If It’s Not Final, You Can’t Appeal It

The Alabama Court of Civil Appeals has dismissed an appeal from a case in which the Barbour County Circuit Court denied a father’s request to change his visitation and ordered him to get a job. Why? Because the order being appealed wasn’t final. The case is Tracy v. Tracy, Case No. 2040823 (Ala. Civ. App. March 31, 2006).
The father requested a change after divorce to his visitation with his two minor children. After an ore tenus heanig, the trial court denied the father’s request. Then the trial court raised sua sponte (on its own initiative) the issue of whether the father’s child support should be adjusted. In connection with the issue, the trial court found that the father was underemployed and ordered him to find part-time employment of at least 20 hours per week. The trial court ordered him to file and serve an income affidavit after he obtained employment, but it did not determine the amount of child support. The father appealed.

The appeals court dismissed the father’s appeal on the grounds that the trial court’s ruling was nonfinal.

An appeal ordinarily lies only from a final judgment. Ala. Code 1975, §12-22-2. An order is generally not final unless it disposes of all claims or the rights and liabilities of all parties. See Eubanks v. McCollum, 828 So. 2d 935, 937 (Ala. Civ. App. 2002) (noting that an order that does not dispose of all claims is not a final judgment and that, in such an instance, an appeal may be had only upon an express determination that there is no just reason for delay and upon an express direction for the entry of a judgment under Rule 54(b), Ala. R. Civ. P.) . . . In this case, although the trial court, sua sponte, raised the issue of child support and found that the father was underemployed, the trial court failed to impute income to the father and calculate child support pursuant to Rule 32(B)(5). Because the issue of child support has not been fully adjudicated by the trial court, the father has attempted to appeal from a nonfinal order. Thus, we dismiss the father’s appeal. See §12-22-2, Ala. Code 1975.

2 comments

  1. I’m writing a story (kind of a humorous one) about a divorce lawyer, and I was wondering if you had some ridiculous and over the top stories about things you had seen while doing family law. Obviously, you would want to leave out the names, but I think it would make a very interesting post.

  2. in a custody battle over her son during a divorce A group of lawyers and advocates is raising funds for the FreeState Law services programs in the entire country,”

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