REL: 08/28/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF C I V I L APPEALS
SPECIAL TERM, 2009
2080130
Diane E. Johnson
V.
Jodi Halagan, as personal r e p r e s e n t a t i v e of the e s t a t e of
Clarence L. Johnson, deceased
Appeal from Barbour Circuit Court
(DR-05-35)
MOORE, Judge.
Diane E. Johnson
("the
wife")
appeals
from
an order
entered by the Barbour Circuit Court in a divorce action
between her and Clarence L. Johnson ("the husband").
2080130
Procedural History
On
December
9,
2005,
the
husband
filed
a
complaint
seeking a divorce from the wife and an equitable division of
the parties' jointly owned real and personal property.
On
January 13, 2006, the wife filed an answer to the husband's
complaint; she also sought an award of periodic alimony.
On
February
pendente
6,
2006,
lite hearing,"
the
wife
requesting
filed
a
"motion
that, pending
a
for
final
hearing, she be awarded a monthly amount for spousal support.
Following a hearing on February 22, 2006, at which counsel for
both parties informed the court that they had reached an
agreement pertaining to the pendente lite issues and placed
the terms of the agreement on the record, the trial court, on
February 27, 2006, entered a pendente lite order that, among
other things, ordered the husband to pay to the wife $700 per
month
in spousal
support
and ordered
the husband
to pay
insurance on the vehicle being driven by the wife and on the
marital residence.
On November 7, 2006, the wife filed a motion asking that
the trial court find the husband in contempt for his failure
to pay to the wife the monthly spousal support as ordered.
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2080130
issue a restraining order preventing the husband from entering
upon the premises of the marital residence, and increase the
husband's monthly spousal-support obligation.
Following a
hearing on March 13, 2007, at which ore tenus evidence was
received, the trial court entered an order on April 20, 2007,
that,
among
other
things,
(1)
ordered
that
the
marital
residence be listed with a realtor and sold; (2) ordered the
husband to pay all copays for doctor visits and prescription
drugs, to keep medical insurance in effect, and to pay all
outstanding
medical bills pertaining
to the parties;
(3)
ordered the husband to pay spousal support in the amount of
$800
per
lawnmower,
month;
"weed
(4)
ordered
eater,"
the
and
husband
other
to
items
return
the
needed
for
maintenance of the yard and to assist with the upkeep of the
yard until such time as the marital residence was sold; (5)
ordered the parties to maintain the status quo as to all
certificates of deposit, bonds, and personal property and
ordered
the parties
not
to
dispose
of, disperse,
and/or
dissolve any of the personal and real property of the parties;
and
(6) reserved final disposition of the marital assets,
moneys, certificates of deposit, bonds, proceeds from the sale
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2080130
of the marital residence, alimony, and any other matters until
such time as the marital residence was sold.
Both
parties
filed
additional
contempt
motions,
and
orders were entered by the trial court on those motions.
Thereafter, on June 30, 2008, the trial court entered an order
"after hearing extensive oral testimony during trial" that,
among other things, (1) divorced the parties; (2) ordered that
the marital residence located in Clio, Alabama, be sold and
that a hearing
"be set for division of the proceeds from
[that] sale, as well as, [for] division of Certificates of
Deposit" (emphasis added); (3) divided certain of the parties'
personal property;
(4) ordered each party to be responsible
for his or her own debts; (5) awarded each party his or her
individual
checking
accounts
and
the
funds
therein;
(6)
declined to award the wife periodic alimony; and (7) declined
to award either party any form of property settlement from the
other party.
On July 30, 2008, the wife filed a "motion for
reconsideration or in the alternative motion for new trial";
that motion was denied by the trial court on August 22, 2008.
On September 29, 2008, the wife filed a notice of appeal to
this court.
2080130
Subsequent to the filing of the wife's notice of appeal,
the trial court, on September 30, 2008, purported to enter the
following order:
"The court having been notified of an appeal
being taken by the [wife] it is hereby ordered, adjudged and
decreed
that
all proceedings
are
stayed pending appeal."
Thereafter, on October 7, 2008, the trial court purported to
enter the following order:
"The Court having received correspondence from the
[wife] through her attorney . . . that she does not
intend to file an appeal bond hereby lifts and
vacates the stay previously entered.
The closing
shall proceed and all funds and proceeds due either
party shall be interplead[ed] into court for
equitable distribution. ..."
On October 20, 2008, the trial court then purported to enter
the following order:
"The Court hereby sets this case for a
hearing on distribution of marital assets for October 30, 2008
at
10:00
Division."
a.m.
at
The
the
Barbour
hearing
set
County
for
Courthouse,
October
30,
Clayton
2008,
was
continued by the trial court and, it appears from the record,
was eventually held on December 10, 2008.
On December 10,
2008, the trial court purported to render the following order:
"That any and all rights of
[the wife] to be designated a
beneficiary under the Joint and Survivor Annuity plan of
2080130
payment elected by
[the husband]
from Ohio Police
& Fire
Pension Fund be hereby cancelled and of no further force and
effect."
Judicial
That purported order was not put into the State
Information
System
("SJIS") and,
thus,
was
not
entered by the trial court, see Rule 58(c), Ala. R. Civ. P.
There is, however, a December 10, 2008, entry in SJIS, which
states:
"Testimony taken and judge to rule and do order."
Thereafter, the trial court, on January 13, 2009, purported to
enter an order disposing of the remaining marital assets of
the parties .
On
March
2,
2009,
counsel
for
the
husband
filed
a
"suggestion of death" in the trial court, indicating that the
husband had died on February 21, 2009.
On March 10, 2009,
counsel for the husband filed a suggestion of death with this
court.
On April 13, 2009, counsel for the husband filed a
motion to substitute Jodi Halagan, as personal representative
of the husband's estate, as the appellee in this case.
That
motion was granted by this court that same day.
Analysis
Because "'"jurisdictional matters are of such magnitude
that we take notice of them at any time and do so even ex mero
2080130
motu,"'" Horton v. Horton, 822 So. 2d 431, 433 (Ala. Civ. App.
2001) (quoting Wallace v. Tee Jays Mfg. Co., 689 So. 2d 210,
211 (Ala. Civ. App. 1997), quoting in turn Nunn v. Baker, 518
So. 2d 711, 712 (Ala. 1987)), we must first consider whether
we have jurisdiction over this appeal.
"[J]urisdiction of a case can be in only one court at a
time," Foster v. Greer & Sons, Inc., 446 So. 2d 605, 608 (Ala.
1984), and, "'[o]nce an appeal is taken, the trial court loses
jurisdiction to act except in matters entirely collateral to
the appeal.'"
Horton, 822 So. 2d at 434
(quoting Ward v.
Ullery, 412 So. 2d 796, 797 (Ala. Civ. App. 1982)).
Thus, in
the present case, the filing of the wife's notice of appeal on
September 29, 2008, divested the trial court of jurisdiction
to act in the parties' divorce action, which encompassed the
division of all the parties' real and personal property, until
that appeal was resolved.
"An order entered by a trial court
without jurisdiction is a nullity."
528, 532
(Ala. Civ. App. 2004) .
J.B. v. A.B., 888 So. 2d
Accordingly, all orders
entered by the trial court after September 29, 2008, "'except
[orders
entered]
in
matters
appeal,'" are nullities.
entirely
collateral
Horton, 822 So. 2d at 434.
7
to
the
2080130
Having determined that the orders entered by the trial
court after September 29, 2008, are nullities, we must now
determine whether the trial court's June 30, 2008, order is a
final judgment that will support an appeal.
" ' . . . The question whether a judgment is
final is a jurisdictional question, and the
reviewing court, on a determination that
the judgment is not final, has a duty to
dismiss the case. See Jim Walter Homes,
Inc. V. Holman, 373 So. 2d 869, 871 (Ala.
Civ. App. 1979) . '
"Hubbard v. Hubbard, 935 So. 2d 1191, 1192 (Ala.
Civ. App. 2006). See also § 12-22-2, Ala. Code 1975.
"This court has previously stated:
"'"'It is a well established rule that,
with limited exceptions, an appeal will lie
only from a final judgment which determines
the issues before the court and ascertains
and declares the rights of the parties
involved. '" Owens v. Owens, 739 So. 2d 511,
513 (Ala. Civ. App. 1999), quoting Taylor
V. Taylor, 398 So. 2d 267, 269 (Ala. 1981) .
This court has stated:
"'"A final judgment is one that
completely
adjudicates
all
matters in controversy between
all the parties.
"'"... An order that does not
dispose
of
all
claims
or
determine
the
rights
and
liabilities of all the parties to
an
action
is
not
a
final
judgment. In such an instance, an
2080130
appeal may be had 'only upon an
express determination that there
is no just reason for delay and
upon an express direction for the
entry of judgment.'
See Rule
54 (b), Ala. R. Civ. P." '
"Adams V. NaphCare, Inc., 869 So. 2d 1179, 1181
(Ala. Civ. App. 2003) (quoting Eubanks v. McCollum,
828 So. 2d 935, 937 (Ala. Civ. App. 2002))."
Blankenship v. Blankenship, 963 So. 2d 112, 114
App. 2007) .
(Ala. Civ.
Additionally, this court, in Grubbs v. Grubbs,
729 So. 2d 346, 347-48
(Ala. Civ. App. 1998), held that a
divorce judgment that "made no final distribution of all the
parties property" was not a final judgment.
See also McGill
V. McGill, 888 So. 2d 502, 504 (Ala. Civ. App. 2004).
In the present case, the trial court did not finally
dispose of all the marital assets of the parties in its June
30, 2008, order; instead, the trial court ordered that the
marital residence be sold and further ordered that a hearing
"be set for division of the proceeds from [that] sale, as well
as, [for] division of [the] Certificates of Deposit."
That
order was a nonfinal judgment because it did not "'"completely
adjudicate [] all
parties."'"
matters
in
controversy
between
Blankenship, 963 So. 2d at 114.
...
the
Additionally,
the trial court did not certify its June 30, 2008, order as
2080130
final pursuant
to Rule
54(b), Ala. R.
Civ.
P.
See id.
Accordingly, the trial court's June 30, 2008, order is not a
final judgment, and we must dismiss the appeal.
APPEAL DISMISSED.
Thompson, P.J.,
and Pittman, Bryan, and Thomas, JJ.,
concur.
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