Burgess v. Burgess
2012 Ala. Civ. App. LEXIS 174
Ala. Civ. App.2012Background
- Wife filed for divorce in 2010; marriage began in 1981; children reached majority before final hearing.
- July 2011 settlement divided marital property; divorce judgment issued July 29, 2011 incorporating settlement.
- Judgment awarded wife residence and rental properties, husband remaining real property, and autos.
- August 11, 2011 husband filed postjudgment Rule 59(e) motion; August 30, 2011 wife filed untimely postjudgment motion.
- October 24, 2011 amended final judgment denied husband’s motion and granted wife relief; portions were later deemed void for lack of jurisdiction.
- November 14, 2011 husband sought reconsideration; December 20, 2011 denial; January 12, 2012 notice of appeal filed; this court dismisses portions for lack of jurisdiction and untimeliness, with instructions to vacate void parts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is timely and court has jurisdiction | Husband argues timely postjudgment motion extended appeal deadline | Wife asserts her motion was untimely and lacked jurisdiction | Appeal limited; untimely postjudgment motion by wife voids pertinent relief; some issues dismissed for lack of jurisdiction. |
| Whether the October 24, 2011 order improperly granted new relief | Husband contends order complied with pending motion | Wife sought relief beyond the scope of timely motion | Void portions granting new relief cannot support appeal; must be vacated. |
| Whether void portions of the order can be reviewed on appeal | N/A | Void segments cannot support appellate review | Void portions dismissed; appeal otherwise limited to timely, proper rulings. |
Key Cases Cited
- Henderson v. Koveleski, 717 So.2d 803 (Ala.Civ.App.1998) (allows correction of judgment during pendency of Rule 59(e) motion when relief is contemplated)
- Marsh v. Marsh, 852 So.2d 161 (Ala.Civ.App.2002) (timeliness of postjudgment motions governs jurisdiction to amend)
- Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649 (Ala.1998) (review of denial of own postjudgment motion follows appeal)
- Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997) (jurisdictional matters can be raised sua sponte)
- J.D.R. v. Etowah Cnty. Dep’t of Human Res., 86 So.3d 391 (Ala.Civ.App.2011) (void portions cannot support appeal)