Pending Contempt Motions Make Custody Modifications Nonfinal
Judgments modifying child custody in two separate cases were not final where they did not dispose of pending motions to hold one parent in contempt. Appeals from the modification orders were dismissed for lack of jurisdiction. Butler v. Phillips, No. 2070488 (Ala. Civ. App. Aug. 29, 2008); Greenwood v. Greenwood, No. 2070452 (Ala. Civ. App. Aug. 29, 2008).
I - Butler
The parties in Butler exchanged a long volley of competing petitions to modify the child-custody and child-support provisions of their divorce judgment. On December 5, 2007, the trial court awarded custody of the parties’ children to the father, and ordered the mother to pay child support. The trial court denied the mother’s postjudgment motion to alter, amend or vacate this order, and the mother appealed.
The Court of Civil Appeals ruled that the December 5 order was not a final judgment. That order had not disposed of the mother’s earlier motion to hold the father in contempt for failing to pay child support. “[D]uring a postdivorce proceeding,” the Court of Civil Appeals explained,
[if] the trial court fails to rule on every pending contempt motion, its failure to do so . . . affect[s] the finality of the judgment . . . because, in such circumstances, the filing of each contempt motion does not initiate a separate and independent proceeding.
The trial court’s failure to dispose of the mother’s contempt motion thus rendered the December 5 modification order non-final. The Court of Civil Appeals accordingly dismissed the mother’s appeal.
II - Greenwood
Greenwood is almost identical. The custody-modification judgment appealed from in Greenwood left unresolved the father's motions for contempt --- though, here, the alleged contempt was for violating the divorce judgment's terms governing visitation. The Court of Civil Appeals found the modification order non-final, and dismissed the appeal for lack of jurisdiction.
