Barbara Jean Patterson v. Raymond Lindsey Patterson

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REL: 04/15/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l 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 R e p o r t e r o f D e c i s i o n s , A l a b a m a 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, 2010-2011 2100018 Barbara Jean P a t t e r s o n v. Raymond Lindsey P a t t e r s o n Appeal from S t . C l a i r C i r c u i t Court (DR-09-12.01) THOMPSON, P r e s i d i n g J u d g e . On May 3 o r May 4, 2 0 1 0 , t h e S t . C l a i r entered wife") June a judgment from 1, "Petition Raymond Court d i v o r c i n g Barbara Jean Lindsey ("the h u s b a n d " ) . 2010, t h e wife to Modify Circuit Patterson filed Decree." a motion I n her motion, P a t t e r s o n ("the that she she argued, On titled among 2100018 other t h i n g s , t h a t the t r i a l to her, income her; should to she have her, served the of the a to case presided over the 1, new a judge the change in that justified a A other certificate that court i t had clerk the circuit clerk to the w i f e ' s motion. had He than been assigned the judge and who had over the action. who assigned ordered of (DR-09-12000.01) had presided p a r t i e s ' d i v o r c e a c t i o n e n t e r e d an o r d e r i n w h i c h he that to a number judge fee been The p a r t i e s ' divorce 2010, attorney's indicated father. case retirement had judgment. motion f o r the an alimony month preceding divorce filing the July the to assigned On there the counsel wife's that husband's awarded contend attached on the have over modification of should not circumstances service awarded h a l f and did c o u r t s h o u l d have awarded an the incorrect indicated case number c l e r k to a s s i g n a ".01" d e s i g n a t i o n t o t h e o r i g i n a l d i v o r c e a c t i o n ( c a s e number DR-0912) and that set the to t r a n s f e r h u s b a n d be the w i f e ' s m o t i o n t o him. served with of August 23, the motion for a hearing On t h e day s e t f o r t h e h e a r i n g on filed an answer i n which, on a copy among o t h e r 2 He the also motion, ordered and he 2010. the motion, t h i n g s , he the husband argued that 2100018 there had warrant On favor b e e n no m a t e r i a l change i n c i r c u m s t a n c e s a modification A u g u s t 26, of on the of 2010, husband the the that divorce trial "1. These p a r t i e s were May 3, 2010. would judgment. court provided, that entered a judgment i n in pertinent divorced after part: a trial "2. The r e l i e f s o u g h t i n [ t h e w i f e ] ' s p e t i t i o n to modify a l l address items contained i n the May 2010 divorce decree. From t h a t d i v o r c e decree no m o t i o n t o a l t e r , amend o r v a c a t e n o r was a n y a p p e a l taken [sic]. "3. T h e r e f o r e , the [ w i f e ] ' s p e t i t i o n to modify f i l e d l e s s t h a n one m o n t h f o l l o w i n g t h e f i n a l order is dismissed as i t alleges no change in circumstances s u c h as w e r e n o t p r e s e n t a t t h e t i m e of the o r i g i n a l d i v o r c e . " The wife a timely appeal. appeal, the argues treating her motion judgment rather On filed that judgment. for the the as than She as styling to modify" motion and t h a t the w i f e ' s the to that and/or to she to 2010, alter, the m o t i o n was court modify "should contained 3 trial alter, mistake that, given arguments J u n e 1, the a motion a motion and that petition a argues inadvertence wrongfully petition wife of erred the in divorce amend, or not penalized be her amend, attorney or time of vacate the in as filing t h e r e i n , i t was intended vacate t o be a of clear a Rule 2100018 5 9 ( e ) , A l a . R. divorce C i v . P., motion pleadings and substance rather 2009) v. Civil Publix i s to 915 Super 2007) a titles. See 35 than Brasfield 3d 557, 562-63 Inc., 963 amend, of that look at the how Alabama 5 9 ( e ) , A l a . R. was S t a t e Farm Mut. 2d i t s judgment d i d not allege a change d i v o r c e as w o u l d to modify a to C i v . P., vacate petition Rules 654 , 659 serve divorce 4 parte (Ala. Civ. of a as a motion the t r i a l divorcing the i n circumstances judgment, see i t is motion request, that have been n e c e s s a r y of Auto. Ex o f t h e w i f e ' s J u n e 1, 2 0 1 0 , motion (Ala. In the p r e s e n t case, or of the Gorrie, 604 (Ala. 2005))); So. their to determine i t s title, the to & 601 , Court w i l l c o n s i d e r e d under 2d according So. that ' [ t ] h i s from the substance to Rule wife treated i t s character."). pursuant entry the that a party's ( " [ I ] t i s the substance, not the t i t l e , intent The be ( q u o t i n g P o n t i u s v. Markets, the alter, their rather be So. that determines apparent should settled of a motion Co., to the p r o p o s i t i o n P a r t n e r s , L.L.C., Procedure.'" Ins. that than ("It i s w e l l motion App. motions Soho substance that amend, o r v a c a t e judgment. This c o u r t i s committed L.L.C. to a l t e r , court parties. since to the support Thompson v. 2100018 Thompson, she 650 S o . 2 d 9 2 8 , 930 s t a t e d grounds that would ( A l a . C i v . App. 1994); support r e l i e f under by a s s e r t i n g t h a t t h e d i v o r c e judgment i t s e l f decided. filed Furthermore, the motion divorce trial motion Thus, we less court reverse 30 days C i v . P., judgment. improperly motion, to either wife's than after wrongly the wife the entry of the trial a n d we than For purposes Rule 59(e) motion cause. appellate We court's remand as one f i l e d denial court June the Pittman, to modify 59.1, A l a . R. the divorce C i v . P., t h e of Thomas, the mother's and Moore, 5 on of judgment i n t h i s remaining REMANDED. Bryan, motion, pursuant to Rule 59(e), A l a . contentions. R E V E R S E D AND trial s h a l l be d e e m e d t o h a v e b e e n f i l e d discussion 1, wife's to the postjudgment issues i t s c e r t i f i c a t e pretermit of the cause as a p e t i t i o n of Rule the wife's rather than i t s substance. g r a n t o r deny t h e w i f e ' s rather the date t h i s treated to i t s t i t l e the t r e a t i n g that motion R. had been i n accordance with Rule 59(e), according postjudgment court Rule 59(e) judgment. The 2010, instead, J J . , concur.

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