May 22, 2015
Ex parte Wallace Williams; (In re: Wallace Williams
(Russell Circuit Court, DR-12-177).
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
Judge. Thompson, P.J., and Pittman and Thomas, JJ., concur.
Donaldson, J., concurs specially.
FOR WRIT OF MANDAMUS
Williams (" the husband" ) seeks a writ of mandamus
from this court directing the Russell Circuit Court ("
the trial court" ) to vacate its orders entered in
response to the September 27, 2013, postjudgment motion filed
by Chevon Williams (" the wife" ) for lack of
August 29, 2013, the trial court entered a judgment ("
the divorce judgment" ), divorcing the husband and the
wife and, among other things, containing provisions regarding
custody of the parties' minor child, visitation between
the husband and the child, and division of the real and
personal property belonging to the parties. On September 27,
2013, the wife filed a postjudgment motion, asserting that
the trial court had erred by ordering that the husband's
child-support payments were to commence on September 5, 2014,
rather than on September 5, 2013; by not entering a
child-support withholding order concerning the husband's
child-support obligation; by not awarding the wife a portion
of the husband's retirement and survivor benefits; by
failing to specify in the divorce judgment that the wife was
to be entitled to claim the parties' minor child for
income-tax purposes; by failing to specify in the divorce
judgment which party was to be responsible for the
child's health insurance; and by failing to reserve the
issue of postminority educational support. The wife also
asserted that the husband had violated portions of the
divorce judgment and that the evidence presented at trial,
and newly discovered evidence, established that the husband
had misrepresented to the court the status of the mortgage
payments on the marital residence. The husband filed a
response to the wife's postjudgment motion.
December 18, 2013, the trial court set the wife's
postjudgment motion for consideration at a status docket on
January 28, 2014. On February 13, 2014, the wife filed a
motion for a continuance; the trial court entered an order on
February 21, 2014, rescheduling the matter for consideration
at a status docket on March 26, 2014. On June 27, 2014, the
trial court entered an order setting the wife's motion
for a hearing on August 26, 2014. On August 26, 2014, the
trial court granted the wife's motion for a continuance
and reset the hearing for October 2, 2014. On October 2,
2014, the trial court entered an order granting, in part, the
wife's postjudgment motion and amending the divorce
judgment to provide that the payment of child support was to
begin on September 5, 2013, rather than on September 5, 2014,
as had been stated in the divorce judgment. The trial court
later amended that order on October 6 and 9, 2014, to correct
clerical errors. In each of those orders, the trial court
noted that the remaining issues raised in the wife's
postjudgment motion would be heard at a later date.
March 4, 2015, the husband filed in the trial court a "
motion to vacate orders and motion to dismiss for lack of
subject matter jurisdiction." In his motion, the husband
argued that the wife's postjudgment motion had been
operation of law on December 26, 2013, that the trial
court's orders of October 2, October 6, and October 9,
2014 (" the October 2014 orders" ), were therefore
void, and that all issues raised in the mother's
postjudgment motion -- with the exception of the issue
concerning the clerical error regarding the starting date for
the child-support obligation, which the husband conceded was
susceptible to the trial court's review pursuant to Rule
60(a), Ala. R. Civ. P. -- were no longer pending before the
trial court after December 26, 2013. The trial court entered
an order on March 5, 2015, which stated, in pertinent part:
" 2. That the [wife's postjudgment motion] was filed
on September 27, 2013. The Court continued the Motion at the
request of both parties and finally entered an Order
addressing a portion of the Motion on October 6, 2014, and
again on October 9, 2014, and in each Order issued in October
2014 the Court indicated that the remaining issues would be
heard at a later date.
" 3. That [the husband] moved to dismiss all other
issues and in support thereof argued that all other issues
... were denied by operation of law on December 27th,
2013, pursuant to Rule 59.1, Alabama Rules
of Civil Procedure. The Court denies this motion and finds
that on October 9, 2014, the parties appeared with previous
counsel and agreed for the issues raised in [the wife's]
post-judgment motion to be set for a hearing. The Court finds
that this was the 'express consent of all parties'
required to extend the 90 day period required by Rule
husband then filed this petition for mandamus review.
" The writ of mandamus is an extraordinary legal remedy.
Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358,
360 (Ala. 1993). Therefore, this Court will not grant
mandamus relief unless the petitioner shows: (1) a clear
legal right to the order sought; (2) an imperative duty upon
the trial court to perform, accompanied by its refusal to do
so; (3) the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the Court. See Ex parte
Wood, 852 So.2d 705, 708 (Ala. 2002)."
parte Davis, 930 So.2d 497, 499 (Ala. 2005). " A
petition for a writ of mandamus is the proper method for
obtaining review of a trial court's authority to rule on
a posttrial motion beyond the time period set forth in Rule
59.1, Ala. R. Civ. P." Ex parte Jackson Hosp. &
Clinic, Inc., 49 So.3d 1210, 1211 (Ala. 2010).
husband concedes in his petition for a writ of mandamus, as
he did before the trial court, that the trial court's
correction of a clerical error in its October 2014 orders to
specify the date on which his child-support payments were to
begin was within the trial court's jurisdiction. See Rule
60(a), Ala. R. Civ. P. He argues, however, that the remaining
issues raised in the wife's postjudgment motion were
raised pursuant to Rule 59(e), Ala. R. Civ. P., and that,
because those issues were not ruled upon within 90 days of
the date the motion was filed, as required by Rule 59.1, Ala.
R. Civ. P., the trial court lost jurisdiction to rule on
wife argues in her answer to the husband's petition that
the divorce judgment was not final because, she says, it
" failed to assess with specificity various issues at
contest between the Parties, including but not limited to a
specific visitation schedule, a specific supervisor for the
Husband's visitations and the specific monthly child
support obligations of the Parties." Assuming, without
deciding, that the trial court's failure to include in
the divorce judgment a specific visitation schedule or a
specific supervisor for the husband's visitations with
the child was in error, we cannot conclude that those
purported errors render the judgment nonfinal. See Pratt
v. Pratt, 56 So.3d 638 (Ala.Civ.App. 2010); and
M.S.M. v. M.W.M., 72 So.3d 626, 636 (Ala.Civ.App.
2011). A trial court's failure to determine an amount of
child support owed by a party does, however, render a
judgment nonfinal. See Turner v. Turner, 883 So.2d
233, 234 (Ala.Civ.App. 2003). In the divorce judgment, the
trial court stated, in pertinent part:
" [The husband] is to pay child support to [the wife],
as determined by the Alabama Child Support Guidelines
beginning September 5, 2014, and by the 5th of each month
until the minor child ... reache[s] the age of 19, marries,
dies, or becomes self-supporting."
divorce judgment attached to the wife's answer to the
petition for a writ of mandamus does not include any
attachments. Additionally, the husband declined to include
the divorce judgment in his petition. " When [an
appellate c]ourt considers a petition for a writ of mandamus,
the only materials before it are the petition and the answer
and any attachments to those documents." Ex parte
Guaranty Pest Control, Inc., 21 So.3d 1222, 1228 (Ala.
2009). In the present case, the divorce judgment did not
order the husband to pay a specific amount of child support
but, rather, appears to indicate that that amount was to be
determined by application of the Alabama Child Support
Guidelines. See Rule 32, Ala. R. Jud. Admin. Because the
trial court's statement regarding the amount of child
support, without more, did not fully dispose of the rights
and liabilities of the parties, the divorce judgment was not
a final judgment. See Tomlinson v. Tomlinson, 816
So.2d 57, 58 (Ala.Civ.App. 2001).
on the materials before us, the trial court first indicated
the amount of child support to be paid by the husband in its
October 2, 2014, order amending the divorce judgment, in
which it stated, among other things, that " [t]here
shall be an immediate income withholding [order] to take out
the current support of $456.00 per month." Thus, the
divorce judgment became final on October 2, 2014, when the
trial court specified the amount of child support to be paid
by the husband. Because the wife's postjudgment motion
was filed before the entry of the October 2, 2014, final
divorce judgment, that motion quickened on that date.
Miller v. Miller, 10 So.3d 570, 572 (Ala.Civ.App.
2008) (" '[A] premature postjudgment motion that, if
it had been directed to a final judgment, would toll the time
for filing a notice of appeal from a final judgment (see Ala.
R. App. P., Rule 4(a)(3)) " quickens" on the day
that the final judgment is entered.'" (quoting
Richardson v. Integrity Bible Church, Inc., 897
So.2d 345, 347 (Ala.Civ.App. 2004))).
agree with the husband that, with the exception of the
correction of the date of the child-support award, the
wife's postjudgment motion sought relief pursuant to Rule
59(e), Ala. R. Civ. P., which allows a trial court to alter,
amend, or vacate a judgment. See Freeman v. Freeman,
67 So.3d 902, 906 (Ala.Civ.App. 2011). Thus, pursuant to Rule
59.1, Ala. R. Civ. P., a motion filed pursuant to Rule 59(e)
remains pending for 90 days following the
entry of a final judgment. Thus, in this case, the trial
court had 90 days from October 2, 2014, to rule on the
wife's postjudgment motion. Rule 59.1 also allows for the
parties to extend the time for ruling on a motion filed
pursuant to Rule 59 by the " express consent of all the
parties, which consent shall appear of record."
trial court made a finding in its March 5, 2015, order that
the parties had appeared on October 9, 2014, " and
agreed for the issues raised in [the wife's]
post-judgment motion to be set for a hearing," and that
that agreement amounted to the express consent of the parties
to extend the time for ruling on the issues raised in the
wife's postjudgment motion. We disagree. First, we note
that " any consent to extend the 90-day period for
ruling on a postjudgment motion must be in direct and
unequivocal terms." Higgins v. Higgins, 952
So.2d 1144, 1146 (Ala.Civ.App. 2006). Thus, any agreement by
the parties to merely set the wife's postjudgment motion
for a hearing does not amount to an agreement to extend the
90-day period for ruling on the wife's motion. Moreover,
because the divorce judgment did not become final, and the
wife's postjudgment motion did not quicken, until October
2, 2014, the hearing held by the trial court on October 9,
2014, occurred within the time for ruling on that motion,
and, as a result, any agreement to set a hearing on that
motion did not indicate, either expressly or by inference,
that the parties had agreed to extend the time for a ruling
on that motion. See Harrison v. Alabama Power Co.,
371 So.2d 19, 20-21 (Ala. 1979) (" The consent or assent
to a continuance of a hearing does not satisfy the
requirement that the record show the parties' express
consent to an extension of the 90-day period." ). Based
on the materials before us, we conclude that the remaining
issues raised in the wife's postjudgment motion were
denied by operation of law on December 31, 2014. See Rule
petition, the husband seeks an order requiring the trial
court to vacate the October 2014 orders. However, as
explained above, the trial court did not lack jurisdiction to
consider the wife's postjudgment motion after December
26, 2013, and the October 2014 orders are not void. The
husband also requests that the trial court be ordered to
" dismiss" the issues raised in the wife's
postjudgment motion, which the trial court expressly declined
to do. Because the trial court operation of law on December
31, 2014, we grant the husband's petition for the writ of
mandamus in part and direct the trial court to vacate its
March 5, 2015, order insofar as that order concluded that the
trial court retained jurisdiction to consider the remaining
issues in the wife's postjudgment motion.
GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
P.J., and Pittman and Thomas, JJ., concur.
J., concurs specially.
J., concurs specially.
concur. I write to note that Rule 59(e), Ala. R. Civ. P.,
which addresses a motion to alter, amend, or vacate a
judgment, has been construed to apply only to a final
judgment from which an appeal could be taken. Ex parte
Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.
2003). Motions to alter, amend, or vacate nonfinal orders
have been held to be motions to " reconsider" and
not filed pursuant to Rule 59(e). See, e.g., State v.
Brantley Land, L.L.C., 976 So.2d 996, 998 n.3
(Ala. 2007); Lambert v. Lambert, 22 So.3d 480,
483-84 (Ala.Civ.App. 2008). Issues can arise when more than
one postjudgment motion is filed. See, e.g., Roden v.
Roden, 937 So.2d 83 (Ala.Civ.App. 2006) (discussing the
effect of a second postjudgment motion). Further, an order or
judgment cannot be orally rendered. Rule 58(a), Ala. R. Civ.
P.; Ex parte Chamblee, 899 So.2d 244, 248 (Ala. 2004). To
avoid confusion to the bench and bar, I think the issue
whether a motion to alter, amend, or vacate filed before the
entry of a final judgment is a " prematurely filed"
motion under Rule 59 that somehow " quickens" upon
the entry of a final judgment should be reexamined; however,
we currently are bound by authority to the contrary. New
Addition Club, Inc. v. Vaughn, 903 So.2d 68 (Ala. 2004);
Jakeman v. Lawrence Grp. Mgmt. Co., 82 So.3d 655
Rule 59.1, Ala. R. Civ. P., provides that a
postjudgment motion that is not ruled on by the court within
90 days is deemed denied at the expiration of the 90-day
period. The 90th day following the wife's filing of her
postjudgment motion on September 27, 2013, was December 25,
2013, Christmas Day, a state holiday. Therefore, assuming for
the sake of argument that the husband's argument is
correct, the wife's postjudgment motion would have been
deemed denied on December 26, 2013. See Rule 6, Ala. R. Civ.
P.; see also Williamson v. Fourth Ave. Supermarket,
Inc., 12 So.3d 1200, 1203-04 (Ala. 2009).
See supra note 1.