Rehearing
Denied May 17, 2019.
Appeal
from Shelby Circuit Court (DR-18-6.01).
Philip
Leyton McCarn, appellant, pro se.
Submitted
on appellant's brief only.
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.
Page 384
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
Page 385
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 ...