Released for Publication August 5, 2015.
Appeal from Etowah Circuit Court. (DR-12-900160). William B. Ogletree, Trial Judge.
APPEAL DISMISSED WITH INSTRUCTIONS.
For Appellant: John D. McCord of McCord & Martin, Gadsden.
For Appellee: Shannon L. Millican, Gadsden.
THOMPSON, Presiding Judge. Pittman, Moore, and Donaldson, JJ., concur. Thomas, J., concurs in the result, without writing.
THOMPSON, Presiding Judge.
In October 2012, Timothy Schoen Slaton (" the father" ) filed a complaint in the Etowah Circuit Court (" the trial court" ) seeking a divorce from Frances Dea Slaton (" the mother" ). In his complaint, the father sought an equitable property division and an award of custody of the child born of the parties' marriage. The mother answered and counterclaimed, also seeking an award of custody of the parties' minor child.
The trial court conducted an ore tenus hearing. On November 7, 2013, the trial court entered a judgment in which it divided the parties' property and awarded the father sole custody of the parties' child. The trial court awarded the mother a standard schedule of visitation and ordered the mother to pay child support. The mother filed a postjudgment motion on November 18, 2013. Under Rule 59.1, Ala. R. Civ. P., the mother's postjudgment motion could remain pending until the trial court ruled on that motion or until 90 days expired, whichever first occurred. Rule 59.1 specifically provides, in part:
" No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59[, Ala. R. Civ. P.,] 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 .... A failure by the trial court to render an order disposing of any pending postjudgment 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."
Rule 59.1, Ala. R. Civ. P. In this case, the date on which the mother's postjudgment motion would have been deemed denied pursuant to Rule 59.1 was February 18, 2014.
On February 7, 2014, the parties filed in the trial court a joint motion pursuant to Rule 59.1, seeking to extend the time in which the mother's postjudgment motion could remain pending under that rule.
See Carter v. Hilliard, 838 So.2d 1062, 1064 (Ala.Civ.App. 2002) (" An express consent of the parties, one evidenced by 'positive steps to express [an agreement to extend the 90-day period] in a direct and ...