David Lovering v. Dana Lovering

REL: April 7, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
CL-2022-0717
_________________________
David Lovering
v.
Dana Lovering
Appeal from Elmore Circuit Court
(DR-19-40)
EDWARDS, Judge.
David Lovering ("the husband") appeals from an order entered by
the Elmore Circuit Court ("the trial court") in divorce proceedings
between him and Dana Lovering ("the wife").
The parties married in March 2011. They have two children, twins
who were born in May 2012. In April 2019, the wife filed a divorce
CL-2022-0717
petition in the Chilton Circuit Court, and, after a motion to dismiss for
improper venue filed by the husband, that court entered an order
transferring the case to the trial court. Thereafter, the husband filed an
answer and a counterclaim for a divorce, and the wife filed a reply to the
husband's counterclaim. Each party requested an award of sole physical
custody of the children and an award of attorney fees.
After a motion filed by the wife, the trial court entered a pendente
lite order awarding her possession of the marital residence and custody
of the children and ordering the parties to maintain the status quo as to
asset preservation and financial matters. In June 2019, the husband
filed a motion to show cause, requesting that the wife be held in contempt
because, according to him, she had ceased depositing her paycheck into
the parties' joint bank account that was used to pay their living expenses
and had made large, extraordinary withdrawals from that account. The
wife filed a response, denying the allegations in the husband's motion to
show cause.
The trial court received ore tenus evidence during proceedings held
on March 31 and April 1, 2021. On April 1, 2021, the trial court entered
2
CL-2022-0717
an order divorcing the parties on the ground of incompatibility of
temperament and granting the parties' request to set the remaining
issues for further hearing.
The wife made an offer of judgment to the husband under Rule 68,
Ala. R. Civ. P. That offer provided for awarding the parties joint legal
custody of the children; awarding the wife sole physical custody; and
awarding the husband alternating weekend visitation during the school
year, certain holiday visitation, and visitation on alternating weeks
during the summer. On February 15, 2022, the wife filed a request for
an award of attorney's fees and expenses premised upon the husband's
failure to accept the offer of judgment.
The trial court received additional ore tenus evidence during a
proceeding held on February 15, 2022, on the remaining issues. On
March 23, 2022, the trial court entered an order awarding the parties
joint legal custody of the children; awarding the wife sole physical
custody of the children; awarding the husband visitation every other
weekend, on certain holidays, and on alternating weeks during the
summer; ordering the husband to pay the wife $748.59 per month as child
3
CL-2022-0717
support; and dividing the marital property. As to the marital property,
each party was awarded one or more automobiles that the respective
party had requested and his or her respective retirement benefits. Also,
the husband was ordered to reimburse the wife "the sum of $4,500 from
the canceled family Disney trip." As to other personal property, the
March 2022 order stated: "Representation that all personal property
being divided and distributed. If not, that issue is reserved to this Court."
As to the marital residence, the March 2022 order stated that it was
"placed in the exclusive possession of [the wife]. The property is to be
appraised, with the fee for the appraisal to be taxed to the closing
statement. Upon the appraisal, the equity is to be equally divided
between the parties, after the payment of the outstanding mortgage and
expense of re-finance."
The husband filed a motion requesting that the trial court
reconsider its order. After a hearing on that motion, the trial court
entered an amended order on April 28, 2022. The April 2022 order
granted the wife final decision-making authority with regard to issues
concerning the children, see Ala. Code 1975, § 30-3-153; provided each
4
CL-2022-0717
party with access to information regarding the children; provided
additional holiday visitation to the husband and addressed visitation
exchanges; and addressed issues regarding any future change of
residence by a party. The April 2022 order stated that "[t]he balance of
the [March 2022 order] is re-affirmed and adopted as if fully set out
herein." The husband filed a notice of appeal to this court.
We must first address whether a final judgment has been entered
such that this court has jurisdiction over the husband's appeal.
" ' "[J]urisdictional matters are of such magnitude
that we take notice of them at any time and do so
even ex mero motu." Nunn v. Baker, 518 So. 2d
711, 712 (Ala. 1987). Generally, an appeal will lie
only from a final judgment, and if there is not a
final judgment then this court is without
jurisdiction to hear the appeal. Hamilton ex rel.
Slate-Hamilton v. Connally, 959 So. 2d 640, 642
(Ala. 2006). A judgment is not final if it fails to
completely adjudicate all issues between the
parties. Giardina v. Giardina, 39 So. 3d 204, 207
(Ala. Civ. App. 2009) (citing Butler v. Phillips, 3
So. 3d 922, 925 (Ala. Civ. App. 2008)).' "
Harley v. Anderson, 167 So. 3d 355, 361 (Ala. Civ. App. 2014) (quoting
Sexton v. Sexton, 42 So. 3d 1280, 1282 (Ala. Civ. App. 2010)).
5
CL-2022-0717
At trial, the husband testified that the wife had personal-property
items in her possession that he wanted, and his counsel provided a list to
the wife's counsel that included 14 personal-property items that the
husband wanted in addition to other items that he had already received.
The wife testified on the last day of trial that, other than the title to a
vehicle that was awarded to her in the March 2022 order, all other
personal-property items had been divided between the parties. However,
the March 2022 order did not make a final award as to the parties'
personal property but instead stated: "Representation that all personal
property being divided and distributed. If not, that issue is reserved to
this Court." Accordingly, no final judgment has been entered in this case,
and the appeal must be dismissed. 1
APPEAL DISMISSED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.
1Because we are dismissing the appeal, we note for the benefit of
the parties and the trial court that there is no order in this case
addressing the parties' respective requests for attorney fees or the
husband's contempt motion. Further, we note that the wording of the
paragraph in the March 2022 order regarding the disposition of the
marital residence is ambiguous.
6