Misty Cowart Martin v. Donald Jason Cowart
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REL: 10/28/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2100379 M i s t y Cowart M a r t i n v. Donald Jason Cowart Appeal from T a l l a p o o s a C i r c u i t (DR-99-111.03) PITTMAN, Judge. Misty Cowart M a r t i n ("the mother") a p p e a l s denying herp e t i t i o n t omodify previous parties Court joint custody of thec h i l d from an order judgments awarding t h e born during t h e mother's 2100379 marriage to the appeal The Donald Jason as b e i n g from parties divorced agreed were slightly to share a g r e e m e n t was Cowart a nonfinal married over a joint ordered t o pay petition to February later, custody incorporated into his regularly of the days support. modify In the We 1 dismiss 1999, i n March the and They and their child, d i v o r c e judgment, custody off. 2001, which periods Neither party the provision mother of filed the was a divorce j u d g m e n t ; t h a t p r o c e e d i n g c o n c l u d e d when b o t h p a r t i e s to c o n f i r m the o r i g i n a l this 2000. exercise his custodial scheduled child father"). judgment. in year p r o v i d e d that the f a t h e r would during (the agreed j o i n t - c u s t o d y p r o v i s i o n of the d i v o r c e judgment. On February to modify of the c h i l d , support. seeking sole 11, 2009, t h e mother f i l e d petition the d i v o r c e judgment, s e e k i n g s o l e p h y s i c a l On scheduled v i s i t a t i o n March 17, a modification physical custody 2009, of the the f o r the father father, filed of the c h i l d and "such custody and child a counterclaim d i v o r c e judgment to other, award him further, Although the p l e a d i n g s i n t h i s case designate the father " D o n a l d B. C o w a r t , " t h e f a t h e r i d e n t i f i e d h i m s e l f a t t r i a l "Donald Jason Cowart." 1 as as a second 2 2100379 different, and general good c o n s c i e n c e , filed a petition mother, rights be relief entitled." seeking alleging that to the child Following t o w h i c h he she and a April finding had that a hearing, On of may, 3, in equity 2009, contempt interfered with she had the as his father to the custodial i n t i m i d a t e d the the t r i a l c o u r t denied and child. the p e t i t i o n s t o m o d i f y f i l e d by b o t h p a r t i e s , f i n d i n g t h a t " [ n ] e i t h e r p a r t y has submitted evidence, trial to court, a legally change the sound joint however, f a i l e d reason, custody supported order t o r u l e on the of in 2001." father's the The contempt petition. "Even t h o u g h t h e i s s u e has n o t been a d d r e s s e d by either party, this court must first determine whether i t has jurisdiction over this appeal. ' J u r i s d i c t i o n a l matters are of such importance t h a t a c o u r t may take n o t i c e o f them ex mero motu M c M u r p h y v . E a s t B a y C l o t h i e r s , 892 So. 2 d 3 9 5 , 397 (Ala. C i v . App. 2004). '[T]he q u e s t i o n whether a judgment i s f i n a l is a jurisdictional question.' J o h n s o n v . J o h n s o n , 835 S o . 2 d 1 0 3 2 , 1034 (Ala. Civ. App. 2 0 0 2 ) . 'A f i n a l j u d g m e n t i s one t h a t disposes of a l l the claims and c o n t r o v e r s i e s between the parties.' H e a s t o n v . N a b o r s , 889 So. 2 d 5 8 8 , 590 ( A l a . C i v . App. 2 004)." D e c k e r v. D e c k e r , 984 In Decker, the So. 2d 1216, 1219 ( A l a . C i v . App. former husband f i l e d the p a r t i e s ' d i v o r c e judgment, seeking, 3 a petition among o t h e r to 2007). modify things, to 2100379 reduce or terminate former wife former comply w i t h to and t o pay held provide the court and on to of costs. obligation alleged contempt with trial reduce to the r u l e , h o w e v e r , on counterclaim seeking contempt his to alleged court dismissed the citing Heaston v. 2004), f o r the appeal former wife's the in former to as b e i n g proposition terminate 889 So. that pay on former his alimony counterclaim for policy. former 984 So. 2d at wife's held costs. 4 in This from a n o n f i n a l judgment, 2d 588 (Ala. Civ. that 1220. his The " i f , ... d u r i n g a p o s t d i v o r c e p r o c e e d i n g , t h e t r i a l court fails to rule on every pending contempt motion, i t s failure to do so does affect the finality of the judgment in the postdivorce proceeding because, in such circumstances, the f i l i n g of each contempt m o t i o n does not i n i t i a t e a s e p a r a t e and i n d e p e n d e n t proceeding." Decker, to policy the husband court the ordered contempt life-insurance failure Nabors, ruled t h a t p a r t of the have failure life-insurance husband the court d i d not for or former provide a The to have alleged judgment court t h a t p a r t of the hold failure wife obligation. seeking his divorce The to for the former petition sought counterclaimed, in provisions husband's that periodic-alimony a n s w e r e d and husband him his App. 2100379 On failure the authority to dispose of the order from which dismiss The this of Decker, trial court's the f a t h e r ' s contempt p e t i t i o n renders t h e mother has because appealed the n o n f i n a l , we must appeal. appellee's request f o r an attorney fee on appeal Thomas, Moore, is denied. APPEAL DISMISSED. Thompson, P.J., and Bryan, concur. 5 and JJ.,
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