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

The parties were divorced in 1999. The divorce judgment awarded the wife a share in the husband’s retirement benefits. Six years later, the wife moved the circuit court to enter a Qualified Domestic Relations Order (QDRO) regarding the retirement benefits. (The Court of Civil Appeals termed this order “QDRO-2,” as it was the second such order entered with respect to the parties’ divorce.) The circuit court entered QDRO-2 and with it modified the award of retirement benefits. The wife did not pay a filing fee for the proceedings that resulted in QDRO-2 and “apparently” did not notify the husband that she had sought the order.

More than two years later, the wife filed a motion to amend QDRO-2. The trial court “set aside” QDRO-2 and entered QDRO-3, which again modified the retirement-benefits award. The wife did not pay a filing fee for the motion that yielded QDRO-3.

The husband moved the circuit court to set aside QDRO-3, arguing that (among other things) the circuit court lacked jurisdiction to enter it, or to enter the earlier QDRO-2. The circuit court denied this motion and the husband appealed.

The Court of Civil Appeals first held “that a trial court has the inherent power to issue a QDRO subsequent to the entry of a divorce judgment in an effort to implement or enforce the judgment or to render the judgment effective.”

Nevertheless, the wife’s motions were “independent proceedings” to enforce the original divorce judgment. Consequently, the wife should have paid filing fees in connection with her motions to obtain and later modify the QDROs. She also had to provide the husband with proper notice of the proceedings. Because the wife did not pay the necessary filing fee, the circuit court never obtained jurisdiction over her “motions.” The orders entering QDRO-2 and QDRO-3 were therefore void. Void judgments do not support appeals. The appellate court dismissed the husband’s appeal and instructed the circuit court to vacate its relevant orders.

A father filed a postjudgment motion challenging an award of child support. Five days later, the trial court entered an order that “granted [the motion] in part.” In fact, this order only set the motion for a hearing. That hearing was held, but the trial court still “did not expressly rule on” the motion. Ninety days after its filing, the motion was thus denied by operation of law under Rule 59.1. The next day, the trial court entered an order purporting to deny the father’s postjudgment motion.

Forty-two days after that last order the father filed an appeal. This, of course, was 43 days after the motion had been automatically denied.

The Court of Civil Appeals dismissed the appeal as late, raising on its own motion the issue of timeliness. The court also “noted” that the trial court’s earlier order —which had nominally “granted” the father’s postjudgment motion “in part,” but had only set it for a hearing — “was not a ruling on the merits.” It therefore was not a “ruling” within the meaning of Rule 59.1.

A husband and wife appealed from the trial court’s divorce judgment.  Among the assets the couple had contested were the husband’s military retirement benefits.  The judgment did not fully adjudicate this matter.  While it granted the wife half of the husband’s accumulated benefits, it did not declare how much of those benefits were vested, nor calculate the exact sum the wife was to receive.  Instead, the judgment provided:

The governmental department and/or agency of the United States which is appropriate to do so shall make the necessary calculations as to what specific amount, if any, is to be payable to the Wife pursuant to this award.

 The Court of Civil Appeals called this judgment non-final.  A final judgment is one that “leaves nothing for further adjudication.”  By delegating the award of retirement benefits, the trial court had failed to resolve all the issues before it.  Though the parties had not raised this problem, the lack of finality deprived the appellate court of jurisdiction.  The Court of Civil Appeals raised the issue on its own motion and dismissed the appeals.

The husband moved under Rule 59(e) to alter, amend or vacate a divorce judgment. Ninety days later, under Rule 59.1, this motion was denied by operation of law . Ten days after this denial, the trial court entered an order purporting to rule on the husband’s 59(e) motion. The wife moved to “strike” this order. The trial court refused, and the wife petitioned the Court of Civil Appeals for a writ of mandamus.

The appellate court first decided to treat the mandamus petition as an appeal. The wife’s motion, the court reasoned, was essentially one under Rule 60(b)(4), because it claimed that the trial court lacked jurisdiction to enter the challenged order. The denial of a 60(b)(4) motion is reviewable by appeal. The appellate court invoked its power to treat the mandamus petition as an appeal. Quoting the Supreme Court of Alabama, the Court of Civil Appeals explained: “[T]here is no bright-line test for determining when this Court will treat a particular filing as a mandamus petition and when it will treat it as a notice of appeal.” The court “elected” to treat the wife’s filing as an appeal.

Then, on the merits, the appellate court held that the trial court had indeed lacked jurisdiction to enter its late order. Because the trial court did not rule upon the husband’s post-judgment motion within 90 days of its filing, the motion was denied by operation of law under Rule 59.1, and the trial court “lost jurisdiction” to rule upon the motion.

The husband attempted to save the late order by arguing that it merely “corrected” the divorce judgment under Rule 60(a). (Such corrections may be made “at any time,” so that the trial court’s order would not be void because late.) The Court of Civil Appeals rejected this contention. Rule 60(a) orders are meant to correct “errors of a ministerial nature in order to reflect what was actually intended at the time of the entry of the order.” Rule 60(a) orders “cannot be used to enlarge or modify a judgment” or to make it “say something other than what was originally said.” The trial court’s late order here attempted just that. It sought to modify substantive terms of the divorce judgment — although these terms been addressed and decided in that “final” judgment. (The terms in question related to the division of equity in the parties’ marital home.)

Consequently, the trial court’s late order was not entered pursuant to Rule 60(a).  It was an attempt to change that judgment in response to the husband’s post-judgment motion to alter, amend, or vacate. Because the trial court had already “lost jurisdiction” to rule on that motion, the challenged order was void. The wife should have been granted relief from that order under Rule 60(b)(4). The case was reversed and remanded.

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.

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.)