Stephens v. Kathryn Nelson. Rebecca Lynn Stephens Kimbrough

• Decision Date: 06 September 2013
• Docket Number: 2111181 and 2120111.
• Parties: Timothy Edward STEPHENS v. Kathryn NELSON. Rebecca Lynn Stephens Kimbrough v. Kathryn Nelson.
• Court: Alabama Court of Civil Appeals

141 So.3d 1073

Timothy Edward STEPHENS

v.Kathryn NELSON.

Rebecca Lynn Stephens Kimbrough

v.Kathryn Nelson.

2111181 and 2120111.

Court of Civil Appeals of Alabama.

Sept. 6, 2013.

James E. Deshler II, Thomasville, for appellant Timothy Edward Stephens.

James E. Kimbrough, Jr., Mobile, for appellant Rebecca Lynn Kimbrough.

Lamar C. Johnson of Gilmore Law Firm, Grove Hill, for appellee.

THOMPSON, Presiding Judge.

In 2005, Kathryn Nelson filed an action in the Clarke Circuit Court (“the trial court”) against Timothy Edward Stephens and Rebecca Lynn Stephens Kimbrough seeking a sale for division of certain real property owned by Nelson, Stephens, and Kimbrough. Nelson later amended her 2005 complaint and added Larry Whatley as a defendant.

On September 22, 2008, the trial court entered a judgment that incorporated an agreement reached by the parties. That judgment divided the property but specified that the exact location of the various parcels would be determined by a survey to be conducted later. In addition, the judgment provided that “each party to this proceeding shall be granted a non-exclusive easement for ingress and egress along the existing roadways which transverse the subject property.” Paragraph 8 of the September 22, 2008, judgment further stated:

“8. That [Nelson] shall have the option of closing the existing roadway which enters the subject property from the Northwest side of the property, provided a roadway of equal or greater width and quality is first constructed across the property of [Nelson], which roadway connects with the roadway which is presently being used to access the property to be received by [Stephens], [Kimbrough], and Larry Whatley.”

On June 26, 2009, Nelson filed a “motion for contempt,” seeking to have Kimbrough held in contempt for failing to comply with some provisions of the September 22, 2008, judgment pertaining to the payment for the survey required under that judgment. Kimbrough later moved to dismiss that motion on the ground that she had paid for her portion of the survey cost, and, on July 16, 2009, the trial court entered an order dismissing Nelson's motion for contempt.

Also on July 16, 2009, Nelson filed a “motion to compel,” seeking an order requiring Kimbrough to execute the deeds based on the survey ordered in the September 22, 2008, judgment. On August 3, 2010, the trial court entered an order requiring Kimbrough to execute those deeds.

On June 22, 2011, Stephens filed a “motion to compel and for temporary relief and for specific acts,” alleging that Nelson had closed the existing roadway (hereinafter “the old road”) used by Stephens to access his property and had constructed a new road (“the new road”) across her property to allow access to Stephens's property. Stephens alleged that the new road did not comply with the requirements of paragraph 8 of the September 22, 2008, judgment. On October 14, 2011, Kimbrough filed a motion similar in substance to that filed by Stephens on June 22, 2011.

The record indicates that the trial court conducted a hearing during which the parties agreed not to submit the testimony of witnesses. Rather, the parties' attorneys argued the matter before the trial court, and the trial court traveled to the property at issue to view both the old road and the new road. The record on appeal does not contain a transcript of that hearing.

On May 24, 2012, the trial court entered a judgment in favor of Nelson. That order provided, in pertinent part:

“Upon consideration of the motions, [Nelson's] response, arguments of counsel, and the Court having gone to the property and viewed the roads in question, the Court makes the following findings of fact:

“1. That the new road constructed by [Nelson] across her property is of greater width and quality than the ‘plantation road’ or old road that she closed.

“2. That the new road constructed by [Nelson] fully complies with paragraph 8 of the [judgment] entered on September 22, 2008.

“3. That [Nelson] has closed the old road or ‘plantation road’ across her property by constructing the new road across her property, which is of greater width and quality than the old road or ‘plantation road.’ ”

Based on those findings, the trial court denied the relief sought by Stephens and Kimbrough.

Stephens and Kimbrough each filed a postjudgment motion. In support of his motion, Stephens submitted his own affidavit and an affidavit by Debra J. Stephens.¹ Kimbrough submitted in support of her postjudgment motion certain deeds and an affidavit of a surveyor.

Nelson responded to the postjudgment motions by pointing out that the parties had agreed during the hearing on the merits that testimony was unnecessary. Nelson also asserted arguments disputing certain “facts” as alleged by Stephens and Nelson. Nelson also moved to strike the evidence submitted by Stephens and Nelson in support of their postjudgment motions.

The trial court denied the postjudgment motions on August 10, 2012, stating:

“Whereas a hearing was held on July 27, 2012, on said [postjudgment] motions. At said hearing each attorney presented arguments, and some photographs and other exhibits were presented.

“Upon consideration of the motions, [Nelson's] response, arguments of counsel, exhibits and the Court having gone to the property and viewed the roads in question....

“It is ORDERED, ADJUDGED, and DECREED as follows:

“1. The motions filed by [Stephens and Kimbrough] to alter, amend or vacate are hereby denied.”

(Emphasis added.) The trial court did not rule on Nelson's motion to strike.

Stephens and Kimbrough each timely appealed. Our supreme court transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.

Initially, we note that the dissent has questioned the subject-matter jurisdiction of the trial court to consider this matter because of an administrative failure on the part of the trial-court clerk to collect a filing fee and because of a lack of personal service on Nelson. The 2011 “motions to compel” filed by Stephens and Kimbrough sought a determination as to whether Nelson had properly complied with paragraph 8 of the September 22, 2008, judgment by constructing the new road before exercising her option under the September 22, 2008, judgment to close the old road.² A trial court retains jurisdiction to interpret and enforce its owns judgments.

“A trial court has inherent authority to interpret, clarify, and enforce its own final judgments. See Helms v. Helms' Kennels, Inc., 646 So.2d 1343, 1347 (Ala.1994) (‘a trial court does have residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment’); Gild v. Holmes, 680 So.2d 326, 329 (Ala.Civ.App.1996) (‘A trial court possesses an inherent power over its own judgments that authorizes it to interpret, clarify, implement, or enforce those judgments.’). Thus, even after this Court, on the direct appeal, affirm[s] the trial court's ... judgment, [the trial] court retain[s] jurisdiction to interpret and clarify that judgment.”

State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000).

In Garris v. Garris, 643 So.2d 993 (Ala.Civ.App.1994), and Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.1981), this court explained that a final judgment that supports an appeal may also be interlocutory in the sense that the trial court retains jurisdiction to implement, enforce, or clarify its judgment. In Garris v. Garris, 643 So.2d at 995, this court explained the trial court's retention of jurisdiction to enforce or clarify its judgment:

“[A]lthough the motion is entitled as one for modification, the actual relief sought is for the trial court to clarify and enforce its original judgment, which ‘equally divided’ the remaining funds. For appeal purposes, the divorce judgment was a final judgment; however, it also continued to be interlocutory in nature in the event it became essential to augment, refine, clarify, or enforce provisions regarding the final disposition of property and the division of the proceeds. Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.1981).”

(Emphasis added.)

In Mayhan, supra, cited in Garris v. Garris, supra, this court explained that a trial court retains jurisdiction over its judgments:

“We concur with the husband that a divorce judgment dividing property between the parties is not subject to modification as to such property division on account of changed conditions. Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980); Russell v. Russell, 386 So.2d 758 (Ala.Civ.App.1980). However, the 1980 judgment did not modify the 1979 agreement and judgment. The agreement authorized an equal division of [the parties'] equity in the property should the house be sold and no alteration as to such provision was made by the latest judgment. The agreement was ambiguous since it did not state how, when, by whom or in what manner the house would be sold, and the judgment clarified such matters. By virtue of the agreement of the parties, the court originally had jurisdiction of the property. By operation of law, the circuit court retained jurisdiction for any further judgments which might be subsequently required in order to enforce, implement or make a final disposition of the matter. For the purposes of appeal, the 1979 divorce judgment was final; yet, it was also interlocutory in nature ‘insofar as necessary to implement or enforce the provisions as to final disposition of the property by sale and division of the proceeds. (Citations omitted).’ Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (1973). In Haney the husband raised the same issue as is here involved and it was there decided contra to him.”

Mayhan v. Mayhan, 395 So.2d at 1023–24 (emphasis added). See also Boyd v. Boyd, 447 So.2d 790, 793 (Ala.Civ.App.1984) (“For appeal purposes the 1979 divorce judgment was a final judgment, but it also continued to be interlocutory in nature in the event it became essential to augment, refine, clarify, or enforce its provisions...