PICKENS v. PICKENS (2022)

Johnny R. Pickens (“the father”) appeals from a judgment of the Lauderdale Circuit Court denying his petition to hold Angela S. Pickens (“the mother”) in contempt for allegedly failing to abide by the postminority-support provisions of the parties' settlement agreement that was incorporated into a 2007 judgment divorcing the parties. For the reasons set forth herein, we dismiss the appeal as untimely.

The circuit court divorced the parties in 2007 by entering a judgment incorporating the parties' settlement agreement. Among other things, the settlement agreement provided that the parties would equally divide the cost of providing four years of undergraduate education to each of the parties' three children. On December 15, 2016, the father filed a petition to hold the mother in contempt for failing to reimburse him for one-half “of the incurred expenses,” presumably for the children's postminority education, in violation of the divorce judgment. The mother filed an answer in which she denied the allegations of the petition.

After a number of continuances and other delays, the mother filed an amended answer on May 22, 2020, in which she asserted the affirmative defenses of res judicata and laches. That same day, she filed a motion for a summary judgment. She asserted in her motion that the father's claim relating to postminority educational expenses of one of the parties' children was barred by the doctrine of accord and satisfaction because, she said, she had made payments for tuition as to that child. She asserted that the claim relating to postminority educational expenses of the parties' other two children was barred by the doctrines of res judicata and laches because, she said, that claim had already been adjudicated in a prior action between the parties.

The father filed an opposition to, and motion to strike, the mother's motion for a summary judgment. He argued that the mother's motion was improper because the parties had agreed to submit the case to the circuit court on briefs and stipulated facts. He requested that the matter be set for an evidentiary hearing. The father also filed a motion to strike the mother's amended answer in which he asserted that the mother improperly had failed to seek leave of the circuit court to amend her answer and that the amendment prejudiced him and would cause undue delay.

On August 10, 2020, the circuit court granted the mother's motion and entered a summary judgment in her favor. On August 31, 2020, the father filed a motion to alter, amend, or vacate the judgment. He asserted that the mother's arguments in her summary-judgment motion were inaccurate, that the motion lacked a narrative summary, that the mother did not authenticate the exhibits attached to her motion, and that the circuit court did not provide ten days' notice and did not hold a hearing on the motion before entering the summary judgment.

On September 11, 2020, the father moved the circuit court to set the case for an evidentiary hearing. The circuit court set a hearing for November 13, 2020. Subsequently, the circuit court continued the hearing. On November 30, 2020, the father's motion to alter, amend, or vacate the judgment was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.¹

In January 2021, the father filed a motion that he styled as a “renewed request for evidentiary and/or final hearing.” The circuit court purported to grant that motion and set the case for a “final hearing” on May 24, 2021. After further continuances and delays, the circuit court held that hearing on August 5, 2021, and provided the parties with additional time with in which to submit supporting legal authority.

On August 31, 2021, the circuit court entered an order in which it purported to deny the father's contempt petition on the ground that actions to enforce postminority support are “void and unenforceable” in the wake of our supreme court's overruling of Ex parte Bayliss, 550 So. 2d 986 (Ala. 1989), in Ex parte Christopher, 145 So. 3d 60 (Ala. 2013). The father filed a motion to reconsider, which the circuit court purported to deny on September 7, 2021. The father filed his notice of appeal on October 4, 2021.

On appeal, the father asserts that the circuit court erred when it purported to enter a judgment against him on his contempt petition on the basis that the provision in the parties' settlement agreement regarding postminority support, which was incorporated into the 2007 divorce judgment, is no longer enforceable based on our supreme court's decision in Ex parte Christopher, supra. We cannot reach that issue, however, because we lack jurisdiction.

As previously noted, the circuit court entered a summary judgment disposing of the father's contempt petition on August 10, 2020. The father filed a timely postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., which was denied by operation of law on November 30, 2020. From that point, the father had forty-two days in which to file his notice of appeal. See Rule 4(a)(1) and (3), Ala. R. App. P. He did not do so; instead, the parties attempted to continue to litigate the action as though the circuit court had not entered a final judgment by virtue of its entry of the summary judgment. Ultimately, the father filed a notice of appeal on October 4, 2021, long after it had been due to be filed and which, as a result, was untimely.

“The timely filing of the notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So. 2d 964, 965 (Ala. Civ. App. 1985). “Failure to appeal within the prescribed time is fatal and requires that the appeal be dismissed ex mero motu.” Id. Because the father's notice of appeal was untimely, this court lacks jurisdiction over the father's appeal. As a result, we dismiss the appeal.

APPEAL DISMISSED.

FOOTNOTES

1.   The 90th day following the father's filing of his motion to alter, amend, or vacate the judgment was November 29, 2020, which was a Sunday. Thus, the judgment was denied by operation of law on the next day. See Rule 6(a), Ala. R. Civ. P.; Williamson v. Fourth Ave. Supermarket, Inc., 12 So. 3d 1200, 1203-04 (Ala. 2009).

FRIDY, Judge.

Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.