Elizabeth Day Sanders v. C. Shane Sanders
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REL: 09/11/2009 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) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF C I V I L APPEALS SPECIAL TERM, 2009 2080378 Elizabeth Day Sanders V. C. Shane Sanders Appeal from Lee Circuit Court (DR-07-515) MOORE, Judge. Elizabeth Day Sanders ("the wife") appeals from an order of the Lee Circuit Court granting a motion for a new trial filed by C. Shane Sanders divorce proceeding. ("the husband") in the parties' We dismiss the appeal. 2080378 On November 9, 2007, the wife filed a complaint seeking a divorce from the husband. On January 29, 2008, the husband answered and counterclaimed for a divorce. The wife denied all allegations in the husband's counterclaim. A pendente lite order was subsequently entered that, among other things, required the husband to pay the wife $1,000 per month, set forth a custody schedule, prohibited the parties from being under the influence of alcohol during their respective custodial periods, and prohibited the parties from speaking negatively about the other party in the presence of their children and from discussing legal matters with the children. Subsequently, on February 8, 2008, the wife filed a motion requesting that the trial court hold the husband in contempt for violating the pendente lite order; the record does not contain an order disposing of that motion. After a trial, the trial court entered a judgment on September 5, 2008, that, among other things, divorced the parties on the ground of incompatibility, awarded the parties joint custody of their children, ordered the husband to pay child support and rehabilitative alimony, ordered the parties to sell the marital home, and divided the parties' personal 2 2080378 property and debts. The judgment did not dispose of the wife's motion for contempt. On October 5, 2008, the husband filed a motion to alter, amend, or vacate the September 5, 2008, judgment or, in the alternative, pursuant to Rule 59, Ala. R. Civ. P. the husband's motion, granting a new trial. the trial for a new trial, Following a hearing on court entered an order The wife filed a motion to alter or amend the trial court's order granting a new trial. The trial court denied her motion, and the wife timely appealed. On appeal, the wife argues that the husband failed to meet the required elements to be entitled to a new trial. We must, however, initially determine whether this court has jurisdiction to consider this appeal. "'It is well settled law that "jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." ' Pace V. Utilities Bd. of Foley, 752 So. 2d 510, 511 (Ala. Civ. App. 1999) (quoting Singleton v. Graham, 716 So. 2d 224, 225 (Ala. Civ. App. 1998)). Additionally, '[t]he 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.' Hubbard v. Hubbard, 935 So. 2d 1191, 1192 (Ala. Civ. App. 2 00 6)." Parker v. Parker, 946 So. 2d 480, 485 (Ala. Civ. App. 2006). 2080378 Although an order granting a motion for a new trial is appealable pursuant to Ala. Code 1975, ยง 12-22-10,^ we note that a motion for a new trial can be filed only in reference to a final judgment. n.l Thompson v. Gardner, 889 So. 2d 596, 599 (Ala. Civ. App. 2004) . disposes of parties." all the "A final judgment claims is one that and between the controversies Heaston v. Nabors, 889 So. 2d 588, 590 App. 2004) . (Ala. Civ. In the present case, the trial court's September 5, 2008, judgment did not dispose of the wife's February 8, 2008, motion for contempt. fully adjudicate parties Accordingly, the judgment did not all the present controversies between and is, therefore, not a final judgment. the See Rule 54(b), Ala. R. Civ. P.; Decker v. Decker, 984 So. 2d 1216, 1220 (Ala. Civ. App. 2007); and Wallace v. Tee Jays Mfg. Co., 689 So. 2d 210, 211-12 (Ala. Civ. App. 1997). Based on the foregoing, we must dismiss the appeal. See Decker, 984 So. 2d at 1220; and Thompson, 889 So. 2d at 599 n.l. ^Section 12-22-10 states: "Either party in a civil case, or the defendant in a criminal case, may appeal to the appropriate appellate court from an order granting or refusing a motion for a new trial by the circuit court." 2080378 APPEAL DISMISSED. Thompson, concur. P.J., and Pittman, Bryan, and Thomas, JJ.,
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