Rollins v. Rollins

• Decision Date: 30 December 2004
• Citation: 903 So.2d 828
• Parties: Kristy Larkin ROLLINS v. William Ernest ROLLINS.
• Court: Alabama Court of Civil Appeals

903 So.2d 828

Kristy Larkin ROLLINS v. William Ernest ROLLINS.

2030118.

Court of Civil Appeals of Alabama.

December 30, 2004.

Paul A. Young, Jr., Enterprise; and Laura A. Wyrosdick, Enterprise, for appellant.

Letitia L. Myers, Enterprise, for appellee.

MURDOCK, Judge.

Kristy Larkin Rollins ("the mother") and William Ernest Rollins ("the father") were divorced by a judgment entered by the Coffee Circuit Court on December 30, 2002. The father subsequently filed a petition for a rule nisi to collect child support ordered to be paid by the mother. The mother filed a motion for relief from the divorce judgment on the ground that it was void; the trial court denied that motion. The trial court thereafter entered a judgment in favor of the father on his petition for a rule nisi. Asserting the same grounds as were asserted in her motion for relief, the mother now appeals from the judgment of the trial court granting the father's petition for a rule nisi. We affirm.

The history of this case is as follows: The father filed an action seeking a divorce on April 27, 2000, together with a motion for pendente lite custody of the parties' child. The father was granted pendente lite custody of the child, who was then three years old. The divorce trial began on July 24, 2000, before Judge Gary L. McAliley, and it was continued until September 2000. At the completion of the trial, Judge McAliley took the case "under advisement," but he allowed the father to retain pendente lite custody of the child.

For reasons not apparent from the record, Judge McAliley did not render a judgment for more than two years. In February 2002, the mother filed a motion requesting the issuance of a divorce judgment. In June 2002, the mother filed a "motion for custody pending final decree." On June 5, 2002, the latter motion was denied by an order that also stated that the court expected to enter a final judgment within 20 days.

A judgment of divorce was signed by Judge McAliley on Saturday, December 21, 2002. That judgment was not entered by the clerk until December 30, 2002. The judgment divorced the parties, divided the marital property, granted custody of the parties' minor child to the father, and ordered the mother to pay child support.

On Monday, December 23, 2002, Judge McAliley was sworn into office as District Attorney of the Twelfth Judicial Circuit. The record contains a copy of Gary McAliley's oath of office as district attorney, which bears that date and which was filed in the office of the judge of probate on that date. There is a suggestion in the record that Judge McAliley resigned effective December 22, 2002, but there is no evidence to this effect.¹ At the latest, however, Judge McAliley ceased to be a circuit judge when he took office as district attorney. See State ex rel. Van Antwerp v. Hogan, 283 Ala. 445, 453, 218 So.2d 258, 265-66 (1969). On December 30, 2002, at which point Judge McAliley no longer held office as a circuit judge, the judgment was filed in the office of the circuit clerk of Coffee County.

The mother did not file any post-judgment motions in response to the entry of the divorce judgment, and she did not appeal from the judgment.

On April 7, 2003, the father filed a petition for a rule nisi, seeking to collect child support ordered to be paid by the mother. On September 17, 2003, a hearing was held before Judge Thomas E. Head III concerning the father's petition for a rule nisi. The trial court heard oral testimony from the father and received documentary evidence concerning the amount of unpaid child support. The mother was not present at the hearing, but her attorney presented documentary evidence relating to child support.

The mother's attorney also filed, in open court, a motion for relief from the divorce judgment.² The substance of this motion was that the judgment was void because Gary McAliley was no longer a circuit judge when the judgment was entered. Attached to the mother's motion were copies of the judgment, the pleadings and orders in the original divorce action, and Judge McAliley's oath of office as district attorney. Except for the copies of the oath of office and the judgment itself, no evidence was presented concerning Judge McAliley's resignation as a circuit judge or the circumstances attendant to the gap in time between Judge McAliley's signing the judgment on December 21 and its entry on December 30.³ In particular, other than the facts that the judgment was signed on December 21 and that it was entered on December 30, the record contains no evidence as to whether or when Judge McAliley may have authorized the entry of the judgment or its delivery to the clerk for entry.

At the September 17, 2003, hearing, Judge Head denied the mother's motion for relief from the divorce judgment; following the hearing, Judge Head entered a judgment granting the father's petition for a rule nisi. In so doing, Judge Head found the December 21, 2002, divorce judgment to have been validly entered. Although the court determined that the mother was not in contempt of court for her failure to fulfill her child-support obligation, it awarded the father a judgment for a child-support arrearage in the amount of $1,304.56, plus interest and costs.

As noted, the mother has appealed from Judge Head's September 17, 2003, judgment. She contests Judge Head's ruling on her motion for relief from the divorce judgment, contending that the divorce judgment was not validly entered on December 30, 2002.

"`The standard of review on appeal from the denial of relief under Rule 60(b)(4) [Ala. R. Civ. P.] is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.'"

Ex parte Third Generation, Inc., 855 So.2d 489, 491-92 (Ala.2003)(quoting Satterfield v. Winston Indus., Inc., 553 So.2d 61, 64 (Ala.1989)) (emphasis omitted).

The issue presented is the effect of Judge McAliley's leaving office before the entry on December 30, 2002, of the divorce judgment. To determine the validity of that judgment, we must consider the process of rendering and entering judgments under Rule 58, Ala. R. Civ. P.

Rule 58 provides, in part:

"(a) Rendition of Judgments and Orders. A judge may render an order or judgment: (1) by notation thereof upon bench notes without any other or further written document or (2) by executing a separate written document, or (3) by including the order or judgment in the opinion or memorandum, or (4) by simply appending to the opinion or memorandum or including therein direction as to the order or judgment sought to be entered.

". . . .

"(c) Entry of Judgment or Order. Upon rendition of a judgment or order as provided in subdivision (a) of this rule, unless it contains a specific direction otherwise or is subject to the provisions of Rule 54(b), the clerk shall note such judgment or order forthwith in the civil docket if separately maintained. Notation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order. The entry of the judgment or order shall not be delayed for the taxing of costs."

The parties have not cited any Alabama cases, and we have found none, considering whether a judgment fails to become effective if it is not entered until after the judge who rendered it has left office. The Committee Comments on the 1973 Adoption of Rule 58, Ala. R. Civ. P., however, include the following statements:

"Both under prior Alabama practice and the federal rules, the terms `rendition' and `entry' signify two entirely distinct events in theory, though in practice the two events may take place within such a short space of time as to make it unnecessary to distinguish between them. `Rendition' is the judicial pronouncement of the judgment or decree, the utterance by the judge of his decision, while `entry' of the judgment is the ministerial act of the clerk in recording the judgment duly rendered by the judge.

". . . .

"Subdivision (c) requires the clerk to note a judgment or order in the Civil Docket forthwith upon its rendition. The notation of the judgment is not to be delayed unless the judgment or order itself contains a specific direction to delay entry or the case is subject to Rule 54(b).... A judgment is effective at the time of its notation in the civil docket or its notation on separately maintained bench notes or upon the filing of a separate judgment or order."

Thus, even though a judgment may have been rendered by the trial judge, the judgment is not effective until it is entered. Despite language in Rule 58(c) that could be construed as providing that the entry of a judgment, regardless of the manner of its rendition, occurs when the clerk notes the judgment in the civil docket, it is well established that, when the manner of rendition is by a separate written document, a judgment is not entered until that separate written document is filed in the clerk's office. As our Supreme Court reiterated in Allstate Insurance Co. v. Coastal Yacht Services, Inc., 823 So.2d 632 (Ala.2001):

"`Pursuant to Rule 58(c), Ala. R. Civ. P., "[n]otation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order." "Rule 58 ... obliterate[s] any distinction between [the ministerial act of] entry and [the judicial act] of rendition of judgment and ... make[s] the operative event the act of the judge." 2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated, § 58.2, at 255 (3d ed.1996). However, when a judge renders

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