Domestic Relations Issue, 0521 ALBJ, Vol. 82 No. 2 Pg. 176 (June, 2021)

AuthorCharles H. Dunn
PositionVol. 82 2 Pg. 176


No. Vol. 82 No. 2 Pg. 176

Alabama Bar Lawyer

May, 2021


Charles H. Dunn

When I was asked to consider writing an article for this issue, the only parameters given to me in deciding on what topic to write were posed in two questions: will the article help an actual Alabama lawyer in their practice of family law, and is the article written so that you would want to read it?

Given that my attention span is that of a gnat, I have always been drawn to articles in scholarly publications that neatly and succinctly provide the topical "meat on the bone" and which then direct the reader to other authoritative sources where additional information can be gleaned should the reader's appetite for knowledge on the topic not be satiated. With that structure in mind, below are a few Did You Knows-nuggets of information that you might find useful in your application and practice of family law.

DID YOU KNOW under Rule 59.1, Ala. Rule Civ. P., an appeal may be dismissed as untimely when the parties only consent to extend the time for a hearing on the post-judgment motion? Ex parte Bodenhamer, 904 So.2d 294 (Ala. 2004); Slay v. Slay, 292 So.3d 651 (Ala.Civ.App. 2019) (holding that "consent to extend the time for a hearing on a post-judgment motion does not equate to consent to extend the pendency o f the post-judgment motion beyond the 90-day period prescribed by Rule 59.1").

Practice Pointer:

For the unwary, if the intent of all parties is to extend the time for the trial court to rule on a post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 beyond the 90-day period that Rule 59.1 prescribes, make absolutely certain that the express consent of all parties appear of record. And for the savvy, filing a joint motion is not necessary as Rule 59.1 does not require that a trial court take any action to effectuate an express consent of all parties to extend the 90-day period to rule on a post-judgment motion. The only requirement to extend that period is that the express consent of all the parties appear of record which can be stated in a jointly filed submission with the trial court.

DID YOU KNOW while successive post-judgment motions are generally not allowed, a second motion that is timely filed within 30 days of the entry of the judgment which raises different arguments than the arguments asserted in the original post-judgment motion is valid and operates to extend the time for the filing of an appeal? Barnes v. Barnes, 298 So.3d 1085 (Ala.Civ.App. 2019).

Practice Pointer: A second bite at the apple may be possible. Even if the trial court has already denied your client's original post-judgment motion, another post-judgment motion may still be filed with the trial court so long as it contains additional and different arguments than the first, and so long as it can be filed within 30 days from entry of the judgment. And while a second bite at the apple is always nice, more importantly, a second post-judgment motion filed under these circumstances can preserve any arguments for appellate review that the first motion omitted by oversight or error.

DID YOU KNOW the Grandparent Visitation Act ("the GVA"), Ala. Code § 30-3-4.2 (1975), does not create a cause of action in which a grandparent may seek visitation from a...

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