Tidwell v. Tidwell
| Decision Date | 24 September 1986 |
| Citation | 496 So.2d 91 |
| Parties | Mae W. TIDWELL v. Billy Joe TIDWELL. Civ. 5284. |
| Court | Alabama Court of Civil Appeals |
Frank B. Potts of Potts, Young, Blasingame & Putnam, Florence, for appellant.
David Neal of Fine & Associates, Russellville, for appellee.
The wife appeals from a trial court order enforcing an oral separation agreement and from the denial of her motion to set aside the purported agreement. We hold that an order enforcing such an agreement prior to the entry of a judgment of divorce is not a final judgment which can support an appeal. We therefore dismiss the appeal as premature.
The facts material to our dismissal of the appeal can be summarized as follows: Billy Joe Tidwell (husband) sued Mae W. Tidwell (wife) for divorce; she answered and counterclaimed for divorce. On the day set for trial, the parties and counsel met to discuss a settlement. An oral separation agreement and property settlement was apparently reached between the parties. The trial did not take place. The husband subsequently filed a motion to have the agreement enforced. The wife filed a motion to set aside the agreement and to set the case for trial on the merits.
At a hearing on the existence and enforceability of the agreement, the court, over the objection of the wife, heard evidence on whether there was fraud or duress in the formation of the agreement. It determined there was no fraud or duress in the making of the agreement. The court ordered that the agreement be enforced within ten days. The wife filed a motion to reconsider and rehear the order so entered. A hearing was held and the trial court reaffirmed its earlier order enforcing the oral agreement. The court denied wife's motion for an evidentiary hearing to determine the fairness of the purported agreement. The wife then filed a motion for injunctive relief and/or contempt and to stay the order, upon which the trial court has not yet ruled. She appealed to this court.
We requested that the parties file supplemental briefs on the issue of whether the enforcement of the agreement was a final judgment from which an appeal could be taken. Having considered their response to our request, we hereby dismiss the appeal as premature, because it was not from a final judgment.
To support an appeal, an order appealed from must be a final judgment. Kelley v. U.S.A. Oil Corporation, 363 So.2d 758 (Ala.1978). A "final judgment" is a terminal decision which demonstrates there has been complete adjudication of all matters in controversy between the litigants. Holland v. Holland, 406 So.2d 877 (Ala.1981). In this case, there has been no divorce decree adopting the alleged agreement. The judgment entered is nothing more than a finding that there was an oral agreement in contemplation of a divorce and an order against the wife for specific performance within ten...
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