Faellaci v. Faellaci

• Decision Date: 28 January 2011
• Docket Number: 2090675.
• Citation: 67 So.3d 923
• Parties: Julia W. FAELLACIv.Jared S. FAELLACI.
• Court: Alabama Court of Civil Appeals

67 So.3d 923

Julia W. FAELLACI

v.Jared S. FAELLACI.

2090675.

Court of Civil Appeals of Alabama.

Jan. 28, 2011.

Bryant F. Williams, Jr., Ozark, for appellant.Matthew C. Lamere, Dothan, for appellee.BRYAN, Judge.

Julia W. Faellaci (“the wife”) and Jared S. Faellaci (“the husband”) were married on July 22, 1995, and three children were born during the parties marriage: a boy, born in May 2000; and two girls, one born in September 2002 and the second born in April 2004 (collectively referred to hereinafter as “the children”). On May 8, 2006, the Houston Circuit Court (“the trial court”) entered a judgment of legal separation that incorporated a separation agreement that had been signed by the parties on or about April 10, 2006 (“the separation agreement”). Pursuant to the separation agreement, the wife exercised sole custody of the children, subject to the husband's visitation rights that were set forth in the separation agreement. The separation agreement also contained the following provision regarding the husband's child-support obligation:

“The parties agree that the [h]usband's income exceeds the Alabama Child Support Guidelines, and the [h]usband agrees to promptly pay child support for the minor children of the parties in the sum of $5,000.00 monthly. [The h]usband further agrees as additional child support, to pay 50% of the net after tax income of any commission or bonus in excess of his base salary and will supply the necessary W–2's or 1099's at the end of each year as proof of compliance with this provision.”

On February 28, 2008, the husband filed a petition to set aside the separation agreement and a complaint for a divorce. The wife filed a motion to dismiss the husband's petition to set aside the separation agreement, an answer to the husband's complaint for a divorce, and a petition for a rule nisi alleging that the husband had failed to fully comply with the terms of the separation agreement regarding his child-support obligation. The husband subsequently filed a motion to convert his petition to set aside the separation agreement to a petition for modification of the separation agreement. The husband alleged that a material change of circumstances existed to support modification of the separation agreement regarding child support, custody, and visitation. The husband requested joint custody of the children, expanded visitation rights, calculation of his child-support obligation pursuant to Rule 32, Ala. R. Jud. Admin., and a dissolution of the marriage.¹

Following a joint motion filed by the parties, the trial court entered a judgment divorcing the parties and reserving jurisdiction to enter a final judgment resolving the issues that remained pending before the trial court. The trial court further ordered that the judgment of legal separation and the provisions of the separation agreement remained valid until a final judgment was entered.

Following an ore tenus hearing, the trial court entered a judgment on November 10, 2009, that awarded the parties joint legal custody of the children, awarded the wife primary physical custody of the children, and awarded the husband specific visitation rights. The trial court further ordered the husband to pay child support in the amount of $4,000 a month, and it ordered the husband to pay the wife his child-support arrearage, which was determined to be $100,000. Pursuant to the trial court's judgment, all other provisions of the separation agreement remained in “full force and effect.”

The wife filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., alleging, among other things, that the trial court had exceeded its discretion by failing to award her interest on the husband's child-support arrearage. The trial court conducted a hearing on the wife's postjudgment motion on January 5, 2010. On January 6, 2010, the trial court entered an order that stated: “After hearing, [the wife]'s motion for a new trial is denied, except interest calculations and the two issues [regarding visitation] upon which the parties have agreed. Attorneys shall submit [an] amended decree within 14 days.” The husband subsequently filed a “response to request for interest on arrearage,” arguing that the he does not owe interest on his child-support arrearage because, based on the child-support language in the separation agreement, there was no ascertainable due date for his child-support obligation. The trial court conducted a hearing on the husband's motion on February 25, 2010, but the record does not contain any further orders entered by the trial court. The wife filed a notice of appeal on April 16, 2010.

The wife raises several issues for this court to review on appeal; however, we must first determine whether this court has jurisdiction to hear the wife's appeal. See Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987) (stating that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu ”). When a judgment fails to completely adjudicate all issues between the parties, the judgment is nonfinal. Giardina v. Giardina, 39 So.3d 204, 207 (Ala.Civ.App.2009). Ordinarily, an appeal will lie only from a final judgment. Id.

This court has consistently held that a trial court's failure to rule on contempt petitions filed in a divorce action render the divorce judgment nonfinal. See Brunson v. Brunson, 991 So.2d 723, 724–25 (Ala.Civ.App.2007). However, before making a determination regarding the finality of a judgment that does not explicitly address a pending contempt petition, this court will consider whether any part of the trial court's judgment implicitly rules on the pending contempt petition that was not explicitly ruled on in the judgment. Id. (quoting Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004)); see also A.C. v. C.C., 34 So.3d 1281, 1287 (Ala.Civ.App.2009) (dismissing an appeal as being from a nonfinal judgment when several pending contempt motions were left unadjudicated and there was nothing in the trial court's purported final judgment that “constitute[d] an implicit ruling on any of the contempt motions”).

At the conclusion of the ore tenus hearing in this case, the trial court issued its judgment from the bench and ordered the parties' attorneys to draw up an order reflecting its ruling. During that discussion, the wife's attorney stated that the trial court had not ruled on the wife's pending petition for a rule nisi, and he pointed out that the trial court's failure to do so would render the judgment nonfinal. The trial-court judge responded that his award of a child-support arrearage to the wife was intended as a ruling on her petition for a rule nisi. See Frasemer v. Frasemer, 578 So.2d 1346, 1349 (Ala.Civ.App.1991) (child-support arrearage must be awarded even if payor's behavior was not contemptuous). We conclude that such an expression, followed by an order that did not specifically hold the husband in contempt, satisfies this court, in these particular circumstances, that the trial court implicitly concluded that the husband's behavior did not rise to the level of contempt in this case. Although an explicit ruling on pending contempt petitions is always more desirable, we find that the trial court's judgment sufficiently indicates an intention to conclusively rule on the wife's pending petition for a rule nisi. See Horwitz v. Horwitz, 897 So.2d 337, 344 (Ala.Civ.App.2004) (failure to explicitly rule on a pending contempt petition on one count did not affect finality of the judgment because the finding of contempt on a second count was sufficient to indicate an implicit denial of a finding of contempt on the first count). Accordingly, we conclude that the judgment entered on November 10, 2009, was a final judgment.

However, we must now determine whether the trial court's postjudgment order granting the wife's postjudgment motion in part without entering an order effectuating the relief granted affects this court's jurisdiction to hear the wife's appeal. In her brief on appeal, the wife argues that her appeal is properly before this court, despite the fact that the trial court granted her postjudgment motion in part, because its failure to enter an order actually modifying any part of the divorce judgment rendered her postjudgment motion denied by operation of law on the 90th day after she filed her postjudgment motion. See Rule 59.1, Ala. R. Civ. P. (“A failure by the trial court to render an order disposing of any pending postjudgment motion within [90 days] ... shall constitute a denial of such motion as of the date of the expiration of the period.”). We disagree. Rule 59.1 is applicable only when the trial court fails “to render an order disposing of any pending postjudgment motion within [90 days]....” The record indicates that the trial court disposed of the wife's postjudgment motion by granting her postjudgment request for an award of interest on the husband's child-support...