A Case Not Yet Ripe for Appeal

With rare exception, parties may not appeal a divorce case until the trial court’s judgment is final. We have a recent illustration of that in Exum v Exum, Case No. 2150948 (Ala. Civ. App. March 10, 2017). The parties had been divorced since 2010. In 2015 the father asked the trial court to hold the mother in contempt; he later added a request that the court award him custody of the parties’ child.

The trial court declined to hold the mother in contempt but awarded the father “primary” physical custody of the child. In its order, the trial court instructed the parties to submit CS-41 forms and a suggested CS-42 form and said it would follow up after receiving those documents with “a separate child support order.” The father responded with forms, but it’s unclear from the record whether the mother did.

An attorney entered the case after the initial trial and filed a motion to set aside the custody modification order. When the trial court denied that motion, the mother filed a notice of appeal.

Neither party raised the issue of appellate jurisdiction, but the appeals court raised it ex mero motu (on its own). Citing a similar fact set and a similar ruling in Tomlinson v. Tomlinson, 816 So.2d 57 (Ala. Civ. App. 2001), the appeals court ruled that the mother was taking an appeal from a nonfinal judgment and that her appeal was therefore due to be dismissed.

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