Opinion
CL-2022-1242
08-04-2023
Stacey Lynn KITCHENS v. William Bradford KITCHENS
Chip Cleveland of The Cleveland Firm, LLC, Prattville, for appellant, Melissa Isaak of Isaak Law Firm, Montgomery, for appellee.
Chip Cleveland of The Cleveland Firm, LLC, Prattville, for appellant,
Melissa Isaak of Isaak Law Firm, Montgomery, for appellee.
EDWARDS, Judge.
Stacey Lynn Kitchens ("the former wife") appeals from a judgment entered by the Montgomery Circuit Court ("the trial court") in favor of William Bradford Kitchens ("the former husband"). We dismiss the appeal because it was taken from a nonfinal judgment.
The parties were divorced pursuant to a judgment entered by the trial court in February 2010; the divorce judgment was based on a settlement agreement between the parties. In part, the divorce judgment required the former husband to pay the former wife $8,050 per month as periodic alimony, The former husband subsequently filed a petition for modification of his periodic-alimony obligation, and, on November 16, 2018, the trial court entered a judgment ("the November 2018 judgment") that, in part, reduced the former husband’s periodic-alimony obligation to $2,440 per month. The November 2018 judgment also addressed certain arrearages of the former husband and awarded the former wife $20,586.84 in attorney fees, the latter of which was to be paid in 24 installments of $857.79 per month beginning on January 1, 2019. The former husband apparently filed a postjudgment motion regarding the November 2018 judgment that was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.
On November 18, 2019, the former wife filed a petition for a rule nisi. In that petition, she alleged that the former husband had failed to pay her attorney fees as ordered by the trial court in the November 2018 judgment. She requested that the trial court enter an order holding the former husband in contempt and requiring him to pay the attorney fees that had been awarded to her, plus interest.
On December 9, 2019, the former husband filed an answer to the former wife’s contempt petition. He alleged that he had lost his job and had been unemployed for over one year. He also alleged that there had been certain procedural irregularities regarding the entry of the attorney-fee award. He apparently failed to appreciate the fact that his postjudgment motion had been denied by operation of law.
The trial court ordered the parties to mediate their dispute, but the mediation was unsuccessful. The former wife’s contempt petition was set for a final hearing to be held on June 15, 2021, but that hearing was continued. On July 6, 2021, the trial court entered an order rescheduling the final hearing for December 13, 2021. On August 19, 2021, the former husband filed an "Amended Motion to Modify Divorce Decree," although he had filed no earlier pleading or petition requesting a modification of the divorce judgment. The trial court apparently treated the former husband’s modification request as a permissive counterclaim ("the former husband’s modification counterclaim"). The former wife filed no objection to the timing of the former husband’s modification counterclaim, though she did object to his presentation of evidence on that issue at trial, In his modification counterclaim, the former husband alleged that his financial situation had changed since the entry of the November 2018 judgment, that he was being treated for depression, that the former wife was capable of working full time instead of part time, and that his periodic-alimony obligation should be terminated.
On December 2, 2021, the former wife filed an amended contempt petition, adding allegations that the former husband had ceased paying the full amount of his monthly periodic-alimony obligation and requesting that he be held in contempt for that as well as for his failure to pay his attorney-fee obligation under the November 2018 judgment. It was undisputed at trial that the former husband had reduced his monthly periodic-alimony payments to the wife beginning in September 2021. On December 9, 2021, the former husband filed an answer to the former wife’s amended contempt petition and a motion for sanctions. In the latter filing, the former husband requested that the former wife’s contempt action be dismissed for her alleged failure to respond to his discovery requests.
On December 13, 2021, the trial court received ore tenus evidence during a hearing conducted via Zoom, a videoconferenc- ing service. After the trial, the parties submitted posttrial briefs, and the former wife also submitted a document purporting to describe and list the various amounts that she claimed that she was owed by the former husband; that list did not include a claim for alimony arrearage before September 2021, but it did include a claim for $4,750.29 in interest on the November 2018 attorney-fee award of $20,586.84. The interest amount purportedly was based on a per diem rate of $4.25 from the entry of the November 2018 judgment through the date of the trial, which was 1,123 days; however, 1,123 multiplied by $4.25 is $4,772.75.
As noted above, the attorney-fee award in the November 2018 judgment was due to be paid in monthly installments. The former husband admitted that he had made no payments on that award.
On July 7, 2022, the trial court entered a judgment finding, in part, that the former husband had admitted that he had not paid the former wife’s attorney fees as ordered and that he had been making only partial payments toward his periodic-alimony obligation. The trial court further stated in the July 2022 judgment that the former husband had testified, among other things, that he had lost his job and was being treated for depression and that he had insufficient income to pay the attorney-fee and periodic-alimony obligations; some of those findings, however, appear to relate to the former husband’s testimony from earlier proceedings, not from the trial in the present case. The July 2022 judgment terminated the former husband’s periodic-alimony obligation as of August 2021 and ordered him to pay his past-due periodic-alimony obligation through August 2021 (i.e., the month in which he had filed his modification petition) within 30 days. However, there was no evidence presented regarding the amount of the former husband’s past-due periodic-alimony obligation as of August 2021. The July 2022 judgment also stated:
"3. That the [former] husband shall be responsible for paying the prior award of attorney’s fees on November 16, 2018, in the amount of $20,586.84, plus interest. Counsel for the [former] husband shall meet with counsel for the [former] wife to discuss arrangement for payment of attorney fees and interest within 21 days of the date of this order."
The July 2Q22 judgment did not, however, state what amount of interest the former husband owed on the attorney-fee award. The July 2022 judgment denied all other requested relief.
On August 5, 2022, the former wife filed a postjudgment motion alleging, in part, that the evidence did not support the determination that a material change in circumstances had occurred for purposes of modifying the former husband’s periodic-alimony obligation; that that matter should not have been considered by the trial court because the former husband had failed to invoke the trial court’s jurisdiction by paying a filing fee; that the former wife had been denied her "rights of due process and confrontation" because the former husband had appeared at trial by telephone without first seeking permission from the trial court; and that the former husband had failed to pay the attorney-fee award, with interest, within 21 days, as ordered by the trial court. The trial court set the former wife’s postjudgment motion for a hearing to be held on October 18, 2022, and noted that the period for the trial court to rule on the postjudgment motion would expire on November 3, 2022. See Rule 59.1, Ala. R. Civ. P.
At trial, the former wife objected to the former husband’s presentation of evidence regarding the modification of his periodic-alimony obligation because, according to her, he had filed no pleading seeking such relief.
The July 2022 judgment could not, and did not, modify the former husband’s obligation to pay the attorney fees awarded in the November 2018 judgment, plus interest. See George v Sims, 888 So. 2d 1224, 1227 (Ala. 2004) ("Generally, a trial court has no jurisdiction to modify or amend a final order more than 30 days after the judgment has been entered, except to correct clerical errors" or pursuant to Rule 59, Ala. R. Civ. P, or Rule 60(b), Ala. R, Civ. P.); Drey v Petersen, 266 So. 3d 1101, 1106 (Ala Civ App. 2018) (noting that a trial court has no authority to waive postjudgment interest).
On September 12, 2022, the former husband filed a response to the former wife’s postjudgment motion. On September 22, 2022, the trial court entered an order rescheduling the hearing on the former wife’s postjudgment motion for October 11, 2022.
On October 4, 2022, the former husband filed a motion to continue the hearing on the former wife’s postjudgment motion, No hearing was held on October 11, 2022, and the hearing on the former wife’s postjudgment motion was continued to November 3, 2022. On November 2, 2022, the former husband filed another motion to continue the hearing on the former wife’s postjudgment motion. Thereafter, the former wife filed a motion joining the former husband’s motion "to continue the current hearing date." On November 3, 2022, the trial court entered an order determining that the parties had agreed to an extension of the time for a hearing on the former wife’s postjudgment motion and extending the period to rule on the former wife’s postjudgment for a period of 90 days. See Rule 59.1, Ala. R. Civ. P. The trial court also stated that it would "reset" the matter in a separate order. A few hours later, the trial court entered an order scheduling a hearing on the former wife’s postjudgment motion for January 23, 2023.
On December 13, 2022, the former wife filed a notice of appeal to this court. This court entered an order holding the appeal in abeyance pursuant to Rule 4(a)(5), Ala. R. App. P. It does not appear that a hearing on the former wife’s postjudgment motion was held on January 23, 2023. However, on February 6, 2023, the former wife filed a motion with this court alleging that the trial court had not entered any order regarding her postjudgment motion and that that motion therefore had been denied by operation of law. See Rule 59.1, Ala. R. Civ. P. This court then entered an order informing the parties that our consideration of the former wife’s appeal would proceed.
On appeal, the former wife argues that the trial court lacked jurisdiction to terminate the former husband’s periodic-alimony obligation because, according to her, he had not filed a petition for modification or paid a filing fee; that even if the former husband had invoked the trial court’s jurisdiction, he had presented insufficient evidence of a material change of circumstances; that she had been prejudiced because of the former husband’s appearance at trial only by telephone; and that the trial court erred by not awarding her attorney fees regarding her contempt petition. We pretermit discussion of the issues raised by the former wife, however, because the trial court has not adequately addressed the amount of interest owed by the former husband in connection with his failure to pay the November 2018 attorney-fee award. Without a determination of that interest amount, the judgment is not final for purposes of appeal. See, e.g., Clay v. Clay, 255 So. 3d 238, 242 (Ala. Civ. App. 2017) (dismissing an appeal as having been taken from a nonfinal judgment because, "[w]ithout a calculation of the amount owed together with interest, the … judgment d[id] nothing more than restate the obligation … contained in the [earlier] judgment"). "We have no jurisdiction to review the nonfinal judgment and must, therefore, dismiss the appeal." Id.
APPEAL DISMISSED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.