Carl Michael Seibert v. Lorri Ann Fields

REL: March 17, 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
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Carl Michael Seibert

v.

Lorri Ann Fields

Appeal from Madison Circuit Court
(DR-13-900006.82)

MOORE, Judge.

Carl Michael Seibert ("the former husband") appeals from a

judgment entered by the Madison Circuit Court ("the trial court")

following this court's reversal of a judgment that, among other things,

awarded him sole physical custody of his children with Lorri Ann Fields
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("the former wife") and ordered the former wife to pay child support. We

dismiss the former husband's appeal.

Procedural History

The parties have previously appeared before this court. See Seibert

v. Fields, 290 So. 3d 420 (Ala. Civ. App. 2019) ("Seibert"); Ex parte

Seibert, 231 So. 3d 1111 (Ala. Civ. App. 2017); Seibert v. Seibert, 217 So.

3d 843 (Ala. Civ. App. 2015) (table); Ex parte Seibert, 171 So. 3d 699 (Ala.

Civ. App. 2013) (table); and Ex parte Seibert, 171 So. 3d 700 (Ala. Civ.

App. 2013) (table). The parties were divorced by a judgment entered by

the trial court in 2014 and, on September 13, 2017, the former wife filed

a verified complaint seeking to hold the former husband in contempt and

for a rule nisi. Seibert, 290 So. 3d at 422. The former husband filed a

counterclaim, requesting, among other things, that he be awarded sole

physical custody of the parties' children and that the former wife be

ordered to pay child support. Id. On March 8, 2018, the trial court

entered a judgment that, among other things, awarded the former

husband sole physical custody of the parties' children and ordered the

former wife to pay to the former husband child support in the amount of

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$300 per month. Id. In Seibert, this court reversed the trial court's

judgment "to the extent that it determined the former wife's child-

support obligation," and we remanded the cause "for the trial court to

recalculate the former wife's child-support obligation in accordance with

Rule 32[, Ala. R. Jud. Admin.,] and this [court's] opinion." 290 So. 3d at

427.

Following this court's reversal, the trial court conducted a trial at

which testimony was presented and various exhibits were admitted into

evidence. On May 6, 2022, the trial court entered a judgment in which,

among other things, it determined that the former wife was in arrears in

her child-support obligation in the amount of $5,196.93; ordered the

former husband to pay fees and expenses to an expert witness in the

amount of $2,000; ordered each party to pay his or her own attorney's

fees and costs; and denied all remaining requested relief.

On June 3, 2022, the former husband filed a motion, pursuant to

Rules 52 and 59, Ala. R. Civ. P., requesting, among other things, that the

trial court amend its findings, make additional findings, or otherwise

amend its judgment. The trial court entered an order on August 29, 2022,

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denying that postjudgment motion. The former husband filed his notice

of appeal to this court on October 12, 2022. 1 On November 23, 2022, this

court entered an order directing the parties to file letter briefs addressing

whether the appeal had been timely filed. Both parties filed letter briefs

in response to this court's order; the former wife's letter brief was

accompanied by a motion to dismiss based on the former husband's

appeal having been untimely filed.

Motion to Dismiss

In her motion to dismiss, the former wife asserts that the former

husband did not timely file his notice of appeal. See Golden Poultry, Inc.

v. Mears, 719 So. 2d 838, 839 (Ala. Civ. App. 1998) ("The timely filing of

an appeal is a jurisdictional act, and an untimely appeal must be

dismissed.").

1The former husband filed a second motion pursuant to Rule 52,
Ala. R. Civ. P., on September 28, 2022, and the trial court entered an
order purporting to deny that motion on September 29, 2022; we note,
however, that that motion did not extend the time for the former husband
to file his notice of appeal. See, e.g., Golden Poultry, Inc. v. Mears, 719
So. 2d 838, 838 n.1 (Ala. Civ. App. 1998) (noting that a "second 'motion
for amended findings' " did not extend the time for appeal from the final
judgment in that case).
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The trial court entered a final judgment on May 6, 2022. On June

3, 2022, the former husband filed a timely postjudgment motion,

pursuant to Rules 52 and 59, and, on August 29, 2022, the trial court

entered an order denying that motion. In accordance with the Alabama

Rules of Appellate Procedure, the former husband had 42 days from the

entry of the August 29, 2022, postjudgment order to timely file a notice

of appeal. See Rule 4(a)(1), Ala. R. App. P. (providing that a notice of

appeal "shall be filed with the clerk of the trial court within 42 days (6

weeks) of the date of the entry of the judgment or order appealed from");

Rule 4(a)(3), Ala. R. App. P. (providing that the filing of a postjudgment

motion pursuant to Rules 52 or 59 of the Alabama Rules of Civil

Procedure suspends the running of the time for filing a notice of appeal).

The 42nd day following the entry of the August 29, 2022, postjudgment

order fell on October 10, 2022, which was a legal holiday, see Rule 6(a),

Ala. R. Civ. P.; Rule 26(a), Ala. R. App. P., therefore, the former husband

had until October 11, 2022, to timely file a notice of appeal. See Rule 4,

Ala. R. App. P.; Rule 26(a), Ala. R. App. P. (extending the last day of any

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period within the Alabama Rules of Appellate Procedure to the end of the

next day when the last day of the period occurs on a legal holiday).

In his letter brief to this court, the former husband admits that his

notice of appeal was not filed in the trial court until October 12, 2022. He

asserts, however, that his attorney experienced technical difficulties with

the trial court's electronic filing system and was unable to file the notice

of appeal in the trial court on October 11, 2022. The former husband

further asserts that his attorney electronically filed the notice of appeal

with this court on October 11, 2022, and he directs this court to the notice

of appeal in this court's case file, which bears a time stamp dated October

11, 2022, at 6:53 p.m. 2

2The former husband attached to his letter brief the affidavit of his
attorney in support of his assertions surrounding the difficulties his
attorney had while attempting to electronically file the notice of appeal
in the trial court on October 11, 2022. The affidavit is dated December
1, 2022. We decline to address whether this court may consider that
affidavit on appeal because such a determination is unnecessary in light
of our resolution of the former wife's motion to dismiss.
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The Alabama Rules of Appellate Procedure explicitly address the

proper method of filing a notice of appeal to invoke the jurisdiction of this

court. Rule 3(a)(1), Ala. R. App. P., provides:

"In civil cases, an appeal permitted by law as of right shall be
taken to an appellate court by filing a notice of appeal with
the clerk of the trial court within the time allowed by Rule 4[,
Ala. R. App. P.] The appellant shall cause a sufficient number
of additional copies of the notice of appeal to be marked filed
with the date of filing noted thereon and certified as a true
copy by the clerk of the trial court for service on the persons
and parties as provided by (d)(1) or (d)(3) of this rule. Appeals
by permission from interlocutory orders shall be taken in the
manner prescribed by Rule 5[, Ala. R. App. P.] The notice of
appeal may be filed electronically with the trial court clerk
through the trial court's electronic-filing system. If the notice
of appeal is filed electronically, the appellant is not required
to provide the additional copies required by this rule."

(Emphasis added.)

The requirement that the notice of appeal be filed with the clerk of

the trial court is echoed in Rule 3(d)(1), Ala. R. App. P. (providing that,

after the filing of the notice of appeal with the clerk of the trial court, it

is the duty of the clerk of the trial court to then serve a copy of the notice

of appeal on the clerk of the appropriate appellate court); the Committee

Comments to Rule 3 ("Failure of an appellant to take any step other than

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the timely filing of a notice of appeal with the clerk of the trial court does

not affect the validity of the appeal ...."); the Court Comment to

Amendments to Rule 3(a), (d), and (e) Effective October 1, 2019 ("If the

notice of appeal is filed electronically, under Rule 3(d)(3), the clerk of the

trial court may serve the notice of appeal electronically on the

appropriate appellate court ...."); and Rule 4(a)(1) (providing that the

notice of appeal "shall be filed with the clerk of the trial court within 42

days"). Pursuant to the Alabama Rules of Appellate Procedure, in civil

cases a notice of appeal must be timely filed in the trial court to invoke

this court's jurisdiction.

In Crawford v. Kindred, 418 So. 2d 908, 909 (Ala. Civ. App. 1982),

this court determined that a party did not properly appeal the judgment

entered by a small-claims court by filing a notice of appeal directly with

the clerk of this court, and, therefore, we dismissed the appeal. Since

Crawford was decided, neither our supreme court nor our legislature has

promulgated any provision authorizing a party to file a notice of appeal

directly with the clerk of this court from a judgment entered in a

domestic-relations case. Cf. Ala. Code 1975, § 16-24B-5 (requiring

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appeals in certain actions under the Teacher Accountability Act, Ala.

Code 1975, § 16-24B-1 et seq., to be filed with the clerk of this court).

Furthermore, neither the Alabama Rules of Appellate Procedure nor any

provision of the Code of Alabama allows this court to treat a notice of

appeal filed directly with the clerk of this court as having been filed with

the clerk of the trial court. We also have not located any provision in the

law authorizing this court to transfer a notice of appeal filed with the

clerk of this court to the clerk of the trial court for filing in that court. Cf.

Ala. Code 1975, § 12-1-4 (authorizing transfer of appeals between

appellate courts). Accordingly, we conclude that the notice of appeal filed

with this court is a legal nullity that was not sufficient to invoke this

court's appellate jurisdiction.

The former husband argues that this court should overlook the

defect where the notice was filed based on Dunning v. New England Life

Insurance Co., 890 So. 2d 92, 96 (Ala. 2003), which held that, "absent a

showing that the alleged defect in a notice of appeal prejudiced the

adverse party, an appeal will not be dismissed on the basis of that defect."

However, the issue in Dunning was not whether the notice of appeal had

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been timely filed or whether it had been properly filed in the appropriate

court to invoke that court's jurisdiction. Rather, the issue in Dunning

was whether a timely filed copy of a notice of appeal that did not include

an original signature was sufficient to invoke the jurisdiction of the

supreme court. Id. at 96. Our supreme court concluded in Dunning that,

because neither the Alabama Rules of Appellate Procedure nor the

Alabama Rules of Civil Procedure required that a notice of appeal bear

an original, penned signature, the timely and properly filed copy of the

original notice of appeal was acceptable to invoke the jurisdiction of the

appellate court. Id. at 96-97. In this case, unlike in Dunning, the defect

at issue is not procedural, but is jurisdictional, and one which this court

cannot overlook or excuse. See Rule 2(b), Ala. R. App. P. We find

Dunning does not conflict with our decision that the filing of the former

husband's notice of appeal directly with the clerk of this court is a legal

nullity.

The former husband also argues that his appeal should be

addressed on the merits because his failure to timely file his notice of

appeal in the trial court resulted from his attorney's "technical issues

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with the AlaFile system," which he apparently sought to mitigate by

filing his notice of appeal with the clerk of the trial court on the following

day. We conclude, however, that even in consideration of those asserted

facts, the former husband's appeal was not timely filed.

Electronic filing in the trial court is addressed by Rule 5(e), Ala. R.

Civ. P., which provides, in pertinent part, that "[a] pleading, motion,

order, or other document filed by electronic means in accordance with an

order or rules of the Supreme Court of Alabama constitutes filing with

the court for the purpose of applying these rules." Rule 44, Ala. R. Jud.

Admin., provides for the publication, by the Administrative Director of

Courts, of "a policies and procedures manual pertaining to electronic

filing to be placed on the Administrative Office of Courts' Web site." This

court takes judicial notice of the fact that, on the date this opinion was

released, a folder on the home page of the Web site

http://efile.alacourt.gov/administrative-procedures contains a document

entitled "Administrative Policies and Procedures for Electronic Filing in

the Civil Divisions of the Alabama Unified Judicial System" ("the

electronic-filing policy manual"), which we recognize as an order of the

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Alabama Supreme Court made in accordance with Rule 44. See Cooper

v. MTA, Inc., 166 So. 3d 106, 108 n.3 (Ala. 2014) (plurality opinion)

(stating that, pursuant to Rule 201(b)(2), Ala. R. Evid., an appellate court

"may take judicial notice of facts 'capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned' "); and Alabama Dep't of Revenue v. Frederick, 166 So. 3d

123, 124 (Ala. Civ. App. 2014) (concluding that the " 'Administrative

Policies and Procedures for Electronic Filing in the Civil Division of the

Alabama Unified Judicial System' " governed electronic filing and

amounted to " 'an order … of the Supreme Court,' " pursuant to Rule 5(e),

Ala. R. Civ. P.).

The electronic-filing policy manual addresses circumstances in

which a party experiences technical difficulties with the trial court's

electronic-filing system. Specifically, the electronic-filing policy manual

states:

"If a party misses a Court imposed filing deadline
because of an inability to electronically file based upon the
unavailability of the system, the party may submit the
untimely filed document, accompanied by a declaration
stating the reason or reasons for missing the deadline. The

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document and declaration must be filed no later than 12:00
noon of the first day on which the court of jurisdiction is open
for business following the original filing deadline. A model
form of the declaration is available at
http://efile.alacourt.gov."

In the present case, the former husband argues that his attorney

had technical difficulties with the trial court's electronic-filing system

that prevented him from filing the notice of appeal on October 11, 2022.

In that event, the electronic-filing policy manual permitted the late filing

of the notice of appeal by filing the same by "12:00 noon" on October 12,

2022, accompanied by a "declaration stating the reason or reasons for

missing the deadline." The State Judicial Information System indicates

that the former husband's notice of appeal was filed in the trial court on

October 12, 2022, at 12:07 p.m. Thus, the former husband missed the

filing deadline outlined in the electronic-filing policy manual.

Additionally, the former husband failed to submit to the trial court, at

any time, a declaration stating the reason for having missed the October

11, 2022, deadline. We conclude, therefore, that the former husband

failed to file his notice of appeal in the trial court in accordance with the

orders of our supreme court, as required by Rule 5(e).

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The timely filing of a notice of appeal with the clerk of the trial court

is a jurisdictional act, and an untimely appeal must be dismissed. See

Rule 3, Ala. R. App. P.; and Golden Poultry, 719 So. 2d at 829. The former

husband failed to timely file his notice of appeal with the clerk of the trial

court in accordance with the Alabama Rules of Appellate Procedure and

the Alabama Rules of Civil Procedure. We therefore dismiss the appeal.

See Rule 2(a)(1), Ala. R. App. P. (stating that an appeal shall be dismissed

if the notice of appeal is not timely filed to invoke the jurisdiction of the

appellate court).

APPEAL DISMISSED.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

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