Appellate Jurisdiction and Postjudgment Motions

What happens to a case when one party has already filed a notice of appeal and the other files a postjudgment motion in trial court? The Alabama Court of Civil Appeals faced this question in Parker v. Parker, Case No. 2040696 (Ala. Civ. App. June 23, 2006). Short answer: the appeal is held in abeyance pending the resolution of the postjudgment motion.

The tiral court entered a final judgemnt of divorce on April 19, 2005, dividing the marital property, awarding custody of the children to the husband, and granting visitation rights to the mother. The trial court “reserved” the issue of child support “due to [the wife’s] apparent lack of income.”

The wife filed a notice of appeal on April 22, 2005, three days after the final judgment. The husband filed a postjudgment motion to alter or amend the judgment on May 19, 2005 (30 days after the final judgment). The trial court denied the husband’s motion 62 days later, on July 20, 2005. The husband then cross-appealed 14 days later, on August 3, 2005.

The first question the appeals faced was whether the husband’s cross-appeal was timely filed. The wife did not argue but could have argued that the husband waited too long after the wife’s notice of appeal to file it (103 days). Even though the wife did not raise it, the appeals court did ex mero motu (on its own initiative). The appeals court said the husband’s cross-appeal was timely filed. It reasooed that when the husband filed his (timely) postjudgment motion after the wife had filed her notice of appeal, the appeal was “held in abeyance” pending the resolution of the postjudgment motion.

The other jurisdictional question the appeals court faced was whether the trial court’s final judgment was in fact final. The appeals court has ruled in other cases like Tomlinson v. Tomlinson, 816 So. 2d 57 (Ala. Civ. App. 2001) that when a trial court reserves child support for the parties to file necessary child support forms, the judgment is nonfinal and therefore not yet ripe for appeal.

The appeals court distinguished this case, however, because the trial court in this case did not reserve child support to be resolved after some specific event, like the submission of child support forms. “In this case, the purported ‘reservation’ of the issue of child support does not change the fact that the trial court’s judgment does not award child support; therefore, it is as final as any child-support judgment can be.”

As it relates to the substantive issues, the appeals court affirmed the trial court’s award of child custody to the husband. It noted that the trial court heard evidence that the wife was less mature than the husband, prone to angry confrontations that alienated the children’s school principal and teachers as well as the children’s neighbors, and that the husband was a good and loving father who cared for the children appropriately. Noting that the ore tenus rule constrains its review, the appeals court said “we cannot say that the trial court in this case was plainly and palpably wrong in awarding of custody to the father.”

The husband’s cross-appeal dealt with the trial court’s reservation of child support. Specifically, the husband argued that the trial court erred in not following the child support guidelines. The appeals court agreed and reversed the case on the issue of child support.

The appeals court said that if it construed the phrase “apparent lack of income” to mean the wife was unemployed and thus unable to pay child support, it could affirm the trial court. The appeals court noted, however, that the wife’s own CS-41 form indicated an income of $975 per month and that she had never argued that she had no income.

The appeals court said that the trial court did not make any “written finding on the record indicating that the application of the guidelines would be unjust or inappropriate” as required by Rule 32.

As in [Robinson v. Robinson, 795 So. 2d 729, 734 (Ala. Civ. App. 2001)(quoting State ex rel. Waites v. Isbell, 718 So. 2d 85, 86 (Ala. Civ. App. 1998))], we are unable to determine how the trial court made its calculations, or lack of calculations in this case, concerning the mother’s child-support obligations; therefore, we are compelled to reverse the trial court’s judgment as to this issue and to remand this case. 795 So. 2d at 733. In short, the trial court’s judgment denying any child support to the father because of the mother’s “apparent lack of income” does [*24] not comply with Rule 32, Ala. R. Jud. Admin.

The appeals court remanded the case to the trial court with instructions that the trial court determine whether to make an express factual finding in compliance with Rule 32 concerning the wife’s income or simply to apply the child support guidelines.

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