Trial Court’s Retention of Jurisdiction

Trial judges are usually anxious to get divorce cases off their dockets. Not so the judge in Dale County, and it made the court’s ruling impossible to appeal – at least for now. This is the case of Hubbard v. Hubbard, Case No. 2040481 (Ala Civ. App. January 27, 2006).

The trial court divorced the parties on October 26, 2004 but roserved the division of marital property. Two weeks later the trial court divided the marital property but “retained jurisdiction to modify the distribution of property and title to the double-wide mobile home and the 2 acres of land if ‘the husband converts his Chapter 13 Bankruptcy or does not complete his payment plan so that the wife became responsible for paying the debts of the parties,’ for which the husband was responsible.” The husband appealed.

The appeals court dismissed the appeal. Neither party raised a jurisdictional issue about the appeal, the appeals court raised the issue “ex mero motu” (on its own initiative).

The judgment in this case disposes of all of the marital property, but the trial court purports to retain jurisdiction to modify the property division upon the happening of certain contingencies. By retaining jurisdiction to modify the property division, the trial court necessarily did not effect a complete adjudication of all matters in controversy. To phrase the matter another way, there remains “‘something more for the court to do'” with respect to the disposition of the homeplace. Owens v. Owens, 739 So. 2d 511, 513 (Ala. Civ. App. 1999) (quoting Wesley v. Brandon, 419 So. 2d 257, 258 (Ala. Civ. App. 1982)). Accordingly, the judgment is not final and therefore is not appealable.

So what’s the husband to do? Presumably he is to return to the trial court and seek to have the trial court make its property division final. Only then may the husband file an appeal that would be considered on its merits.

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