REL:
12/11/09
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 CIVIL APPEALS
OCTOBER TERM, 2009-2010
_________________________
2080649
_________________________
Tracy Rene Logan
v.
Ronald Keith Logan
Appeal from Mobile Circuit Court
(DR-06-501890)
BRYAN, Judge.
Tracy Rene Logan ("the wife") appeals from a judgment of
the Mobile Circuit Court divorcing her from Ronald Keith Logan
("the husband") insofar as it awarded custody of the parties'
three children to the husband and divided the parties' marital
2080649
property.
We dismiss the appeal as being from a nonfinal
judgment.
On September 19, 2006, the husband sued the wife for a
divorce on the grounds of incompatibility of temperament. The
husband sought custody of the parties' children and child
support
from
the
wife.
The
husband
submitted
a
written
settlement agreement signed by both parties with his complaint
for
a
divorce.
However,
the
parties
reconciled
shortly
thereafter, and the husband filed a motion to withdraw the
settlement agreement on October 26, 2006.
On January 25, 2008, the wife filed an answer to the
husband's complaint for a divorce and a counterclaim for a
divorce. The wife sought custody of the parties' children, an
equitable division of the parties' property, and payment of
her attorney's fees. The husband filed an amended complaint
for a divorce on February 8, 2008, seeking, among other
things, an equitable division of the parties' marital property
and debts.
On February 22, 2008, the trial court issued an order
that required the parties to maintain the status quo regarding
payment of the parties' mortgage on the marital residence. The
2
2080649
trial court issued an order on August 26, 2008, that, among
other things, ordered the husband to pay the mortgage on the
marital residence. On September 3, 2008, the wife filed a
motion seeking to hold the husband in contempt for his failure
to pay the mortgage on the marital residence in compliance
with the trial court's August 26, 2008, order.
The wife
attached to her motion a "Notice of Foreclosure," which stated
that the marital residence was due to be sold at a public
auction on September 23, 2008. On September 8, 2008, the trial
court entered an order setting the wife's motion for contempt
for an "office conference" on September 17, 2008. There is no
indication in the record that the trial court ruled on the
wife's motion for contempt.
The
trial
court
conducted
an
ore
tenus
hearing
on
December 10, 2008, and on December 23, 2008, the trial court
entered a judgment that divorced the parties, awarded custody
of the parties' children to the husband, and divided the
parties' marital assets and debts. The judgment did not
dispose of the wife's motion for contempt.
The wife filed a
motion for a new trial or, in the alternative, a motion to
alter, amend, or vacate the trial court's judgment pursuant to
3
2080649
Rule 59, Ala. R. Civ. P.
Following a hearing, the trial court
denied the wife's postjudgment motion on March 19, 2009. The
wife timely appealed.
The wife raises four issues on appeal relating to the
trial court's award of custody of the children to the husband
and the division of the marital assets. However, we must first
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)). We also note
that an untimely filed notice of appeal results in
a lack of appellate jurisdiction, which cannot be
waived. Luker v. Carrell, [Ms. 2040318, March 31,
2006] ___ So. 2d ___, ___ (Ala. Civ. App. 2006).
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. 2006)."
Parker v. Parker, 946 So. 2d 480, 485 (Ala. Civ. App. 2006).
"'A final judgment is one that disposes of all the claims
and controversies between the parties.'" Sanders v. Sanders,
[Ms. 2080378, September 11, 2009] ___ So. 3d ___, ___ (Ala.
Civ. App. 2009) (quoting Heaston v. Nabors, 889 So. 2d 588,
4
2080649
590 (Ala. Civ. App. 2004)). "[A] trial court's failure to rule
on a contempt motion relating to an interlocutory order would
render any subsequent judgment nonfinal because the filing of
the
contempt
motion
would
not
be
considered
as
having
initiated a separate proceeding." Decker v. Decker, 984 So. 2d
1216, 1220 (Ala. Civ. App. 2007). In the present case, the
trial court's failure to dispose of the wife's September 3,
2008, motion for contempt renders the trial court's December
23, 2008, judgment nonfinal. Therefore, the wife's appeal must
be dismissed. See Sanders v. Sanders, ___ So. 3d at ___; and
Brunson v. Brunson, 991 So. 2d 723 (Ala. Civ. App. 2007).
APPEAL DISMISSED.
Thompson, P.J., and Pittman, Thomas, and Moore, JJ.,
concur.
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