DocketNumber: 2170102
Citation Numbers: 265 So. 3d 300
Judges: Donaldson
Filed Date: 5/11/2018
Status: Precedential
Modified Date: 7/29/2022
Michael Bray ("the father") appeals from the judgment of the Winston Circuit Court ("the trial court") granting Jennifer Bray (Schafer) ("the mother") sole physical custody of the parties' children ("the children"). We dismiss the appeal because it was taken from a nonfinal judgment.
Facts and Procedural History
On November 9, 2013, the father filed a complaint seeking a modification of the judgment divorcing him and the mother and also a finding of contempt against the mother. The mother answered and asserted *301a counterclaim seeking a modification of custody to grant her sole physical custody of the children and child support from the father. On June 28, 2017, after a trial, the trial court entered a judgment granting sole physical custody of the children to the mother, granting visitation to the father, and ordering the father to pay the mother child support. Although the judgment modified the divorce judgment in other respects, the judgment did not include a ruling on the father's contempt claim.
On July 5, 2017, the father filed a motion to reconsider the judgment, requesting a hearing.
On October 23, 2017, the father filed a notice of appeal to this court. On appeal, the father contends that the denial of his July 26, 2017, motion by the operation of law, without a hearing, was reversible error and that insufficient evidence supports the trial court's modification of custody.
Discussion
As a threshold matter, we must determine whether we have jurisdiction over this appeal.
" 'Even though the issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. "Jurisdictional matters are of such importance that a court may take notice of them ex mero motu." McMurphy v. East Bay Clothiers,892 So.2d 395 , 397 (Ala. Civ. App. 2004). "[T]he question whether a judgment is final is a jurisdictional question." Johnson v. Johnson,835 So.2d 1032 , 1034 (Ala. Civ. App. 2002). "A final judgment is one that disposes of all the claims and controversies between the parties." Heaston v. Nabors,889 So.2d 588 , 590 (Ala. Civ. App. 2004).' "
Martin v. Cowart,
In this case, the father filed a complaint seeking, among other things, a finding of contempt against the mother, and he reasserted that claim at trial. The judgment *302did not dispose of the father's contempt claim. Therefore, the father's appeal was taken from a nonfinal judgment. See Martin v. Cowart,
The mother's request for an attorney fee on appeal is denied.
APPEAL DISMISSED.
Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.
Although a motion to reconsider may be treated as a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., when it is directed to a final judgment, see Evans v. Waddell,
We note that Rule 59, Ala. R. Civ. P., applies only in regard to a final judgment. Day v. Davis,
An appeal of an order that does not dispose of all claims or controversies " 'may be had "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." See Rule 54(b), Ala. R. Civ. P.; Baker v. Johnson,