Poore v. Poore
Decision Date | 08 March 2019 |
Docket Number | 2180088 |
Citation | 285 So.3d 852 |
Parties | Kenneth W. POORE v. Molly B. POORE |
Court | Alabama Court of Civil Appeals |
Lana K. Hawkins of The Hawkins Law Firm, Guntersville.
Submitted on appellant's brief only.
Kenneth W. Poore ("the father") appeals from a judgment entered by the Madison Circuit Court ("the trial court") dismissing his action seeking to terminate his child-support obligation to Molly B. Poore ("the mother"). We reverse the trial court's judgment.
On March 30, 2009, the parties were divorced by a judgment entered by the trial court in case no. DR-08-106. That judgment ordered the father to pay child support to the mother in the amount of $1,850 per month "until the [parties'] youngest child [reaches] the age of majority according to the State of Alabama...." The father's monthly child-support obligation was ordered to be paid through an income-withholding order.
On September 8, 2017, the father filed an "Affidavit for Termination of Withholding Order for Support" alleging, among other things, that all the children subject to the income-withholding order have or would reach the age of majority as of September 10, 2017, and that no arrearage was owed on the support order.
On September 25, 2017, the mother filed in case no. DR-08-106 a motion requesting a hearing and alleging that the father had not paid the child support as ordered in the divorce judgment.1
On April 9, 2018, the trial court entered a judgment stating:
On April 9, 2018, the father filed a motion asserting:
On April 10, 2018, the trial court entered an order stating:
On June 18, 2018, the trial court entered a judgment stating: On June 18, 2018, the father filed a motion to set aside the dismissal order, asserting:
On July 4, 2018, the father filed a renewed motion to set aside that was identical to the June 18, 2018, motion to set aside. The father's motion to set aside was denied by operation of law on September 17, 2018. See Rule 59.1, Ala. R. Civ. P.; and Rule 6, Ala. R. Civ. P. See also Richburg v. Cromwell, 428 So.2d 621, 622 (1983) ( ). On October 17, 2018, the father filed his notice of appeal.
On appeal, the father argues that the trial court erred in dismissing his action based on the father's failure to prosecute.
We first note that the trial court did not state in its June 18, 2018, judgment that it was dismissing the father's case "with prejudice."
Blake v. Stinson, 5 So.3d 615, 617 (Ala. Civ. App. 2008). We, thus, determine that the trial court's judgment dismissing the father's action for failure to prosecute is a dismissal with prejudice capable of supporting the father's appeal. See Double B Country Store, LLC v. Alabama Dep't of Transp., 171 So.3d 28, 30 n.1 (Ala. Civ. App. 2015) ( ).
Cartee v. Community Spirit Bank, 214 So.3d 362, 365-66 (Ala. Civ. App. 2015) ; see also Progressive Ins. Co. v. Brown, 195 So.3d 1007, 1010 (Ala. Civ. App. 2015) ...
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