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McCarn v. Langan

Alabama Court of Civil Appeals

March 15, 2019

Philip Leyton McCarn
v.
Jaclyn McCarn Langan

          Appeal from Shelby Circuit Court (DR-18-6.01).

          THOMPSON, PRESIDING JUDGE.

         On January 9, 2018, Jacklyn McCarn Langan filed in the Shelby Circuit Court ("the trial court") a petition to modify the child-support provisions of an April 2014 judgment of the Mobile Circuit Court that divorced her from Philip Leyton McCarn. The record indicates that two earlier orders of the Mobile Circuit Court had modified the visitation provision of the parties' 2014 divorce judgment. Both parties now live in Shelby County, and they have agreed that Shelby County was the proper venue in which to litigate this action.

         In her 2018 modification petition, Langan alleged that McCarn had failed to make child-support payments as directed by the 2014 divorce judgment and that he owed a child-support arrearage. Langan also sought a modification of McCarn's child-support obligation. McCarn answered and opposed Langan's petition. The trial court conducted an ore tenus hearing on June 11, 2018.

         On June 14, 2018, the trial court entered a judgment in which it found that McCarn was $4, 698 in arrears in his child-support obligation. The trial court also modified McCarn's child-support obligation from $522 per month to $1, 107 per month. The June 14, 2018, judgment was entered on the State Judicial Information System ("SJIS"). See Rule 58(c), Ala. R. Civ. P. ("An order or a judgment shall be deemed 'entered' within the meaning of these Rules ... as of the actual date of the input of the order or judgment into the State Judicial Information System. An order or a judgment rendered electronically by the judge ... shall be deemed 'entered' ... as of the date the order or judgment is electronically transmitted by the judge to the electronic-filing system.").

         On June 20, 2018, the trial court entered a second, identical copy of the June 14, 2018, judgment into the SJIS and the record. That judgment did not alter the substance of the June 14, 2018, judgment; it was merely a duplication of the original judgment. Accordingly, the June 14, 2018, judgment was the final judgment in this case from which any postjudgment motion or appeal must have been filed. Lyman v. Lyman, 753 So.2d 1159, 1160 (Ala. Civ. App. 1999).

         The time for taking a timely appeal may be tolled by the filing of a timely postjudgment motion. Bice v. SCI Alabama Funeral Home Servs., 764 So.2d 1280, 1281 (Ala. Civ. App. 2000). McCarn filed a postjudgment motion, purportedly pursuant to Rule 59(e), Ala. R. Civ. P., on July 20, 2018. However, a valid Rule 59 motion must be filed within 30 days of the entry of the judgment. Rule 59(e); Burgess v. Burgess, 99 So.3d 1237, 1239 (Ala. Civ. App. 2012) ("A timely postjudgment motion must be filed within 30 days of the entry of the final judgment."). Thus, McCarn had 30 days from the entry of the June 14, 2018, judgment, or until July 16, 2018, to timely file a postjudgment motion pursuant to Rule 59(e).[1]McCarn's July 20, 2018, postjudgment motion was untimely filed, and it did not operate to extend the time for taking a timely appeal. McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala. Civ. App. 2004); Overy v. Murphy, 827 So.2d 804, 806 (Ala. Civ. App. 2001); and Bice v. SCI Alabama Funeral Home Servs., 764 So.2d at 1281.

         The trial court entered an order purporting to deny McCarn's July 20, 2018, motion on September 11, 2018. That order was void, however, because McCarn's motion was not timely filed, and, therefore, the trial court did not have jurisdiction to rule on it. Burgess v. Burgess, 99 So.3d at 1239-40.

         A party has 42 days following the entry of a judgment to file a timely notice of appeal. Rule 4(a)(1), Ala. R. App. P. In this case, McCarn had until July 26, 2018, to appeal the June 14, 2018, judgment. McCarn filed a notice of appeal on September 19, 2018. That notice of appeal was not timely filed within 42 days of the entry of the June 14, 2018, judgment, and it did not invoke the jurisdiction of this court. Therefore, we must dismiss the appeal. Rule 2(a)(1), Ala. R. App. P.; Kennedy v. Merriman, 963 So.2d 86, 88 (Ala. Civ. App. 2007); see also Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ. App. 2006) ("[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived.").

         APPEAL DISMISSED.

          Donaldson, Edwards, and Hanson, JJ., concur.

          Moore, J., concurs specially.

          MOORE, Judge, concurring specially.

         I concur that the appeal ...


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