Alabama Litigation Lawyer & Attorney : Lightfoot Franklin & White : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

The relevant part of this case centers on a 2001 judgment that modified the parties’ divorce arrangement. Neither party disputed the existence of the 2001 judgment, though they did disagree over its provisions. The 2001 judgment, however, was not included in the record on appeal.

Under the original divorce judgment, the husband was ordered to pay $600 per month in alimony. Three years later, in 2001, a new judgment changed that obligation. According to the husband, the 2001 judgment reduced his monthly obligation to $300. According to the wife, this reduction depended on her being able to obtain the husband’s Social Security benefits. She was unable to do this; and, she claimed, in that case the December 2001 judgment did not reduce the husband’s $600/month obligation. The husband had continued to pay alimony after December 2001, but at less than the original rate of $600 per month. The wife sued, claiming the husband was in arrears. The trial court agreed, finding that the husband owed the wife roughly $24,000 in past-due alimony — this being the amount calculated under the original rate of $600 per month.

The husband appealed. He argued that the trial court’s judgment “[did] not reflect the 2001 judgment modifying his . . . obligation to $300 per month.” The Court of Civil Appeals refused to reverse the trial court on this ground. The absence of the 2001 judgment from the record was fatal to the husband’s case. The court wrote:

[T]his court does not presume error. In order for this court to consider an error asserted on appeal, that error must be affirmatively demonstrated by the record. . . . However, the husband failed to include the 2001 judgment in the record on appeal. Therefore, the husband failed to meet his burden to ensure that the record on appeal demonstrates error.

(Quotation omitted.) 

The circuit court entered a judgment divorcing the parties and called its order “a final judgment for the purposes of appeal.” The judgment, however, did “not adjudicate the wife’s claim for alimony.” Nor did it divide the couple’s property. While the order stated that the marital property “should be” divided equally between the parties, it did not “actually divide” that property. Instead, the order “appointed a special master to submit a report listing the parties’ marital assets” and then hold a hearing “regarding the division of those assets.”

The appellate court dismissed the husband’s appeal. Because the trial court did not dispose of the alimony claim, and did not divide the couple’s property, its order “was not a final judgment.” (The appellate court explained that, while the trial court had also neglected to adjudicate the husband’s request for attorney fees, this alone would not have prevented the judgment from being final and appealable, had the alimony and property issues been decided.)