenses; on certiorari review, this Court addresses whether § 30-3-1 gives the trial court the power to do so.

¶64I.

¶65In determining the meaning of legislation, our inquiry first begins with its language, and, if the meaning of the language is plain, our analysis ends there. Ex parte McCormick, 932 So.2d 124, 132 (Ala.2005). “[W]e must look first to the plain meaning of the words the legislature used.” DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 277 (Ala.1998). This Court in DeKalb County LP Gas explained:

“In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:

“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ”

¶66729 So.2d at 275-76 (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), additional citations omitted). See also Ex parte Ankrom, 143 So.3d 58, 71 (Ala.2013) (applying the plain-meaning rule discussed in DeKalb County LP Gas to define the phrase “a child” found in Ala.Code 1975, § 26-15-3.2).

¶67Section § 30-3-1 states, in pertinent part: “Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper....” It is undisputed that this Code section allows courts to order custody and payment for the education and support of the children of divorcing parents;17 the issue here, however, is whether such payment can be required when the “children of the marriage” are not minors.

¶68The operable portion of the Code section, I believe, is the phrase “the children of the marriage.” It does not refer to the custody or education of “a child” or of “minor children”; instead, the plain language “the children of the marriage” refers to the offspring of the divorcing par*85ents’ marriage. Both adult children of married parents and minor children of married parents are “the children of the marriage.” By the ordinary and plain usage of the phrase “children of the marriage,” C.C. is the mother’s and the father’s child and one of the “children of the marriage” even though he is not a minor. See Ex parte Brewington, 445 So.2d 294, 296 (Ala.1983) (noting that, although this Court had previously “held that the term ‘children’ as used in § 30-3-1” “applied] only to minor children,” “[t]he statute ... does not express such a limitation”).

¶69The phrase “children of the marriage” is sufficiently clear to apply to the facts of this case. I would not isolate the word “children” from the rest of the phrase— “of the marriage” — to draw a definition of that single word, because it is the phrase as a whole that is determinative of its meaning. The main opinion turns to dictionaries that define the word “child” (outside the context of the phrase “children of the marriage”) but actually does not primarily focus on the definitions of that word. Instead, it draws its holding that the word “child” “unambiguously means a ‘minor’ ” from the definition of “parent-child relationship” found in Black’s Law Dictionary. I see no need to turn to dictionaries, however: it is natural, plain, ordinary, and common for parents to refer to their adult sons or daughters as “the children of their marriage.” Even the main opinion, in its first paragraph, refers to C.C., who is an adult, as the mother’s “child,” and the mother also does so in her certiorari petition. Petition, at 5. But if we were to engage in an analysis of the various definitions found in dictionaries, I note that the word “child” does not exclusively refer to minors. Merriam-Webster’s Collegiate Dictionary includes in the definition of “child”: “a son or daughter of human parents ... [a] DESCENDANT.... ” Merriam-Webster’s Collegiate Dictionary 214 (11th ed. 2003) (capitalization in original).18Black’s Law Dictionary defines “child,” among other definitions, as “a son or daughter.” Black’s Law Dictionary 271 (9th ed. 2009). A previous edition of Black’s defined “child” primarily as “[p]rogeny; offspring of parentage.” Black’s Law Dictionary 239 (6th ed. 1990). These sources may define “child” as minors but also define “child” in a way not restricted to minors. Thus, the phrase “children of the marriage” does not refer to only “[minor] children of the marriage.” Here, the main opinion’s approach rewrites the Code section by inserting the word “minor” before the word “children” to alter the meaning of the entire phrase, despite quoting language stating that this Court may not “ ‘ “insert in a statute that which has been omitted.” ’ ” 145 So.3d at 66 (quoting Pace v. Armstrong World Indus., Inc., 578 So.2d 281, 284 (Ala.1991), quoting in turn 73 Am.Jur.2d Statutes § 203 (1974)). Using a dictionary, it would be just as appropriate to also insert “adult or minor”; I would insert nothing, as “children of the marriage” can refer to both adult and minor children of the marriage.19

¶70*86There is also no restriction on what type of “education” is contemplated by the Code section, whether it be primary or higher education, either of which may be applicable to both adult or minor “children of the marriage.” Because § 30-3-1 refers to the unspecified education of offspring of the divorced couple with no limitation on age, I do not believe the trial court here acted outside its powers under that Code section in ordering the mother to pay a portion of her 19-year-old son’s college tuition.20

¶71It might seem odd that the legislature enacted a statute with language allowing a trial court to order divorcing spouses to pay for the educational expenses of an adult child of their marriage. Nevertheless, we must enforce the legislature’s will as expressed in the plain language of the text it enacted, lest we violate the separation-of-powers doctrine:

“It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.”

¶72DeKalb County LP Gas, 729 So.2d at 276.21

¶73II.

¶74Because I believe that the language of § 30-3-1 provides the trial court with the power to order postminority educational support, I must address the remaining issue raised by the mother, specifically whether the Court of Civil Appeals’ decision conflicts with Ex parte E.R.G., 73 So.3d 634, 643 (Ala.2011), in which this Court, according to the mother, “recog*87nized the fundamental right of fit parents to control and direct the upbringing of their children.” Petition, at 5. The mother further argued that “she ha[d] a fundamental right to direct the education of her child,” Id.(emphasis added.)

¶75I believe that the Court of Civil Appeals thoroughly addressed that argument in its opinion. See Part II of Christopher v. Christopher, 145 So.3d 42, 49 (Ala.Civ.App. 2012). Although the Supreme Court precedent cited by the mother in her brief on appeal speaks to the constitutional protections regarding a parent’s fundamental right to direct the education of minor children, C.C. is not a minor. Further, this case does not involve a decision of a family or of parents in directing the education of their child; instead, it involves a dispute between the parents as to how to pay for the education the parties apparently had already agreed would occur: the evidence at trial indicated that “both parents anticipated and agreed, while they were married, that their children would attend college.” Christopher, 145 So.3d at 51 n. 1. The record indicates that, at trial, the nature of their dispute did not concern whether C.C. should attend college, but how his college-education expenses should be paid. As the Court of Civil Appeals noted:

“[WJhen divorced parents with equal fundamental parental rights become embroiled in a dispute as to the funding for that education, a court may resolve that issue without implicating the Fourteenth Amendment substantive due-process rights of either parent. If not, one parent could successfully override the fundamental rights of the other parent.”

¶76Id. at 51 (footnote and emphasis omitted).

¶77I have, in the past, expressed concern regarding the advisability of the government “operating in areas traditionally reserved to families or individuals.” Perdue v. Green, 127 So.3d 343, 407 (Ala.2012) (opinion on return to remand) (Shaw, J., concurring specially). But the issue here is not whether I agree with the law: “The judicial branch of state government does not have the authority to reject an act that is the duly enacted, constitutional exercise of the legislature’s inherent power.” Id.I see no argument before us indicating that § 30-3-1 is unconstitutional as applied in this case. Of course, in some other context not found here, it is possible for a court to apply § 30-3-1 erroneously or in a manner that is absurd or that might violate fundamental rights (all of which are subject to a reversal by an appellate court). Such abstract questions are not before us:

“Some of the arguments made ... are premised on hypothetical situations, different from the facts before us, in which the Code section might be either unconstitutional as applied or seemingly unwise in its application. It goes without saying that we cannot strike down the application of the Code section ... merely because the Code section might be unconstitutionally applied in some other context.”

¶78Ex parte Ankrom, 143 So.3d at 58 (Shaw, J., concurring in part and concurring in the result). Because the trial court’s actions were in accord with § 30-3-1, I respectfully dissent from reversing the judgment of the Court of Civil Appeals.