Kyles v. Kyles
| Decision Date | 29 January 2016 |
| Docket Number | 2140449. |
| Citation | 202 So.3d 684 |
| Parties | Patricia KYLES v. Gregory Bernard KYLES. |
| Court | Alabama Court of Civil Appeals |
Vanessa Arnold Shoots, Mobile, for appellant.
Charles H. Jones, Jr., Mobile, for appellee.
THOMAS
, Judge.
Patricia Kyles (“the wife”) appeals from a judgment of the Mobile Circuit Court (“the trial court”) divorcing her and Gregory Bernard Kyles (“the husband”) and, among other things, awarding her monthly alimony; the wife asserts that the amount of monthly alimony awarded to her is insufficient.
We first address the unusual procedural posture of this case. On June 4, 2012, the husband filed a complaint in the trial court seeking a divorce; the wife filed an answer and a counterclaim for a divorce on February 26, 2013.1 A trial was held on February 27, 2013, at which the trial court heard evidence ore tenus. The trial court entered an order on April 8, 2013, divorcing the parties and awarding the wife $250 in monthly alimony. The trial court awarded the husband several items of personal property; however, the trial court's order also stated:
The wife filed a motion seeking reconsideration of the order on May 3, 2013. After a hearing, the trial court entered an order on June 21, 2013, granting the portion of the wife's motion seeking medical benefits through the husband insofar as she was qualified to receive such medical benefits; the remaining relief requested in the wife's motion was denied.
On August 2, 2013, the wife filed a notice of appeal to this court; however, this court dismissed the appeal on February 3, 2014, for lack of prosecution due to the wife's failure to file an appellate brief. The wife subsequently filed in the trial court, on February 13, 2014, a motion to enter a final judgment of divorce. In the motion, the wife stated that the husband had failed to submit the lists of personal property as ordered by the April 8, 2013, order and that, therefore, the April 8 order did not resolve all the issues between the parties, rendering the April 8 order nonfinal. On January 12, 2015, the wife filed a “notice to the court” stating that the husband had provided the two lists of personal property and that the wife had selected one of the lists. The trial court entered an order on January 28, 2015, awarding the wife the personal property on her selected list and awarding the husband the personal property on the other list. The wife filed a second notice of appeal to this court on March 5, 2015.
At the outset, we must determine whether the April 8, 2013, order was a final judgment; if so, the wife's notice of appeal filed on March 5, 2015, was clearly filed outside the 42–day time period in which to appeal, as prescribed by Rule 4, Ala. R.App. P
.
“ ‘ ’ ” Pace v. Utilities Bd. of Foley, 752 So.2d 510, 511 (Ala.Civ.App.1999)
(quoting Singleton v. Graham, 716 So.2d 224, 225 (Ala.Civ.App.1998) ). We also note that an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived. Luker v. Carrell, 25 So.3d 1148, 1151 (Ala.Civ.App.2006). Additionally, “[t]he question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006).'
“Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006).
“ ‘This court has consistently held that trial-court orders instructing the parties to prepare lists in order to effectuate a property division are nonfinal until a division of the property actually occurs.’ Sims v. Sims, 38 So.3d 71, 72 (Ala.Civ.App.2009). See also
McGill v. McGill, 888 So.2d 502, 505 (Ala.Civ.App.2004), and Grubbs v. Grubbs, 729 So.2d 346, 347 (Ala.Civ.App.1998).”
Yarbrough v. Yarbrough, 142 So.3d 637, 639 (Ala.Civ.App.2013)
.
The husband argues in his appellate brief that the section of the trial court's April 8, 2013, order instructing him to prepare lists of personal property included a “catch-all” provision that, in the event the husband failed to submit the lists of personal property to wife within 14 days, awarded all of the parties' personal property to the wife. However, the trial court's April 8 order clearly stated that any property omitted from the lists prepared by the husband would be awarded to the wife. The husband failed to comply with the instruction to prepare the lists; we disagree that the trial court's instruction regarding personal property omitted from a prepared list was tantamount to an order automatically dispersing all of the parties' personal property to the wife should the husband fail to comply within the ordered 14 days. This conclusion is further bolstered by the trial court's January 28, 2015, order awarding each party the personal property on his or her chosen list. We, therefore, conclude that the trial court's April 8 order was not a final judgment and was incapable of supporting an appeal. Because “[t]here must be some final disposition of the personal property by the trial court before its judgment is final,” Sims v. Sims, 38 So.3d 71, 72 (Ala.Civ.App.2009)
(), the trial court's judgment divorcing the parties was not final until the trial court entered the January 28, 2015, order dividing the parties' personal property. Thus, the wife's notice of appeal filed on March 5, 2015, was timely.
The record indicates that the parties were married for approximately 25 years; the children born of the marriage had reached the age of majority before this action commenced. At the trial, the husband testified that he had been retired from the United States military for about eight or nine years and that he had worked for the Alabama State Docks since December 2005. Evidence was presented to the trial court indicating that the husband received $1,700 a month in military-retirement benefits, which included veteran's disability benefits. The husband also testified that he “takes home” $1,150 semi-monthly from his employment with the State Docks. According to the husband, the parties own property in North Carolina (“the North Carolina property”) that is worth approximately $55,000 to $60,000. However, he further testified that that property was used to secure a home-equity line of credit (“the HELOC”), that the HELOC had a balance of about $20,000, and that he paid about $175 to $180 per month toward that balance. The husband also testified that the parties lived in a mobile home that was located on property that, according to him, was given to him by his parents (“the Mobile property”). It was undisputed that the deed to the Mobile property included only the husband's name and that the names of both parties appeared on the deed to the North Carolina property. Although the husband did not testify regarding the value of the Mobile property, he estimated that the mobile home was subject to indebtedness in the amount of $85,000.
The wife testified that the parties had moved multiple times throughout the marriage due to the husband's military career, that she had worked only “off and on,” and that, as a result, according to her, she had never accrued retirement funds in her name. She further testified that she had rarely earned more than minimum wage and that her most recent employment in Mobile had been as a mental-health worker earning minimum wage. However, she also testified that she had not worked since having surgery in May 2012; the wife admitted that, although she suffered from arthritis
in her back and knees, she was able to work. The wife did not estimate the value of the North Carolina property; however, she testified that, in her opinion, the house located on the property had fallen into such disrepair that it should be condemned, which the husband disputed. The wife also disputed that the Mobile property had been a gift to the husband from his parents, and she stated that they had purchased the property from the husband's parents.
At the trial, the wife testified that she needed $1,200 to $1,300 a month to pay her rent and her expenses for utilities and to obtain a vehicle. The parties testified that the husband had a Ford F150 truck (“the truck”) in his possession; the husband testified that there was no indebtedness associated with the truck. The parties also testified that the vehicle that the wife had driven had been repossessed because the wife had failed to make the monthly payments on that vehicle.
The divorce judgment awarded the husband the Mobile property, the truck, guns and ammunition, hunting and fishing equipment, and a boat and boat trailer. The wife was awarded the North Carolina property and $250 in monthly periodic alimony. The parties' remaining personal property was divided between the parties according to the lists that the husband was instructed to prepare pursuant to the divorce judgment. The divorce judgment also stated that each party was responsible for any debts in his or her name and that each was awarded any pension or retirement fund in his or her name, although the parties acknowledge that the wife has no pension or retirement fund in her name.
The wife's sole argument on appeal is that the award of $250 in monthly...
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...and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.").In Kyles v. Kyles, 202 So. 3d 684 (Ala. Civ. App. 2016), the wife in that case filed an appeal of an April 8, 2013, divorce order, but this court dismissed her appeal for want of pr......