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Stallworth v. Stallworth

Alabama Court of Civil Appeals

August 4, 2017

Cristy C. Stallworth
Francis D. Stallworth III

         Appeal from Monroe Circuit Court (DR-10-127)

          THOMPSON, Presiding Judge.

         Cristy C. Stallworth ("the wife") appeals from an order of the Monroe Circuit Court ("the trial court") divorcing her from Francis D. Stallworth III ("the husband"). For the reasons discussed below, we dismiss the appeal because it was taken from a nonfinal order.

         The record indicates that the husband filed a complaint for a divorce on October 27, 2010. On September 21, 2011, the trial court entered a "temporary order" incorporating an agreement the parties had reached during mediation regarding pendente lite support. Pursuant to that agreement, the husband was to pay the wife $2, 500 each month in addition to "all other expenses he is currently paying." Those expenses were not enumerated, although the wife was directed

"to keep receipts on all expenses she pays, including credit card statements, etc., and she shall maintain a reasonable accounting of expenses, mileage, etc., which shall be provided monthly to her attorney and then to the husband's attorney. The wife shall not run the upstairs AC unit unless the children are spending time there. The wife shall, to the extent possible, conserve utilities in a reasonable manner in the marital residence."

         On November 16, 2015, the wife filed a motion for a finding of contempt against the husband, alleging that the husband had refused to pay what she called the "temporary alimony" that month. That same day, the trial court entered an order directing the parties to comply with the terms of the mediated pendente lite agreement and set a hearing on the motion for November 23, 2015. The record does not indicate that an order was entered after the hearing. On January 19, 2016, the wife filed another contempt motion, again alleging that the husband was not paying the "temporary alimony" as ordered in the September 21, 2011, order.

         On March 24, 2016, the trial court entered an order divorcing the parties and, among other things, dividing the marital property and awarding the wife periodic alimony.[1] In that order, the trial court did not expressly find the husband in contempt, but it specified "that any installments of temporary support which have accrued under former orders herein, but which are unpaid, are specifically preserved herein, and shall be paid by the husband." The trial court did not determine the amount the husband was in arrears for his failure to pay the "temporary support."

         The trial court purported to certify the order as final pursuant to Rule 54, Ala. R. Civ. P., stating that it found "that there is no just reason for delay in the entry of a final judgment as to all matters which are finally adjudicated above, and the Court therefore directs entry of a final judgment with respect thereto." The wife appealed from the March 24, 2016, order.

         The parties in this case do not raise the issue of the finality of the order or this court's jurisdiction to consider this appeal. However, it is well settled that

"'"[j]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu."' Raybon v. Hall, 17 So.3d 673, 675 (Ala. Civ. App. 2009) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987)). '"The question whether an order appealed from is final is jurisdictional, and the reviewing court, on a determination that the order is not final, has a duty to dismiss the case on its own motion."' Hinson v. Hinson, 745 So.2d 280, 281 (Ala. Civ. App. 1999) (quoting Powell v. Powell, 718 So.2d 80, 82 (Ala. Civ. App. 1998))."

Swindle v. Swindle, 157 So.3d 983, 988-89 (Ala. Civ. App. 2014).

         A final judgment is one that resolves all issues and determines the rights of all parties involved. In Swindle, we wrote:

"'A final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself. Gandy v. Hagler, 245 Ala. 167, 16 So.2d 305 [(1944)]; Bell v. Otts, 101 Ala. 186, 13 So. 43');">13 So. 43 [(1893)]. All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own. A judgment for damages to be final must, therefore, be for a sum certain determinable without resort to extraneous facts. Gandy v. Hagler, supra; Drane v. King, 21 Ala. 556');">21 Ala. 556 [(1852)].'
"Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976) (first emphasis added). '"The question of finality of the [judgment] may be phrased as whether there is 'something more for the court to do.'"' Wilson v. Wilson, 736 So.2d 633, 634 (Ala. Civ. App. 1999) (quoting Powell v. Powell, 718 So.2d 80 at 82 [(Ala. Civ. App. 1998)], ...

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