An Alabama Case Brimming with Procedure Issues

Every now and then the Alabama Court of Civil Appeals renders an opinion that you think might make a good bar exam question. Today’s case would be a good foundation for a question on civil procedure.

The case is Cooper v. Cooper, Case No. 2080210 (Ala. Civ. App. April 24, 2009). Mom filed a Petition for Rule Nisi (enforcement) and for modification. She asked the court to hold Dad in contempt for violating some provisions of the final judgment of divorce, to increase child support, and to award her an attorney fee. The trial court entered a handwritten order into the record on August 1, 2008: “Show Cause called. Parties present. [Dad] having filed Chapter 7 [bankruptcy] and was discharged. Court finds that [Dad] has taken inconsistent positions and is judicially estopped to have had the protection of Chapter 7 and to have collected benefit under the Final Decree. Court further finds that [Mom] lost $ 1100.00 due to tax capture to the benefit of the position of [Dad]. Therefore, [Dad] shall pay $ 1100.00 to [Mom] in 60 days.” Cooper at 1-2 (names changed).

The clerk promptly entered the order into¬† the Alabama State Judicial Information System, also on August 1, 2008. By doing so, the clerk avoided that dreaded disconnect between the judge’s signing of the order and the entry of the order, which Alabama lawyers know can be a trap for the unwary. According to Ala. R. Civ. P. 58(c), an order of a judge in Alabama is not effective when signed by the judge but only when entered in the State Judicial Information System.

But what about changing child support, you ask? Good catch. We’ll get to that in a moment.

Dad filed a “motion for reconsideration” on September 3, 2008, 32 days after the trial court’s order. On September 5, 2008, Mom filed a “motion for formal order” asking the trial court to provide her a typed version of its August 1, 2008 order for tax purposes. On October 3, 2008, Mom filed a “motion for contempt” alleging that Dad hadn’t paid her as the trial court had ordered him to do on August 1, 2008. Dad filed a notice of appeal to the Alabama Supreme Court on October 3, 2008, and the Supreme Court transferred the case on December 1, 2008 to the appeals court.

Mom asked the appeals court to dismiss Dad’s appeal on the grounds that it was untimely filed. The appeals court took a different tack. It ruled that, because the court’s August 1 order didn’t address Mom’s request for an increase in child support, the August 1 order was not final.

“[A] final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.'” Dees v. State, 563 So. 2d 1059, 1061 (Ala. Civ. App. 1990) (quoting Tidwell v. Tidwell, 496 So. 2d 91, 92 (Ala. Rul. Civ. App. 1986)). “The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So. 2d 1191, 1192 (Ala. Civ. App. 2006). Neither the August 1, 2008, order on the case-action-summary sheet nor the October 6, 2008, typewritten order adjudicated the former wife’s claim for a modification of child support. The trial court’s failure to dispose of the former wife’s claim for a modification of child support renders the trial court’s August 1, 2008, and October 6, 2008, orders nonfinal. Accordingly, we must dismiss the former husband’s appeal. Cooper at 3-4 (footnotes omitted).

In one of those footnotes I omitted, the appeals court stated (in dicta) that if the order had dealt with Mom’s request to increase child support, it would have been final and Dad’s motion for reconsideration would have been untimely filed. The appeals court said it construed Dad’s “motion for reconsideration” as one for a new trial pursuant to Ala. R. Civ. P. 59, which according to Rule 59(b) had to be filed within 30 days after entry of the judgment. The appeals court said Dad’s motion was untimely because it was one day late. At first I thought it was two days late, but then I realized that Monday, September 1 was Labor Day, so according to Ala. R. Civ. P. 6(a), the final date for filing a motion for new trial would be measured by counting the days beginning the day after the order, which would be Saturday, August 2, 2008 and ending on the 30th day, Sunday, August 31. But Rule 6(a) says because Sunday is a holiday, the deadline gets extended, and because Monday, September 1, was also a holiday (Labor Day), the deadline got extended again to Tuesday, September 2. So when Dad filed his motion on September 3, he was one day late.