Venturi v. Venturi, 091616 ALCIV, 2150279

Docket Nº:2150279
Opinion Judge:THOMAS, Judge.
Party Name:Kevin Venturi v. Miranda Venturi
Judge Panel:Thompson, P.J., and Pittman and Moore, JJ., concur. DONALDSON, Judge, concurring specially.
Case Date:September 16, 2016
Court:Alabama Court of Civil Appeals
 
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Kevin Venturi

v.

Miranda Venturi

No. 2150279

Alabama Court of Civil Appeals

September 16, 2016

Appeal from Lauderdale Circuit Court (DR-15-86)

THOMAS, Judge.

In March 2015, Miranda Venturi ("the mother") filed a protection-from-abuse ("PFA") petition in the Lauderdale Circuit Court ("the trial court"). On May 13, 2015, the trial court entered a judgment in the PFA action. On June 11, 2015, Kevin Venturi ("the father") filed a postjudgment motion directed to the May 13, 2015, judgment. On July 28, 2015, the trial court entered the following order: "The Motion to Alter, Amend or Vacate filed by the [father] is granted in part. The issue of supervised visitation between the father ... and the minor child is set for a hearing on the 24th day of August, 2015, at 8:30 a.m." The trial court continued the hearing three times; the hearing was ultimately held on December 7, 2015. The trial court's December 7, 2015, order purporting to deny the relief requested in the father's postjudgment motion, entered after that hearing, indicates that the hearing was not an evidentiary hearing and states plainly that the trial court was considering the father's postjudgment motion.1 The father filed his notice of appeal on December 21, 2015. "Although neither party has questioned this court's appellate jurisdiction, a lack of appellate jurisdiction resulting from a party's failure to timely file a notice of appeal 'cannot be waived'; indeed, 'this court can raise the issue ex mero motu.' Carter v. Hilliard, 838 So.2d 1062, 1063 (Ala. Civ. App. 2002), and Moragne v. Moragne, 888 So.2d 1280, 1283 (Ala. Civ. App. 2004); see also Rule 2(a)(1), Ala. R. App. P. (stating that an appeal shall be dismissed if the notice of appeal is not timely filed to invoke the jurisdiction of the appellate court)."

Smith v. Smith, 4 So.3d 1178, 1180-81 (Ala. Civ. App. 2008).

We have held that an order that does nothing more than indicate that a trial court intends to hold a hearing on an issue raised in a postjudgment motion is not sufficient under Rule 59.1, Ala. R. Civ. P., to amount to a ruling on the motion and does not toll the running of the 90-day period to rule on the motion. Smith, 4 So.3d at 1181. The order entered on the postjudgment motion at issue in Smith read as follows: "'Motion for new trial filed by [the father] is hereby granted in part. Set for a hearing.'" Smith, 4 So.3d at 1180. We explained in Smith that, in order to toll the 90-day period for ruling on a postjudgment motion provided in Rule 59.1, a trial court's order must either grant or...

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