Thomson v. Shepard

225 So. 3d 627, 2016 Ala. Civ. App. LEXIS 293, 2016 WL 7176563
CourtCourt of Civil Appeals of Alabama
DecidedDecember 9, 2016
Docket2150566
StatusPublished
Cited by1 cases

This text of 225 So. 3d 627 (Thomson v. Shepard) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomson v. Shepard, 225 So. 3d 627, 2016 Ala. Civ. App. LEXIS 293, 2016 WL 7176563 (Ala. Ct. App. 2016).

Opinions

THOMAS, Judge.

Keith Joel Thomson (“the husband”) appeals a judgment of the Jefferson Circuit Court (“the trial court”) that, among other things, awarded Karen Acton Shepard (“the wife”) alimony in gross and child support for the maintenance of the parties’ two sons (“the children”), born on May 30, 2004, and April 4, 2006, respectively. We affirm the trial court’s judgment.

Background

The parties were married in 2002. The wife filed a complaint in the trial court on April 30, 2014, seeking a divorce from the husband, custody of the children, child support, alimony, and a division of the marital property. The husband answered the wife’s complaint, and, after additional filings and orders, the wife filed a verified petition requesting that the trial court ap[630]*630point a guardian ad litem to: protect the interests of the children because, she averred, the husband had been inappropriately-involving them in the divorce litigation. The trial court thereafter entered an order appointing a guardian ad litem for the children and requiring each party to deposit with the circuit-court clerk a retainer of $750 for the guardian ad htem’s services. The trial court received evidence regarding, the wife’s complaint on several separate days, beginning in March 2015 and ending in October 2015. On December 1, 2015, the trial court entered an order requiring each party to pay the guardian ad litem $7,387.50 for her services. The parties thereafter submitted payment to the guardian ad litem, and the trial court granted the guardian ad litem’s motions to condemn those payments.

On January 5, 2016, the trial court entered a judgment divorcing the parties in which it, among other things, awarded the parties joint legal custody of the children, named the wife as the “primary” physical custodian, scheduled the parties’ custodial time, ordered the husband to pay the wife $1,500 per month for each child as child support, ordered the husband to maintain health insurance for the children, ordered the husband to pay $1,000 per month as periodic alimony, and divided the marital property. Each party filed postjudgment motions pursuant to Rule 59, Ala. R. Civ. P. In her postjudgment motion, the wife requested that the trial court alter or amend particular provisions of its judgment regarding the husband’s custodial time and the children’s health insurance, and, in his postjudgment motion, the husband requested that the trial court alter or amend particular provisions of its judgment regarding child support, his custodial time, and the division of a certain retirement account. The trial court set the parties’ postjudgment motions for a hearing to be conducted on February 8, 2016.

On February 22, 2016, the trial court entered an “amended final judgment of divorce” in which it altered, among other things, particular provisions, of its judgment regarding custody of the children, the parties’ responsibilities for the children’s medical expenses, and the husband’s periodic-alimony obligation, awarded the husband “full right and title to” his retirement accounts, awarded the husband his “individual or business- accounts” as separate property, and awarded the wife $100,000 as a “monetary property settlement.” On March 7, 2016, the -wife filed a “motion to amend and/or correct the amended final judgment of divorce pursuant to Rule 60(a)[, Ala. R. Civ. P.].” The husband thereafter filed an objection to the wife’s motion in which he argued that her motion had not'been limited to a request that the trial court correct clerical errors under Rule 60(a) and that her motion should have therefore been construed as an improperly filed successive Rule 59, Ala. R. Civ. P., motion.

That same' day, the husband also filed a postjudgment motion in which he requested, among'other things, that the trial court amend its February 22, 2016, order to award the parties joint legal and physical custody of the children and “clarify a certain provision regarding the children’s medical expenses. The husband also contended that the trial court’s award of child support in the amount of $1,500 per child and its award of $100,000 to the wife as a “monetary property settlement” were not supported by the evidence presented.

On March 28, 2016, thé trial court entered an orderin which it stated:

“THE COURT, ex mero mbtu, is of the opinion that the following Order shall be entered....
“1, That the Amended Final Judgment entered by this court on February [631]*63122, 2016 ... is hereby set aside and held for naught.
“2. That the Final Judgment entered by this court on January 5, 2016 ... is hereby reinstated.
“3. That the [wifej’s Motion to Amend And/Or Correct the Amended Final Judgment of Divorce Pursuant to Rule 60(a), the [husbandj’s Objection to Amend/And Or Correct the Amended Final Judgment of Divorce Pursuant to Rule 60(a), and [the husbandj’s Motion to Alter, Vacate or Amend the Amended Final Judgment of Divorce are Moot.”

That same day, the trial court also entered an order modifying the provisions of its January 5, 2016, judgment regarding custody of the children and child support and awarding the husband the full value of his retirement accounts and the wife $100,000 as alimony in gross. The trial court’s order further stated “[tjhat all other provisions of the Final Judgment [of] Divorce entered on January 5, 2016[,j shall remain in full force and effect.”

The husband filed a notice of appeal on April 4, 2016. On appeal, the husband argues that the trial court erred in various respects. However, as a threshold matter, we must first determine from which of the trial court’s orders the husband has appealed.

Analysis

In his appellate brief, the husband states:

“This is a procedurally unusual, indeed, almost confounding case. There was a final judgment of divorce followed by three post-judgment orders which in some manner altered the previous order. ... [The husband] believes the correct analysis is that the March 28 ex mero motu order is void and that the final judgment in this case is the February 22 Amended Judgment.”

In light of his concerns, the husband’s appellate brief addresses in alternative fashion what he contends are errors in both the trial court’s February; 22, 2016, order and its March 28, 2016, orderp. In her appellate brief, the wife responds: .

“The trial court was vested with the authority and jurisdiction to enter the Order of March 28, 2016[,j setting aside the Amended Judgment dated February 22, 2016[,j and reinstating the Final Judgment of Divorce dated January 5, 2016[,j as modified by a second March 28, 2016[,j Order. The Final Judgment dated January [6], 2016[,j as modified is the operative final judgment applicable to the parties and this appeal.”

We first note that the husband’s notice of appeal was timely filed on April 4, 2016, whether his appeal was taken from the trial court’s February 22, 2016, order or its final March 28, 2016, order and that he has therefore properly invoked this court’s subject-matter jurisdiction. See Rule 4, Ala. R. App. P.

We next consider whether, as the husband contends, the trial court’s March 28, 2016, orders were void and- whether his appeal was therefore taken from the trial court’s February 22, 2016, order.

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Bluebook (online)
225 So. 3d 627, 2016 Ala. Civ. App. LEXIS 293, 2016 WL 7176563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomson-v-shepard-alacivapp-2016.