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Terry v. Terry

Alabama Court of Civil Appeals

January 10, 2014

Joseph Shane Terry
v.
Michelle Terry a/k/a Michelle Vandergrift

Released for Publication March 5, 2015.

Appeal from Madison Circuit Court. (DR-11-381.02). Christian M. Comer, Trial Judge.

REVERSED AND REMANDED WITH INSTRUCTIONS.

For Appellant: Randall W. Nichols, Massey, Stotser & Nichols PC, Birmingham.

For Respondent: C. Wayne Morris, Huntsville.

THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

OPINION

THOMAS, Judge.

This is the second time these parties have been before this court. See Terry v. Terry (No. 2120113, August 30, 2013), So.3d (Ala.Civ.App. 2013) (table). The relevant facts relating to the previous appeal are as follows. On March 28, 2011, Michelle Terry, also known as Michelle Vandergrift, filed a complaint for a divorce in the Madison Circuit Court (" the trial

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court" ) in which she asserted that she and Joseph Shane Terry had entered into a marriage relationship by virtue of a common-law marriage; she also petitioned for custody of their minor child (" the child" ). The trial court entered a default divorce judgment (" the divorce judgment" ) on January 13, 2012, divorcing the parties and awarding Michelle, in pertinent part, sole physical custody of the child, $10,000 in monthly periodic alimony, and $1,520 in monthly child support. After the resolution of myriad postjudgment motions, Joseph appealed the divorce judgment to this court on October 30, 2012. We affirmed the divorce judgment in a no-opinion order of affirmance issued on August 30, 2013. Joseph filed a petition for writ of certiorari with our supreme court on September 13, 2013; that petition was denied on December 13, 2013.

On October 31, 2012, the day after filing his first appeal with this court, Joseph filed in the trial court a petition styled as a " petition to modify the final judgment of divorce presently under appeal with the Court of Civil Appeals" (" the modification petition" ), in which he asserted, among other things, that a material change in circumstances had occurred that warranted a change in custody and in his child-support and alimony obligations. On March 29, 2013, Michelle filed a motion to dismiss the modification petition for lack of jurisdiction because an appeal of the divorce judgment was pending before this court.[1] The trial court set the modification petition and the motion to dismiss for a hearing. On April 20, 2013, Joseph filed a motion to stay the proceedings, pending the outcome of the appeal before this court, by placing the case on the administrative docket or, in the alternative, a motion for extension of time to file a motion for leave to proceed in this court.

After a hearing on May 9, 2013, at which the trial court heard oral arguments from the parties' attorneys, the trial court entered an order denying Joseph's motion for a stay and granting Michelle's motion to dismiss; the trial court amended its order the same day to include a denial of Michelle's request for an attorney fee. Joseph filed this appeal on June 20, 2013. In his brief on appeal, Joseph argues that the trial court erred by dismissing the modification action instead of entering a stay of further proceedings or placing the case on the trial court's administrative docket.

Joseph explains in his brief to this court that it is imperative that the modification action be stayed, instead of dismissed, because, in the event that a modification is granted in the future, relief may be awarded retroactively only to the date of the filing of the applicable petition to modify. See Brown v Brown,719 So.2d 228, 232 (Ala.Civ.App. 1998), and Hinds v. Hinds, 887 So.2d 267, 273 (Ala.Civ.App. 2003). We note that, as a general rule, a trial court loses jurisdiction over a case that is pending on appeal. See Landry v. Landry, 91 So.3d 88, 89 (Ala.Civ.App. 2012)(" '" [W]hile an appeal is pending, the trial court 'can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.'" '" )(quoting Johnson v. Willis, 893 So.2d 1138, 1141 (Ala. 2004), quoting in turn other cases)). It appears that Alabama appellate courts have not addressed whether a trial court ...


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