Rule 59.1 Bites Another Divorce Litigant

Rule 59.1 probably sounded like a good idea when the state’s appellate court advisory committee recommended it and the Supreme Court adopted it 30 years ago. And there’s no question that it’s been helpful for lessening the administrative burden on judges and clerks. That improvement has come at a high cost, however, in the form of surprised and disappointed litigants. Today’s case is another example of lawyers, the judge, and the legal system all having egg on their faces.

For the benefit of those new to Rule 59.1, it states (basically) that no post-judgment motion will remain pending for more than 90 days without (a) the express prior consent of all parties appearing of record or (b) the express extension of the deadline by the appellate court to which appeal of the judgment would lie. The reason 59.1 is so troublesome is that it becomes a trap for the unwary, and not just poor, pro se litigants but experienced judges and lawyers who should know better.

Here’s the text of Rule 59.1:

No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.

The parties in Colburn v. Colburn, Case No. 2070743 (Ala. Civ. App. January 30, 2009) made many trips to the courthouse, and the court issued many orders, so one can forgive everybody for getting a tad confused. The trial court issued an order on October 2, 2006, and the husband filed a motion to vacate that order on October 5, three days later. On January 3, 2007 (exactly 90 days after the husband had filed his motion to vacate), the wife filed a motion to hold the husband in contempt. The appeals court notes that she didn’t pay a filing fee when she filed that motion. The husband responded with a motion of his own (again, no filing fee) answering the wife’s motion and containing a “counterclaim” seeking to hold her in contempt. The trial court purported to enter a “final decree of divorce” on January 22, 2007, and then it conducted a hearing and issued yet another order on April 7, 2008. The wife appealed.

The wife argued that the trial court lost jurisdiction when the husband’s motion to vacate was denied by operation of law (Rule 59.1) on January 3, 2007. The appeals court agreed. “As previously indicated, in January 2007 each party filed a motion seeking to have the other held in contempt. However, because the parties filed their motions after the entry of a final judgment in the case, their motions constituted independent proceedings over which the trial court could gain jurisdiction only if the parties paid the filing fees required to commence such proceedings.”

Neither party paid a filing fee, so everything the court did after that point was void. “Because the trial court did not retain jurisdiction of this case after the father’s Rule 59 motion to vacate the October 2, 2006, final judgment was denied by operation of law, and because no postdivorce proceeding has been initiated by either of the parties vesting the trial court with jurisdiction to modify the custody arrangement set out in its October 2, 2006, judgment, the trial court did not have jurisdiction to enter the April 7, 2008, order. As a result, that order is void.”

So what’s the lesson in all this? If your lawyer (or your spouse’s lawyer) has filed a Rule 59 motion to alter, amend, or vacate an order from the trial court, mark your calendar for 60 days later. The lawyers should be on top of this and aware of Rule 59.1, but they may not be. If you’re getting past that 60 days and nothing seems to be happening, your case may be on its way to ending. If you’re satisfied with the last ruling from the court, great; do nothing. If you want it to change, best be agitating for action, because you’re in the danger zone.