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

The circuit court entered an order modifying the parties’ custody, visitation, and child support obligations on September 11. On September 16, the mother filed a notice of appeal from that judgment; and, on the same day, the father filed a postjudgment motion to clarify the order so that it reflected the governing analysis of Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). On September 30, the father moved to clarify the visitation provisions of the order. Then, on October 9, the circuit court made an entry in the case-action summary that purported to grant the father’s McLendon motion of September 16. On October 10, the mother filed an emergency motion alleging that the father had failed to comply with a provision in the order directing him to provide the minor child with treatment for dyslexia. The circuit court never ruled on that motion.

The Court of Civil Appeals raised the finality of the underlying judgment on its own motion. First, it observed that, under Rule 1(B) of the Alabama Rules of Juvenile Procedure, the father’s postjudgment motion of September 16 was denied by operation of law 14 days after it was filed but was not ruled upon. The mother’s notice of appeal, “which had been held in abeyance” while the father’s postjudgment motion was pending, “quickened” on September 30, when that motion was denied by law and the underlying judgment became final.

The various postjudgment filings did not disturb this finality, and thus did not prevent the Court of Civil Appeals from exercising jurisdiction. The father’s motion of September 30 to clarify visitation rights, to the extent that it could be considered a postjudgment motion, was untimely because it was not filed within 14 days of the modification order. The circuit court’s case-action entry of October 10, purporting to grant the father’s September 16 McLendon motion, which had already been denied by operation of law, was a “nullity.” Finally, the mother’s motion of October 10, alleging that the father had failed to provide dyslexia treatment for the child, was “akin to a contempt motion.” “The mother’s filing of that motion initiated a proceeding separate and independent from the action in which the custody-modification order had been entered and [did] not affect the finality of the custody-modification order.”

None of these acts in fact disturbed the finality of the September 11 order. The mother’s appeal from that order was from a “final” judgment and was timely. The Court of Civil Appeals had jurisdiction and proceeded to address the merits of the appeal.
 

The trial court modified the parties' divorce agreement to give the father sole physical custody of the parties' minor children. The mother appealed, arguing that the evidence did not support this change. The father replied that the mother had not preserved this issue for appeal. Pointing to New Properties, L.L.C. v. Stewart, 905 So. 2d 797 (Ala. 2004), the father argued that, because the mother had not challenged the sufficiency of the evidence in a post-judgment motion, she could not press the issue in the appellate court.

The Court of Civil Appeals disagreed. The decision in New Properties held that,

in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.

(Emphasis added.)  This rule did not apply here, the appellate court held, because the trial court had made factual findings on the custody issue. The lower court's various determinations — that there had been a "material change in circumstances" so that changing custody would do the children a "positive good" that would "more than offset" any "disruptive effect" the change might have — "encompasse[d] matters that require factual determinations rather than legal conclusions." These findings of fact meant the mother did not have to move post-judgment in order to preserve her sufficiency challenge. As New Properties also stated:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion for judgment or a motion for a new trial.

The mother's sufficiency challenge was thus properly before the Court of Civil Appeals, which went on to address the issue, ultimately affirming the trial court.

(The Court of Civil Appeals applied this same rule in another family-law case in Tyson v. Tyson, No. 2070557 (Ala. Civ. App. Apr. 24, 2009).)

The Court of Civil Appeals had earlier affirmed the denial of the father’s post-judgment motion under Rule 60(b) as untimely. See Hobbs v. Heisey, No. 2070085 (Ala. Civ. App. July 3, 2008). On application for rehearing, the father argued that, though “based on grounds more appropriately addressed under Rule 60(b)(1),” his motion was due to be granted for “exceptional circumstances” under Rule 60(b)(6). He contended “that he could not have filed a Rule 60(b)(1) motion in the trial court within the four-month deadline set out in Rule 60(b) because” the parties “had divested that court of jurisdiction by filing notices of appeal during that period.”

The appellate court rejected this argument. “Had the father filed a Rule 60(b)(1) motion before the appeals had been filed,” the court observed, “the trial court would have had jurisdiction to rule on that motion.” “Further, even after the notices of appeal had been filed, the father could have sought leave from this court to file a Rule 60(b)(1) motion.” The motion would have been deemed filed in the trial court on the day the motion for leave was filed with the appellate court. Therefore, there were no “exceptional circumstances that would justify treating his motion as a Rule 60(b)(6) motion.” The father’s application for rehearing was accordingly overruled.

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.