Mark J. Alt
Myong C. Alt
from Dale Circuit Court (DR-11-512.01)
THOMPSON, PRESIDING JUDGE.
January 23, 2017, the Dale Circuit Court ("the trial
court") entered a judgment modifying certain provisions
of a judgment that divorced Myong C. Alt ("the
wife") and Mark J. Alt ("the husband"). The
trial court, apparently ex mero motu,
amended that modification judgment the next day. On February
24, 2017, the husband filed a notice of appeal to this court.
while the appeal was pending in this court and was scheduled
for mediation, the wife notified this court that on February
2, 2017, the husband had filed for Chapter 7 bankruptcy
protection in the Bankruptcy Court for the Middle District of
Alabama ("the bankruptcy court"); accordingly, the
wife moved to stay mediation. On April 4, 2017, this court
issued an order directing the parties to file letter briefs
addressing whether the husband's notice of appeal of the
modification judgment was valid
"in light of the filing of the bankruptcy petition
before the filing of the notice of appeal. See Hewett v.
Wells Fargo Bank, N.A., 197 So.3d 1105 ([Fla. Dist. Ct.
App.] 2016); In re Capgro Leasing Associates, 169
B.R. 305, 313 (Bankr. E.D.N.Y. 1994); Autoskill Inc. v.
National Educational Support Systems, Inc., 994 F.2d
1476 (10th Cir. 1993), overruled on other grounds by TW
Telecom Holdings Inc. v. Carolina Internet Ltd., 661
F.3d 495 (10th Cir. 2011)."
response to this court's order, the wife submitted on
April 11, 2017, a letter brief in which she argued, among
other things, that the husband's appeal should be
dismissed. The husband did not respond to this court's
order, and he has submitted no filing in this court.
April 19, 2017, the wife filed in this court a notice stating
that the bankruptcy court had terminated the bankruptcy stay.
The wife submitted a copy of an April 4, 2017, order, which
"[The wife] filed a motion for relief from the automatic
stay imposed by 11 U.S.C. § 362(a) to proceed in a state
court domestic-relations case described in the motion. The
motion came for a hearing on April 3, 2017. The [husband]
could offer no defense. Accordingly, it is
"ORDERED that the motion is GRANTED and the stay is
TERMINATED to allow the [wife] to proceed in the state court
in original.) This court ordered that the appeal proceed but
later entered an order staying briefing pending the
resolution of the wife's request, made in her April 11,
2017, letter brief, that the appeal be dismissed.
court's research has not revealed any caselaw precedent
in Alabama concerning an appellate court's jurisdiction
to consider an appeal of a judgment when a party filed for
bankruptcy protection after a judgment was entered but before
filing a notice of appeal from that judgment. But
see Linowiecki v. Nichols, 120 So.3d 1082 (Ala. Civ.
App. 2013) (discussing the effect of the automatic-stay
provision in the Bankruptcy Code with regard to the
determination of time to rule on a postjudgment motion when
the bankruptcy stay is lifted). Other jurisdictions have
addressed the issue, however. The commencement of a
bankruptcy action "operates as a stay" of, among
other things, "the commencement or continuation ... of a
judicial ... action or proceeding against the
debtor...." 11 U.S.C. § 362(a)(1). The filing of a
notice of appeal has been held to be a continuation of a
judicial proceeding that is subject to the automatic-stay
provision of § 362. AmMed Surgical Equip., LLC v.
Professional Med. Billing Specialists, LLC, 162 So.3d
209, 211 (Fla. Dist. Ct. App. 2015); In re Capgro Leasing
Assocs., 169 B.R. 305 310-11 (Bankr. E.D. N.Y.1944).
Accordingly, a notice of appeal, filed after a petition is
filed in the bankruptcy court, is considered "void and
of null effect." In re Capgro Leasing Assocs.,
169 B.R. at 313; AmMed Surgical Equip., LLC v.
Professional Med. Billing Specialists, LLC, 162 So.3d at
211 ("A notice of appeal filed in a federal appellate
court following the filing of a bankruptcy petition is
ineffective to confer jurisdiction on the court.").
Thus, the husband's February 24, 2017, notice of appeal,
because it was filed after the husband filed for bankruptcy
protection, was not effective.
Hewett v. Wells Fargo Bank, N.A., 197 So.3d 1105
(Fla. Dist. Ct. App. 2016), Hewett, the appellant, filed for
bankruptcy protection after a foreclosure judgment had been
entered, but before he filed a notice of appeal of that
foreclosure judgment. The Florida appellate court concluded
that the notice of appeal was a nullity and that it lacked
jurisdiction to consider the appeal. 197 So.3d at 1106-07.
Bankruptcy Code provides that certain time limitations that
arise in state courts are tolled when an action is filed
seeking bankruptcy protection.
"(c) Except as provided in section 524 of this title, if
applicable nonbankruptcy law, an order entered in a
nonbankruptcy proceeding, or an agreement fixes a period for
commencing or continuing a civil action in a court other than
a bankruptcy court on a claim against the debtor, or against
an individual with respect to which such individual is
protected under section 1201 or 1301 of this title, and such
period has not expired ...