In re Seibert

• Court: Alabama Supreme Court
• Writing for the Court: WISE, Justice.
• Citation: In re Seibert, 386 So.3d 781 (Ala. 2023)
• Docket Number: SC-2023-0234
• Decision Date: 02 June 2023
• Parties: EX PARTE Carl Michael SEIBERT (In re: Carl Michael Seibert v. Lorri Ann Fields)

386 So.3d 781

EX PARTE Carl Michael SEIBERT

(In re: Carl Michael Seibert

v.Lorri Ann Fields)

SC-2023-0234

Supreme Court of Alabama.

June 2, 2023

* Note from the reporter of decisions: Judge Williams, circuit judge, Cullman County, was appointed to preside over this case upon the recusal of the circuit judges in the 23rd Judicial Circuit.

Douglas H. Scofield of The Revill Law Firm, Birmingham, for petitioner.

Submitted on certiorari petition only.

WISE, Justice.

Carl Michael Seibert petitions this Court for a writ of certiorari to review the Court of Civil Appeals’ opinion dismissing his appeal from a judgment entered by the Madison Circuit Court in a postdivorce proceeding against his former wife, Lorri Ann Fields. Seibert v. Fields, 386 So.3d 776 (Ala. Civ. App. 2023). For the reasons set forth below, we deny the petition.

Facts and Procedural History

The following procedural history from the Court of Civil Appeals’ opinion will be helpful to an understanding of this case:

"The parties have previously appeared before this court. See Seibert v. Fields, 290 So. 3d 420 (Ala. Civ. App. 2019) (‘Seibert’); Ex parte Seibert, 231 So. 3d 1111 (Ala. Civ. App. 2017); Seibert v. Seibert, 217 So. 3d 843 (Ala. Civ. App. 2015) (table); Ex parte Seibert, 171 So. 3d 699 (Ala. Civ. App. 2013) (table); and Ex parte Seibert, 171 So. 3d 700 (Ala. Civ. App. 2013) (table). The parties were divorced by a judgment entered by the trial court in 2014, and, on September 13, 2017, the former wife [Fields] filed a verified complaint seeking to hold the former husband [Seibert] in contempt and for a rule nisi. Seibert, 290 So. 3d at 422. The former husband filed a counterclaim, requesting, among other things, that he be awarded sole physical custody of the parties’ children and that the former wife be ordered to pay child support. Id. On March 8, 2018, the trial court entered a judgment that, among other things, awarded the former husband sole physical custody of the parties’ children and ordered the former wife to pay to the former husband child support in the amount of $300 per month. Id. In Seibert, this court reversed the trial court’s judgment ‘to the extent that it determined the former wife’s child-support obligation,’ and we remanded the cause ‘for the trial court to recalculate the former wife’s childsupport obligation in accordance with Rule 32[, Ala. R. Jud. Admin.,] and this [court’s] opinion.’ 290 So. 3d at 427.

"Following this court’s reversal, the trial court conducted a trial at which testimony was presented and various exhibits were admitted into evidence. On May 6, 2022, the trial court entered a judgment in which, among other things, it determined that the former wife was in arrears in her child-support obligation in the amount of $5,196.93; ordered the former husband to pay fees and expenses to an expert witness in the amount of $2,000; ordered each party to pay his or her own attorney’s fees and costs; and denied all remaining requested relief.

"On June 3, 2022, the former husband filed a motion, pursuant to Rules 52 and 59, Ala. R. Civ. P., requesting, among other things, that the trial court amend its findings, make additional findings, or otherwise amend its judgment. The trial court entered an order on August 29, 2022, denying that postjudgment motion. The former husband filed his notice of appeal to this court on October 12, 2022.¹ On November 23, 2022, this court entered an order directing the parties to file letter briefs addressing whether the appeal had been timely filed. Both parties filed letter briefs in response to this court’s order; the former wife’s letter brief was accompanied by a motion to dismiss based on the former husband’s appeal having been untimely filed.

"__________

"¹The former husband filed a second motion pursuant to Rule 52, Ala. R Civ.P., on September 28, 2022, and the trial court entered an order purporting to deny that motion on September 29, 2022; we note, however, that motion did not extend the time for the former husband to file his notice of appeal. See, e.g., Golden Poultry, Inc. v. Mears, 719 So. 2d 838, 838 n.1 (Ala. Civ. App. 1998) (noting that a ‘second "motion for amended findings" ’ did not extend the time for appeal from the final judgment in that case)."

Seibert v. Fields, 386 So.3d at 777-78. The Court of Civil Appeals dismissed Seibert’s appeal on the basis that it was not timely. Seibert has petitioned this Court for a writ of certiorari.

Discussion

In its opinion, the Court of Civil Appeals stated:

"In her motion to dismiss, the former wife asserts that the former husband did not timely file his notice of appeal. See Golden Poultry, Inc. v. Mears, 719 So. 2d 838, 839 (Ala. Civ. App. 1998) (‘The timely filing of an appeal is a jurisdictional act, and an untimely appeal must be dismissed.’).

"The trial court entered a final judgment on May 6, 2022. On June 3, 2022, the former husband filed a timely postjudgment motion, pursuant to Rules 52 and 59, and, on August 29, 2022, the trial court entered an order denying that motion. In accordance with the Alabama Rules of Appellate Procedure, the former husband had 42 days from the entry of the August 29, 2022, postjudgment order to timely file a notice of appeal. See Rule 4(a)(1), Ala. R. App. P. (providing that a notice of appeal ‘shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from’); Rule 4(a)(3), Ala. R. App. P. (providing that the filing of a postjudgment motion pursuant to Rules 52 or 59 of the Alabama Rules of Civil Procedure suspends the running of the time for filing a notice of appeal). The 42nd day following the entry of the August 29, 2022, postjudgment order fell on October 10, 2022, which was a legal holiday, see Rule 6(a), Ala. R. Civ. P.; Rule 26(a), Ala. R. App. P.; therefore, the former husband had until October 11, 2022, to timely file a notice of appeal. See Rule 4, Ala. R. App. P.; Rule 26(a), Ala. R. App. P. (extending the last day of any period within the Alabama Rules of Appellate Procedure to the end of the next day when the last day of the period occurs on a legal holiday).

"In his letter brief to this court, the former husband admits that his notice of appeal was not filed in the trial court until October 12, 2022. He asserts, however, that his attorney experienced technical difficulties with the trial court’s electronic-filing system and was unable to file the notice of appeal in the trial court on October 11, 2022. The former husband further asserts that his attorney electronically filed the notice of appeal with this court on October 11, 2022, and he directs this court to the notice of appeal in this court’s case file, which bears a time stamp dated October 11, 2022, at 6:53 p.m.²

"The Alabama Rules of Appellate Procedure explicitly address the proper method of filing a notice of appeal to invoke the jurisdiction of this court. Rule 3(a)(1), Ala. R. App. P., provides:

" ‘In civil cases, an appeal permitted by law as of right shall be taken to an appellate court by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4[, Ala. R. App. P.] The appellant shall cause a sufficient number of additional copies of the notice of appeal to bemarked filed with the date of filing noted thereon and certified as a true copy by the clerk of the trial court for service on the persons and parties as provided by (d)(1) or (d)(3) of this rule. Appeals by permission from interlocutory orders shall be taken in the manner prescribed by Rule 5[, Ala. R. App. P.] The notice of appeal may be filed electronically with the trial court clerk through the trial court’s electronic-filing system. If the notice of appeal is filed electronically, the appellant is not required to provide the additional copies required by this rule.’

"(Emphasis added.)

"The requirement that the notice of appeal be filed with the clerk of the trial court is echoed in Rule 3(d)(1), Ala. R. App. P. (providing that, after the filing of the notice of appeal with the clerk of the trial court, it is the duty of the clerk of the trial court to then serve a copy of the notice of appeal on the clerk of the appropriate appellate court); the Committee Comments to Rule 3 (‘Failure of an appellant to take any step other than the timely filing of a notice of appeal with the clerk of the trial court does not affect the validity of the appeal ….’); the Court Comment to Amendments to Rule 3(a), (d), and (e) Effective October 1, 2019 (‘If the notice of appeal is filed electronically, under Rule 3(d)(3), the clerk of the trial court may serve the notice of appeal electronically on the appropriate appellate court ….’); and Rule 4(a)(1) (providing that the notice of appeal ‘shall be filed with the clerk of the trial court within 42 days’). Pursuant to the Alabama Rules of Appellate Procedure, in civil cases a notice of appeal must be timely filed in the trial court to invoke this court’s jurisdiction.

"In Crawford v. Kindred, 418 So. 2d 908, 909 (Ala. Civ. App. 1982), this court determined that a party did not properly appeal the judgment entered by a small-claims court by filing a notice of appeal directly with the clerk of this court, and, therefore, we dismissed the appeal. Since Crawford was decided, neither our supreme court nor our legislature has promulgated any provision authorizing a party to file a notice of appeal directly with the clerk of this court from a judgment entered in a domestic-relations case. Cf. Ala. Code 1975, § 16-24B-5 (requiring appeals in certain actions under the Teacher Accountability Act, Ala. Code 1975, § 16-24B-1 et seq., to be filed with the clerk of this court). Furthermore, neither the Alabama Rules of Appellate Procedure nor any provision of the Code of Alabama allows this court to treat a notice of appeal filed directly with the clerk of this court as having been filed with the clerk of the trial court. We also have not...