It may not show up in the Alabama Rules of Civil Procedure, but the Alabama Court of Civil Appeals has created rules about it – the so-called “Motion for Clarification.” You can read the court’s opinion in Moss v. Mosley, Case No. 2040992 (Ala Civ. App. May 26, 2006).
The facts of the case concern the trial court’s attempt to divide marital property in a divorce, including real estate owned by the family business. Specifically, the family business (controlled by the husband) was allowed to intervene as a party. 121 days after the trial court’s final ruling, the corporation filed a “Motion for Clarification” opposing the conveyance of a portion of its property to the wife.
The trial court later grianted the corporation’s motion and amended the property division aspects of the divorce decree so as to exclude the conveyance of the corporation’s property to the wife. The appeals court doesn’t say so, but it must have been the wife who appealed.
The appeals court said that the corporation’s motion may have been styled as a “Motion for Clarification” but that in reality it was much more, because it sought to change the property division described in the divorce decree.
A “motion for clarification” is just what the name implies: a request for an explanation from the trial court as to the meaning of a prior, allegedly unclear, order. A “motion for clarification” does not seek to persuade the trial court that a prior judgment should be changed, modified, or invalidated. If it does seek to do any of those things, then it is not a “motion to clarify” a judgment, but a motion to alter, amend, or vacate a judgment, one that, pursuant to Rule 59(e), Ala. R. Civ. P., must be filed not later than 30 days after entry of the judgment. If a trial court’s response to a “motion for clarification” is to explain, rather than to alter, amend, or vacate a prior order, then that response is a strong indicator that the motion was, in fact, one seeking clarification. See Gold Kist, Inc. v. Crouch, 671 So. 2d 695, 696 (Ala. Civ. App. 1995)(noting that “the original order was not modified by [the request for clarification]; the court simply clarified what we conclude was an abundantly clear order”). The converse is also true. If the trial court’s response to a motion for clarification does “more than merely clarify the trial court’s previous order,” by making, for example, “modifications that [are] more substantial in nature than the correction of a mere mechanical mistake,” then such corrections must be made pursuant to either Rule 59(e) or Rule 60(b), Ala. R. Civ. P. Pate v. Pate, 849 So. 2d 972, 976 (Ala. Civ. App. 2002).
The appeals court said that by the time the Motion for Clarification was filed, the trial court had no jurisdiction to amend the property division aspects of the divorce decree. Therefore, it said, the trial court’s order was void. The appeals court dismissed the appeal because it was from a void order.
I have a question. My mother was entered into a pre-nuptial agreement in which her husbands attorney hired a lawyer to represent my
mother. Every lawyer I have spoken with n Birmingham has told me that no attorney would hire an attorney for the wife in a pre-nup.
The lawyer that represented my mother was called to testify and clearly stated on the stand that the attorney representing the husband called him
and requested that he come and represent my mother. Have you ever even heard of a lawyer doing anything of that nature.
Todd
Seems unusual, but I’m not sure it makes the prenup vulnerable.
Rule 4.2 Rules of Professional Conduct states that when dealing with unrepresented persons, a lawyer
is not to offer any advice other than the advice to obtain counsel.
Independent representation is a must for a contract to be valid in the state of Alabama. How can this be
independent representation when my mother’s husband and his attorney hired and payed her attorney? He took the stand
and admitted that he had never met my mother and that he did no discover and did nothing to verify that
the information given to him by opposing counsel was even correct. This was a sham transaction.
I am the custodial parent of 1 child who is entering his junior year in high school. His mother and I agreed in 1997 that she would save his child support for his college education. While this is agreed to I want to ensure that it is defined that this money is used first and also address how any remaining balance gets distributed. Is it appropriate to file a motion to clarify? I am filing myself and want to be accurate.
You can file anything you want, but I would be surprised to see a judge respond favorably to it. Child support is there to pay the cost of raising children, and no judge I know would hold a parent responsible for depriving her child of sustenance so there’s money available for college later on.
Can you tell me what format a motion for clarification should be in, and what information to include? Is there somewhere on the web to find an example?
How do i file a motion to amend a divorce decree without an attorney? In my divorce which was 9 years ago my ex was able to claim my son every other year on his taxes, now for the last 2 years he has been on disability , he will always be on it and does not have to claim it on taxes. He only sees our son maybe 1 week out of the whole year. I want him not to be able to claim him at all . I have no money to pay an attorney but i really need to get this done. If u can help answer my question i would be so thankful.
My wife was awarded the home in our divorce 10 years ago. Needless to say, in the last 5 there have been 13 Demand letters from the bank & 41, 30 day lates & 13 60 day lates that are having an effect on me financially, such as being declined for a refinance on MY home & adverse effects at work due to the negative credit rating (Caused ONLY by this) & a Gov. security clearance, based in part on financial reporting to Trans/Eqifax, etc. My monetary loss is now around 300,000.00 due to this. according to your post above;
“but a motion to alter, amend, or vacate a judgment, one that, pursuant to Rule 59(e), Ala. R. Civ. P., must be filed not later than 30 days after entry of the judgment. If a trial court’s response to a “motion for clarification” is to explain, rather than to alter, amend, or vacate a prior order”
Am I to assume I have no recourse in the courts to force her to refinance in her name or sell to remove mine due to the timeframe? If so, what other options do I have?
Thanks!
I would like to know if there is a website that lists common motions during a divorce that can be done to move things a long and collect evidence and alter divorce decrees once a final judgement has been entered. For example. Wife remained purposefully unemployed so that a judge would impute minimum wage income in her child support but as soon as divorce was done she began to work earning high above minimum wage. How can I have the order for child support ammended?
Thanks,
Rob
I’ve had a heart attack and want to relocate with my child to FL. I have primary residential custody. I want to live closer to my mom because I have no support system in place should something happen to me. My wife is not a reliable parent due to substance abuse. Are there any other conditions that would allow me to take my kid with me and move out of state? If so what can I file and what do I need to do?
Thanks,
Rob
If nothing has already been filed, you’re not yet covered by the relocation act.
If the court already has a case ongoing on your marriage, you’ll need to comply with the act. You can read all about how to do that on Divorceinfo.com.
My mom had her final court date 3 months and she was rewarded all of the property because he failed to show up the last 2 times, but now, he has filed a motion and is claiming he never new about the new court date. What should she expect?
Shai
In Alabama, the appellate courts are notorious for reversing any attempt by trial courts to enforce a default judgment over the objection (no matter how tardy) of the defendant. Consequently, if I were a judge I would allow the husband to come in even now and would grant him the opportunity to hire counsel and defend his interests. Your Mom’s judge may see it differently, but that’s what I would do.
I have a question pertaining to a Motion to alter, amend or vacate in a domestic relations case. My ex-husband and I went to court on his motion to modify (child support reduction) in June. The judge ruled and the order is dated June 12, 2009. His attorney filed a Motion to alter, amend or vacate on September 15, 2009 and is disputing the ruling and also not trying to modify alimony which wasn’t even part of his original motion to modify or the previous hearing. This motion to alter, amend of vacate was filed 96 days after the judge’s order. Wouldn’t this be considered an untimely filing? The judge has set the motion for a hearing in October by the way. thank you for your time in answering my question.
Sounds untimely to me. Talk to your lawyer about filing to dismiss the motion as untimely.
My attorney failed to include “court fees have been waived” into the decree. Can I admend the decree without her involvement as she will not return any of my phone calls?
This response assumes you still have time to make the change. If you don’t, you may need to hire another lawyer or just file something before the deadline.
Stop calling your lawyer. From here on out, communicate in writing (makes it much harder to deny you did it). Send your attorney a letter and state in a matter-of-fact way (without making accusations) the EXACT dates and times of the calls you have made and the messages you have left, and state that you need this action taken. State that you would prefer to have your attorney complete the handling of the case but will approach the court directly if you are not able to receive a timely response from your attorney. Then, if the attorney does not respond, send the judge a letter and ask for the relief you think you need.
I agreed to pay half the monthly mortgage on our family home that my ex has possessiion of while it is listed on the market. I am financially burdened now with half his mortgage and 100% of the mortgage for the kids and I. I have been paying half his mortgage for 13 months now. The order does not allow for an option to auction the house until next Summer. Can I file a Motion to get out of this due to financial hardship? I have offered him five time to refiance it and take all my equity (which is $40K) just to get out of making the payments each month. I don’t see how I can keep this up much longer and I’m trying not to hurt my credit. Any advice?
Sure you can. If I had to guess, it will come down to whether the judge thinks your Ex is seriously trying to sell the house, or just content to have you paying half his rent. For example, are you reducing the price of the house? Bugging your agent? Changing your agent? Improving the house to help it sell?
I am pro-se and have made 3 attempts to have a support modification down for one child I am required to pay over $700 a month. The last time I attempted to modify #3 I was taken to court by my X-wifes attorney, ( here sister in-law) for contempt and to pay attorneys fees for wasting her time on three attempts. My income dropped over 40% in CT the rule is 15% as justification to modify. I have showed proof from tax returns, and delinquency, from IRS, Cell phone and car payments.
I have just received a notice from the court that I
have been ordered to pay an additional $600 in Attorney fees as a
result of my not being able to show up on time last Monday, that is on top of the
$2300 I had to pay prior. ( for the contempt and attorneys fees}.
I borrowed this money from My family to pay this, to stay out of jail.
I had informed the court, although another Judge ( 2nd attempt to Modify) that this attorney
was her sister in law and that I requested proof that my x-wife has in
fact paid for these services.
Is there any motion I could file to delay any further payment until this woman provides proof of payment for the past three years from my X wife?
Is there some ethical issue here?.
This attorney has refused to provide any proof of any payments to her
by my X-wife. Could you enlighten me of any rights I may have from
this abuse. Here I am struggling, borrowing money to meet my support and cost of living needs and this court does this!
I am beside myself with this sickening
actions of this court! FYI this in Connecticut court system.
Please advise When you have a moment.
So now you’ve managed not only to get Mom angry with you but to get the judge angry with you as well. If you’re pro se, do not, DO NOT, fail to show up in court. Judges don’t like it. I know I wouldn’t if I were a judge.
You’re in no position to bargain now. My suggestion is to impress the judge with how promptly and humbly you thoroughly comply with the judge’s order. If you want to challenge the judge’s ruling, do so, but you better begin by complying with it.
And my guess is that you will get absolutely nowhere trying to challenge the assertions of Mom and her attorney (an officer of the court) that Mom has in fact paid her sister-in-law in money for legal services. If the judge thinks the fee is reasonable, which is apparently the case, it almost doesn’t matter. Either the judge wants to take care of Mom or to take care of the attorney. Accept it and move on.
my ex-boyfriend and i were never married but have a two year-old son. my son was born in a different state from the ex. when my son was six months old, we moved back to the state where my ex lives and moved in with the ex. we lived with the ex for 7 months in 2009. in august of 2009, my son and i moved out and moved out of state. the ex has not made any contact with my son since. neither my ex or myself used a lawyer–simply because i couldn’t afford one. the ex was granted paternity on december 7th of 2009. our court order for child support went through in january, 2010. the court order is unclear on who is to claim my son for 2009 taxes. after the court order was through i called the legal secretary for the case and asked her if i could claim my son, since i was not awarded back child support. she told me she would talk to the judge and call me back. she did so–and told me to go ahead. my ex beat me to the claim. i called the legal secretary back and she told me to file a motion of clarification. it appears that this is the correct form–due to the fact that no mention was made regarding 2009 taxes in the court order. so, it wouldn’t be an amendment–but truthfully a clarification. HOWEVER, if i do submit a motion of clarification, can i ask for changes to the tax claim status for subsequent years? there is an ERROR IN THE COURT ORDER!! it states that my ex can claim my son 3 out of 5 years (2010, 2011, 2012) and that i can claim him 2 out of five years (2011, 2012). that doesn’t make any sense!! if i ask to clarify that–can i ask to claim my son for all years–considering my ex has no visitation whatsoever? (granted–the custody has never been established. but, he lives out of state–and at this point–i’m not concerned. he doesn’t want to be a father.) since the court order is unclear–can i ask for clarification in my favor–or would that overstep the bounds of the motion? any help would be appreciated. i feel so overwhelmed…
This doesn’t sound like you’re asking for clarification; you’re asking for a change. In my state, that would mean you file a petition to modify the decree, not a motion for clarification.
And on the substantive question, the child support guidelines in most states assume that the custodial parent is using the exemption for the child(ren) for all years, so yes, it does seem that a change to the order would be appropriate.
Lee: A question regarding the 30 days to file a Motion to Alter/Amend/Vacate with a tie-in to the Motion for Clarification. Some background for you first:
My wife’s ex-husband has Christmas visitation with their children from DEC 25th thru JAN 2nd. My step daughter’s birthday is on Dec 27th. Two years ago, my wife hired a lawyer and petitioned for a Motion to Modify requesting time with the daughter on her birthday. The ex objected to this because he did not want to have any possible plans for holiday travel/vacations impeded. The judge granted the modification and ordered that on even years, if the father is in town, the mother shall have 3 hours with the child, from 3pm-6pm. On odd numbered years, the mother shall have the same three hours on the child’s birthday. Due to the way the judge’s order was worded, it could’ve been interpreted that even or odd years, the mother only got time with the child, IF, the father was in town. So, this past December, when the ex informed he was planning to be out of town, my wife petitioned the court Pro Se, for a Motion for Clarification on the judge’s previous order. Due to the limits on time because of the appraoching holidays, my wife had to walk the motion to the Judge’s court at which time she issued an Ex-Parte ruling, clarifying her previous order on birthday visitation. She set a April court date to consider “all other matters” since my wife had asked to be awarded/reimbursed court costs that were paid for the Motion to Clarify. So, after the ex was served with the Ex Parte ruling, my wife got the time with her daughter on her birthday (hoo-ray for victory).
While awaiting the April court date, she filed another Pro Se motion, a Motion to Modify, to have child support re-calculated at trial, since due to the economy, her pay had dropped >10%. The next thing we know, we get answers to her motions from her ex’s attorney, along with their Motion to Modify seeking a change in custody of the children, a Request for Production, and a set of Interrogatories. Well, we knew that a custody fight was nothing my wife was prepared to handle Pro Se, so she went and hired an attorney. A few days after hiring the attorney and paying $1k up front, we learn that the only thing that their attorney actually filed with the court was the answer to our motions, the RFP, and Interrogatories; no MTM filed seeking a change in custody. So, on our next filing through my wife’s atty, we added attorney fees to what we were seeking, because, had we not received a MTM for custody (which was never filed with the court), my wife was prepared to represent herself.
Well on the day of court, they agreed outside the coutroom to the re-wording of the birthday visitation and the new amount for child support in accordance with Rule 32. He did not agree to paying court costs or attorney fees, so that request was submitted for the judge to decide, at which time they asked for attorney fees also. Well the judge didn’t award either party attorney fees nor court costs. In the order, there was a miscalculation, in my wife’s favor, made on the retroactive child support amount ordered. She discussed with her attorney about filing a Motion to A.A.V. to re-request the Court costs and attorney fees, since the judge did not hear any arguments, and the agreement was dictated to the Court Clerk. The attorney advised to wait and see if the ex’s attorney filed one since the error was in her favor. Well, we anticipated that they would, since the error was in the ballpark of $1800. But here’s where the question comes into play. They filed the MtAAV on the last day; 30 days after the judge’s ruling. Our attorney says that since we did not file our own MtAAV, seeking reconsideration of the court costs and attorney fees, we cannot ask for them now. I thought that by the ex-husband filing a MtAAV, that extended the timeline, and allowed us to file an answer to their MtAAV and also file one of our own. So, is he shooting straight with us?? Are we “Out-of-Luck” on seeking reimbursement on these items?? Or, is there some other way we could go about asking the judge to re-consider? Please advise. (Sorry for the lenghty post…just a lot to cover here)
See if you can’t post something shorter, and I’ll do my best to provide a helpful response.
Lee,
My mom really needs your help. She needs to ask you some questions involving her situation that you helped her with back in 1998. If you can possibly give her a call or email me to let me know how she can call you, I would be so grateful. We didn’t realize you had moved!
Thank you so much!
Sorry. Didn’t mean to sneak away on you! I now live on our farm and operate a virtual office. The best way to reach me is by e-mail, https://divorceinfo.com/e-mailinfo.htm
Lee,
I have just recently gone to court over my 7 month old son with the baby’s daddy. The magistrate ordered every other weekend on 7 hours on Wednesdays as permanent visitation once he realized my son was beyond the age of tenderness (6 months). However, before this was realized he was considering the Wednesday overnight stays for a four week temporary basis as an effort to ease my son into the overnight stay process. Once everything was (what we thought) agreed to the magistrate asked which lawyer wanted to draft the order based on what was said and the baby’s daddy’s attorney said she would since they originally submitted the petition. The problem is that when she emailed it to us for review it was nothing like what the judge ordered. They put on there that Wednesday overnight stays were to begin after a 4 week period of 12-7 visits. I have ordered the audio tape of the hearing in an effort to prove the ruling but what happens if the baby’s daddy’s attorney still thinks that what they have interpreted is reality even though it is not. Should I file a motion for clarification if this becomes the case (once we receive the audio tape and review it). Please Advise. P.s- These proceeding took place in TN.
I have a question.. Can you please tell me what Alter, Ammend and vacate means in the request to the court of law..My X requested Alter, Ammend and vacate .. after losing her case to get alimoney, and be order to pay attorney fees and back child support…
It’s a motion asking the judge to look at the case again before it goes to appeal.
Mr. Borden, I have a question on this motion of clarification I need to refile. Ok here is the details, I got an order from a FL (esc.county) judge who awarded me Sole PR of my daughter however the judge didnt reflect that on the parenting plan for my ex and I, So I filed a motion of Clarification however it got denied due to the fact my lawyer was still on the court doc. So Got my lawyer to do a stipulated motion to withdraw. I signed it now waiting on the exs lawyer to do the same. Now after it gets signed by the judge I want to refile my motion of clarification. but without a hearing. I dont think its needed. do I file a exparte motion or just wavier of a hearing on motion of clarification? and Just need to get this right so I dont upset the judge!!! thanks a million
Sorry. Haven’t the foggiest. Perhaps a FL lawyer could help you.
I applied divorce but i don’t need to stay in same house i want to go separate apartment did my spouse will pay for my expenses the court will order to do . Because right now iam not have job .
I got my divorce June of 2013. It says I’m decreed life insurance policy in my wife’s name and any cash value, also it says any brokerage accounts,stocks, bonds, mutual funds, and securities registered in wife’s name, together with all dividends, splits, and other rights and privileges in connection with them. The problem is it says the same for my wife, the investment company says she told them that I am not to receive anything. They put an alert on the account until they get something from the court saying how much or if anything go’s to me. Do I file a petition for clarification order or dose the two year rual come into play? And do I need to get a attorney?
Haha I did a verbal agreement ( 2013) at time of divorce to pay 350$ a week which included all of her bills and all of my bills. I only made 400 a week at the time and just wanted to get out of divorce. left her the house and all I wanted was to visit my kids whenever I wanted. 3 years later and only making 200 a week now and judge held me in contempt for not paying full amount and moved payment to 600= a week. When will the courts stop being sexist and realize the fathers have lives too. My ex hasn’t had a job in 4 years and why would she when she gets all my money and state aid. I talked to lawyer and he said I need to get a second job to pay her. lmao nope I’m not gonna work a second job to pay her. Let this be a warning to all… DON’T AGREE TO ANY VERBAL AGREEMENTS. VERBAL AGREEMENTS MEAN JACK IN COURT.
I have an existing parental plan from my divorce back in 2013. It states my ex-husband and I share joint legal custody pertaining to religion. It also states the primary custodian has the final say in matters of disagreement. He is the primary custodian and is completely against me taking my children to my church during my visitation. He’s basically told me that I’m violating the parental plan by taking them with me to my church. Since this accusation, I have not taken the children with me, and I’ve also been missing out on my social and spiritual interactions that I need every week. I’m not trying to change their religion, I just want to be able to take them with me when I go. Is this really a violation?
I can’t anticipate how your judge would view this, and it probably depends on whether you’re taking them to a mainstream, widely accepted church or one that raises the judge’s eyebrows. But generally, my best guess would be no.
Most judges lean over backward to support the decisions visiting parents make, because they tend to want them to have full freedom to decide how to spend the time. If your visiting time falls on your day of worship, I think you should feel free to take the children with you as you go about your normal schedule.
Now that clause in your decree has significance. You would want to be cautious about encouraging or even allowing your children to make a commitment to your faith. If they express an interest in doing so, you’ll just need to decline politely and tell Dad about it. Tell them they can make their own decision when they’re adults, but for now, they need to defer to Daddy on that one.
I was divorced in 2003 and the mediation agreement states that I am entitled to a portion of my ex’s military retirement. I just discovered this entitlement in 2016. however, the language in the decree does not meet the standards of the military requirement for obtain the benefits. How do I request the judge to clarify and adjust the wording to meet the required language.
As the post says, the “Motion for Clarification” is a creature of court interpretation rather than one of the Rules of Civil Procedure. The best way to find out if your judge would be willing to do this is simply to ask in a Motion for Clarification. Your lawyer will be careful to point out (if such is the case) that the language of the court’s decree makes clear the court’s intention to divide the military retirement plan and that the only change needed is one of form to meet the requirements of the military authorities.