text:
    Conelious JARRETT v. ALABAMA DEPARTMENT OF INDUSTRIAL RELATIONS and Dothan Country Club.
    2070624.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2008.

      Mary Jane Oakley, Legal Services Alabama, Inc., Dothan, for appellant.
    Frank D. Marsh, gen. counsel, and Joseph S. Ammons, asst. gen. counsel, Alabama Department of Industrial Relations, for appellees.
   MOORE, Judge.

Conelious Jarrett appeals from the Houston Circuit Court’s February 7, 2008, summary judgment in favor of the Alabama Department of Industrial Relations and the Dothan Country Club on Jarrett’s claim for unemployment-compensation benefits. We reverse and remand.

Facts and Procedural History

Dothan Country Club (“DCC”) employed Jarrett as a waiter. On April 10, 2007, Jarrett tendered a letter of resignation, indicating that his last date of employment would be May 31, 2007. Jackie Culpepper, the human-relations director at DCC, testified by affidavit that she began seeking a replacement for Jarrett’s position after he turned in his letter of resignation, that she hired a part-time employee on May 11, 2007, and that she later hired another part-time employee to assume Jarrett’s duties.

Culpepper attested that, shortly before Jarrett’s scheduled termination date, Jarrett indicated to Culpepper that he desired to revoke his letter of resignation. According to Jarrett, in late April or early May, he spoke with Culpepper about continuing to work at DCC. Jarrett stated that, at first, Culpepper had told him that some people had been hired to replace him but that, subsequently, Culpepper had instructed Jarrett to speak with Paul Neal, DCC’s dining-room manager and Jarrett’s supervisor. According to Jarrett, Neal told him that DCC had hired other people to replace him but that the new employees either had not shown up or otherwise had not worked out and that Jarrett could continue working at DCC. Jarrett attested that he had then spoken with Culpepper, who, he stated, had told him that it was alright with her for Jarrett to continue working at DCC. Jarrett stated that he had continued working at DCC, that both Culpepper and Neal had led him to believe that he would continue to be employed there, and that he had obtained a vacation-request form from Culpepper because he intended to request some time off in August. Jarrett stated that he had been put on the schedule for the weekend after May 31, 2007, but that, when he went to pick up his paycheck on June 1, 2007, a Friday, he was told that he had been “let go.”

Neal stated in his affidavit, filed after Jarrett’s affidavit, that he had not told Jarrett that he could continue working at DCC; he also stated that other employees had been hired to fill Jarrett’s position.

After being “let go,” Jarrett filed a claim for unemployment-compensation benefits, which an administrative hearing officer denied. On October 4, 2007, Jarrett filed a notice of appeal to the Houston Circuit Court. The Alabama Department of Industrial Relations and DCC (hereinafter collectively referred to as “ADIR”) filed an answer to Jarrett’s notice of appeal on October 22, 2007. On November 6, 2007, ADIR filed a motion to dismiss or, in the alternative, motion for a summary judgment, to which Jarrett responded on January 4, 2008. On February 7, 2008, ADIR filed a second motion to dismiss or, in the alternative, motion for a summary judgment. On that same day, the trial court entered an order granting ADIR’s motion for a summary judgment. Jarrett filed a postjudgment motion on February 15, 2008; the trial court denied that motion on February 21, 2008. Jarrett timely filed his notice of appeal to this court on March 28, 2008.

Standard of Review

In General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala.2002), our supreme court outlined the appropriate standard of review of a summary judgment:

“ ‘We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:
“ ‘ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material facts exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.” ’
“American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Gas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)).”

Analysis

In its motions for a summary judgment, ADIR argued that Jarrett was not entitled to unemployment-compensation benefits because, it asserted, Jarrett had voluntarily resigned from his employment at DCC. Alabama Code 1975, § 25^-78, states, in pertinent part:

“An individual shall be disqualified for total or partial unemployment:'
“(2) Voluntarily Quitting Work. If he has left his most recent bona fide work voluntarily without good cause connected with such work.”

ADIR relies on Jarrett’s admission in his affidavit that he had submitted a letter of resignation, and it argues that DCC accepted, relied on, and acted on that resignation. It is undisputed that Jarrett submitted a letter of resignation on April 10, 2007. The question remains, however, whether Jarrett effectively rescinded that resignation.

We can find no cases in Alabama that have addressed the issue whether an employee’s withdrawal of his or her previously submitted resignation, without more, removes him or her from being disqualified from receiving unemployment-compensation benefits under § 25-4-78(2). In Cunliffe v. Industrial Claim Appeals Office of State of Colorado, 51 P.3d 1088 (Colo.Ct. App.2002), cited by Jarrett, the Colorado Court of Appeals discussed approaches by different jurisdictions to the question “whether an employer’s refusal to accept an employee’s retraction of a voluntarily submitted resignation transforms that resignation into an involuntary termination”:

“A minority view is that an employer’s refusal to accept the withdrawal of the resignation renders the subsequent termination involuntary and thus entitles the employee to benefits. See, e.g., Mauro v. Administrator, 19 Conn.Supp. 362, 113 A.2d 866 (1954); Cotright v. Doyal, 195 So.2d 176 (La.Ct.App.1967).
“In Pennsylvania, a resignation remains a voluntary termination if the employer has taken steps to replace the claimant before the claimant’s revocation attempts. See Zimmerman v. Commonwealth, 101 Pa. Commw. 274, 516 A.2d 102 (1986).
“However, the majority of jurisdictions have held that an employer may not be required to accept the withdrawal of the resignation. Thus, a claimant may be denied benefits on the basis of a voluntary termination, notwithstanding an employer’s refusal to accept a retraction of the voluntary resignation. See Osterhout v. Everett, 6 Ark.App. 216, 639 S.W.2d 539 (1982); Wright v. District of Columbia Dep’t of Employment Services, 560 A.2d 509 (D.C.1989); Langley v. Employment Appeal Bd., 490 N.W.2d 300 (Iowa Ct.App.1992); Guy Gannett Publ’g Co. v. Maine Employment Sec. Comm’n, 317 A.2d 183 (Me.1974).”

51 P.3d at 1089.

Jarrett requests that this court adopt the reasoning in a Louisiana case, Cotright v. Doyal, 195 So.2d 176 (La.Ct.App.1967), in which Cotright had given her employer notice that she was leaving her employment at a future date but then later advised her employer that she was not leaving, at which time Cotright was informed that her employer had already hired a replacement. 195 So.2d at 177. The applicable Louisiana statute at issue in Cot-right, La.Rev.Stat. Ann. § 23:1601, like § 25-4-78(2), disqualified an individual from unemployment-compensation benefits when he or she had left his or her employment without good cause connected with his or her employment. Id. In determining that Cotright was entitled to unemployment-compensation benefits, the court stated:

“It is not open to question that had claimant not retracted her resignation, she would not be eligible for compensation. By retracting her notice of leaving, however, and remaining available and desiring to continue her employment we opine that her status was as one who did not voluntarily become unemployed, or stated somewhat differently, she never left her job until so directed by her employer.”

195 So.2d at 178-79 (citations omitted).

At this juncture, we need not decide whether to adopt the analysis in Cotright and Cunlijfe, however. Based on the competing affidavits, a material factual dispute exists regarding whether DCC accepted Jarrett’s attempt to rescind his resignation. If it did, then Jarrett did not voluntarily leave his employment on June 1, 2007, and § 25-4-78(2) would not disqualify him from receiving unemployment-compensation benefits. If it did not, then, and only then, would the court have to consider the effect of DCC’s refusal to accept Jarrett’s withdrawal of his resignation on his unemployment-compensation claim. We therefore reverse the judgment of the trial court and remand the cause for resolution of that issue.

Jarrett also asserts on appeal that the trial court erred in failing to order ADIR to prepare a transcript of the administrative proceedings regarding his unemployment-compensation claim. Jarrett asserts that the transcript contains testimony from Culpepper that would be helpful to his ease.

Section 25-4-95, Ala.Code 1975, states, in pertinent part:

“The director [of the Department of Industrial Relations] shall cause to be certified and filed in the said court all documents and papers introduced in evidence before the Board of Appeals or appeals tribunal, together with the findings of fact and the decision of the Board of Appeals or the appeals tribunal, as the case may be. No circuit court shall permit an appeal from a decision allowing or disallowing a claim for benefits unless the decision sought to be reviewed is that of an appeals tribunal or of the board of appeals and unless the person filing such appeal has exhausted his administrative remedies as provided by this chapter.”

ADIR argues that, “[w]hile it is clear that the record must be certified to the court prior to the trial of the case, there is no specific requirement that the record be certified prior to any preliminary hearings such as the one here involving summary judgment.” ADIR further argues that Jarrett has not shown that he has been prejudiced by the record not having been certified. Finally, ADIR cites State Department of Industrial Relations v. Page, 362 So.2d 268 (Ala.Civ.App.1978), for the proposition that “the reason for having the record certified is to provide proof to the court that the claimant/employer has exhausted them administrative remedies.”

This court, in Page, did observe that § 25-4-95 requires the record to be certified to establish that the administrative process had been completed. 362 So.2d at 265. However, the court also stated that material from the administrative record could be used by the trial court to assist it in establishing the issues to be decided by the trial court. Id. at 265-66. In Page, the materials from the administrative record that were objected to had not been admitted into evidence and, therefore, could not have been considered by the trial court. Id. at 266. The materials had, however, been certified to the trial court in accordance with § 25-4-95. Id. at 266. Without deciding whether the trial court’s failure to order ADIR to certify the entire administrative record to the trial court prejudiced Jarrett, we instruct the trial court, on remand, to take appropriate actions to ensure that ADIR complies with § 25-4-95.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . The facts are taken from the affidavits and exhibits attached to the summary-judgment motions and the opposition to those motions.

      . ADIR asserts that, at the summary-judgment hearing, the trial court requested that both parties file additional affidavits and that Jarrett failed to provide the same. ADIR argues further that, because Jarrett failed to file additional affidavits, he failed to controvert the evidence presented in Neal’s affidavit indicating that Neal had not told Jarrett that he could return to work at DCC after the date of his intended resignation. However, in opposition to ADIR’s initial motion, Jarrett had submitted his affidavit in which he stated that Neal had accepted his request to rescind his resignation. That affidavit sufficiently contradicted Neal’s later affidavit testimony so that no additional affidavit testimony was necessary to create a genuine issue of material fact on that issue. See Ala. R. Civ. P., Rule 56(e) (“the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial”).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    D.C.L. v. MARION COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2070863.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2008.

      John V. Martine, Winfield, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   THOMAS, Judge.

D.L.L. (“the child”) was born on December 10, 2007, to unmarried parents, M.M. (“the mother”) and D.C.L. On March 6, 2008, the Marion County Department of Human Resources (“DHR”) filed a petition to terminate the mother’s parental rights to the child. The petition named D.C.L. as the child’s father and requested that the juvenile court appoint an attorney to represent him. At a hearing on May 2, 2008, the mother consented to a termination of her parental rights. On May 28, 2008, D.C.L. filed a “Motion for Adjudication of Paternity,” alleging, among other things, the following;

“3. [The child] was born out of wedlock on 12/10/2007.
“4. [The child] is in the temporary custody of Marion County DHR.
“5. [The] Court has not terminated the rights of the mother or [D.C.L.] “6. The DHR shall establish a putative father registry which shall record the names, Social Security number, date of birth, and address of any person adjudicated by a court of this state to be the father of a child born out of wedlock. § 26-10C-l(a)(l).
“7. The clerk of the court which determines a man to be the father of a child born out of wedlock shall immediately notify [DHR] of the determination of paternity. § 26-10C-l(b). “8. [D.C.L.] failed to register within 30 days of the birth of the child with the Putative Father Registry maintained by DHR and might lose rights to contest permanent placement by adoption in this action under § 26-10C-l(i).
“9. DHR has notice of [D.C.L.’s] paternity. DHR moved for, and [D.C.L.] submitted to, genetic testing which proves that he is the father; DHR has the test results which have been submitted to the Court.
“10. DHR has admitted that ‘[D.C.L.’s] paternity has been established.’ (See attached Court Report dated 1/15/2008).
“11. [D.C.L.] has been ordered by the Court to pay child support and is in compliance.
“12. [D.C.L.] has established a relationship with the child by regularly visiting the child at DHR each Friday as permitted.
“13. [D.C.L.], although still seeking adequate housing, is in substantial compliance with the I.S.P. [individualized service plan].
“Wherefore, premises considered, D.C.L. moves this Court to formally adjudicate his paternity and order the Clerk of this Court to notify DHR to add his name to the Putative Father Registry.”

On June 11, 2008, the juvenile court entered a judgment terminating the mother’s parental rights to the child. The judgment noted that D.C.L., the “biological father of the child,” had been present with counsel at a hearing on May 2, 2008, at which the mother, with advice of counsel, had executed a valid consent to termination of her parental rights. The June 11, 2008, judgment recites that the juvenile court determined by clear and convincing evidence that the child was dependent; that DHR had made reasonable efforts to prevent or eliminate the need for removal of the child from its home; that DHR had made reasonable efforts to preserve or reunify the family; that the mother was unable or unwilling to discharge her responsibilities to and for the child; that the conduct or condition of the mother was such as to render her unable to properly care for the child; that such conduct or condition was unlikely to change in the foreseeable future; that there were no viable relative resources for the child; that the juvenile court had considered other alternatives to termination of parental rights and had concluded that there were no less drastic measures that would better serve the best interests of the child than awarding DHR permanent custody of the child. The juvenile court’s judgment concluded:

“Upon consideration of the foregoing, it is ordered, adjudged and decreed by the Court as follows:
“A. The Permanent Custody Petition of the Marion County [DHR] is hereby granted.
“B. Permanent custody and control of [the child] is hereby granted to the Alabama [DHR] and said department is granted the full power to proceed with permanent plans for the child.
“C. Any and all rights of [M.M.], mother of the child, relatives or any persons in and to the custody of the child are terminated.
“D. The Alabama [DHR] shall have the right to place the child for adoption with full power to consent to said adoption and upon entering a final decree of adoption by a court of competent jurisdiction the custody of the Alabama [DHR] shall cease; otherwise to remain in full force and effect.”

(Emphasis added.)

On June 18, 2008, the juvenile court entered a “supplemental order” that, the court stated, “relate[d] back to the Court’s termination-of-parental-rights order [rendered] on the 4th day of June 2008 [and entered on June 11, 2008].” The supplemental order states:

“It is ordered, adjudged and decreed by the Court as follows:
“A. The Motion for Adjudication of Paternity filed on behalf of the biological father, [D.C.L.], is denied.
“B. [D.C.L.] failed to comply with the Putative Father Registry [Act], Ala. Code § 26-10C-1.”

On June 18, D.C.L. filed both a post-judgment motion and a notice of appeal. In his postjudgment motion, D.C.L. argued that the juvenile court’s finding that no viable relative resources existed was premature because D.C.L. himself was a potential relative resource and because the court had not heard any evidence pertaining to relative resources. D.C.L. also argued that the juvenile court’s finding with respect to DHR’s having made reasonable efforts to preserve and reunify the family was premature because the court had not heard any evidence with respect to whether D.C.L. would have been a suitable custodial placement for the child. Finally, D.C.L. pointed out that the juvenile court had not ruled that he was unable or unwilling to discharge his responsibilities to and for the child; therefore, D.C.L. requested that the juvenile court “grant him custody or a hearing to determine whether the best interests of the child would be served [by] granting him custody.” The juvenile court denied D.C.L.’s postjudgment motion on June 23, 2008.

D.C.L.’s notice of appeal indicates that the judgment from which he is appealing is a termination-of-parental-rights judgment. Unless the juvenile court’s June 11, 2008, judgment also terminated D.C.L.’s parental rights, however, D.C.L. has no standing to attack the judgment terminating the mother’s parental rights. See B.H. v. Marion County Dep’t of Human Res., 998 So.2d 475 (Ala.Civ.App.2008) (holding that child’s maternal great-aunt lacked standing to appeal from judgment terminating mother’s parental rights); D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1205-06 (Ala.Civ.App.2005) (holding that an aunt seeking custody of a dependent child could not assert the rights of the parents, whose rights were terminated, on appeal from the denial of her custody petition).

Although DHR takes the position that the June 11, 2008, judgment operated as a termination of D.C.L.’s parental rights, we are clear to the conclusion that the June 11, 2008, judgment did not terminate D.C.L.’s parental rights. Notwithstanding the confusing language in Part C. of the judgment purporting to terminate “[a]ny and all rights of ... relatives or any persons in and to the custody of the child,” the judgment could not have terminated D.C.L.’s parental rights because (1) neither DHR nor any other entity had petitioned to terminate D.C.L.’s parental rights and (2) the juvenile court made no findings with respect to grounds for terminating D.C.L.’s parental rights. Accordingly, to the extent that D.C.L. purports to appeal from a June 11, 2008, judgment on the basis that that judgment terminated his parental rights, the appeal is a nullity because that judgment did not terminate D.C.L.’s rights.

We pretermit discussion of whether D.C.L. could properly appeal from the juvenile court’s June 23, 2008, order denying his postjudgment motion seeking “custody [of the child] or a hearing to determine whether the best interests of the child would be served [by] granting [D.C.L.] custody,” because we conclude that D.C.L. could properly appeal from the juvenile court’s June 18, 2008 “supplemental order” that denied his “Motion for Adjudication of Paternity.”

In denying D.C.L.’s “Motion for Adjudication of Paternity,” the juvenile court stated that D.C.L. had failed to comply with the Putative Father Registry Act. The June 18, 2008, supplemental order was a final judgment because it was a “terminal decision,” see Horton v. Horton, 822 So.2d 431, 433 (Ala.Civ.App.2001), that left nothing further to be resolved with respect to D.C.L.’s request for a formal paternity adjudication.

We hold that the juvenile court erred in denying D.C.L.’s motion to adjudicate paternity based on the rationale that he had failed to comply with the Putative Father Registry Act. The Putative Father Registry Act applies in adoption proceedings, see § 26-10A-7(a)(5), Ala.Code 1975, and the failure to comply with its provisions does not constitute a ground either for terminating a parent’s parental rights, see § 26-18-7, Ala.Code 1975, or for refusing to decide a paternity issue under the Uniform Parentage Act, see § 26-17-4(2), Ala.Code 1975.

The record before us does not include a transcript of any of the proceedings before the juvenile court. Nevertheless, it is apparent from DHR’s petition to terminate the mother’s rights, from portions of the court report submitted by DHR, and from the allegations of D.C.L.’s pleadings that were uncontested in the juvenile court and unchallenged by DHR on appeal that D.C.L. is the child’s presumed father. “A man is presumed to be the natural father of a child if ... [wjhile the child is under the age of majority, he receives the child into his home or otherwise openly holds out the child as his natural child.” § 26-17-5(a)(4), Ala.Code 1975.

Recently, in J.L.P. v. L.A.M., [Ms. 2070578, Oct. 31, 2008] — So.3d - (Ala.Civ.App.2008), this court pointed out a distinction between the rights afforded to “presumed fathers” and “putative fathers” under the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975:

“Under the Alabama Adoption Code, a ‘presumed father’ of a child who has never married or attempted to marry that child’s mother is afforded an unqualified right to object to a proposed adoption of that child, regardless of the child’s actual paternity, if ‘[h]e received the adoptee into his home and openly held out the adoptee as his own child.’ Ala.Code 1975, § 26-10A-7(a)(3)d.
“In contrast, a ‘putative father’ who is made known to the court considering the adoption is merely given the right to object to an adoption ‘provided he complies with Section 26-10C-1,’ i.e., the statute governing the putative-father registry.”

— So.3d at-. In J.L.P., we held that “the necessity of the consent of a ‘presumed father,’ in contrast to that of a ‘putative father’ who merely alleges or is reputed to be the father of the proposed adoptee, is not conditioned upon compliance with the [Putative Father Registry] Act.” — So.3d at-.

The record before us suggests that D.C.L.’s paternity of the child was established early in the underlying proceedings by genetic testing. It indicates that D.C.L.’s paternity was acknowledged by DHR and made the basis for child-support and visitation orders as well as an individualized service plan for D.C.L. “No duty of support arises from a mere presumption of paternity; ‘paternity must be established before a court determines whether child support is owed.’ Ex parte State of California, 669 So.2d 884, 885 (Ala.1995).” State ex rel. T.L.K. v. T.K., 723 So.2d 69, 71 (Ala.Civ.App.1998). Under the circumstances, we hold that there has already been an implicit, if not an explicit, adjudication of D.C.L.’s paternity of the child. In order to remove any doubt, however, we reverse that portion of the juvenile court’s June 11, 2008, judgment designated as a “supplemental order” and remand the case; we instruct the juvenile court to formally adjudicate D.C.L.’s paternity of the child if it has not already done so and to report its determination to DHR pursuant to § 26-10C-l(a)(l), Ala.Code 1975.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.

BRYAN, J., concurs in the result, without writing.

      . The trial court's orders refer to both the Marion County Department of Human Resources and the Alabama Department of Human Resources. “The county departments of human resources serve as agents of the State Department of Human Resources; the State Department is empowered to designate the county as its agent and to assist the counties in their various duties when necessary. See § 38-6-2, Ala. Code 1975; Admin. Rules 660-1 —2—.01 (g) and 660-1-2.02.” State Dep't of Human Res. v. Estate of Harris, 857 So.2d 818, 819 n. 1 (Ala.Civ.App.2002). The Marion County Department of Human Resources instigated the proceedings in the trial court and is designated as the appellee; therefore, except where indicated in the portions of the trial court’s orders quoted infra, references in this opinion to “DHR” shall mean the Marion County Department of Human Resources.


author: THOMPSON, Presiding Judge.

text:
    Christine Marie STANLEY v. Jerry Lester STANLEY, Jr.
    2070241.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2008.
    Amy S. Creech and Sreekanth Ravi of Rhodes & Creech, Huntsville, for appellant.

      J. Zach Higgs, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appel-lee.
   THOMPSON, Presiding Judge.

Christine Marie Stanley (“the wife”) sued Jerry Lester Stanley, Jr. (“the husband”), for a divorce. In her complaint, the wife sought custody of the parties’ two minor children, an award of child support, an equitable property division, and an award of alimony. The husband answered and denied the material allegations of the wife’s complaint.

The parties reached a settlement agreement, and on October 18, 2007, the trial court entered a divorce judgment that incorporated the terms of that settlement agreement. On November 13, 2007, the wife filed, purportedly pursuant to Rule 59(e), Ala. R. Civ. P., a motion entitled “motion to alter, amend, or vacate.” That motion stated:

“1. Pursuant to the parties’ Final [Judgment] of Divorce, if the company, Southgate Technologies, was sold prior to the parties’ youngest child reaching age twenty-five (25), ‘... the Husband shall immediately establish an irrevocable trust agreement with the parties’ two children designated therein as the equal, sole and primary beneficiaries thereof. The Wife shall participate in the creation of said trust and its terms shall be mutually agreed upon by the parties with such agreement not to be unreasonably withheld. It shall be funded with fifteen percent (15%) of the Husband’s net proceeds from said sale (net proceeds meaning proceeds after the payment of costs of sale and taxes pursuant to said sale).’
“2. After the parties’ reached this agreement and immediately after the Court entered the Final [Judgment] of Divorce herein, Southgate Technologies was sold. Both of the parties’ children remain under the age of twenty five (25). Nevertheless, the Husband refuses to create the trust as mandated by the Court, stating he received no compensation for his thirty percent (30%) interest in said company.
“3. [The wife] submits upon reasonable information and belief, [the husband] did in fact receive significant compensation for his interest in said company as well as his agreement to continue working for the purchasing entity as a term of said sale.
“4. [The wife] further submits upon reasonable information and belief [the husband] structured the sale of his company so as to defeat the intent of the parties with regard to preservation of business proceeds for the minor children subject to this action.
“5. [The wife] is in need of an Order of this Court altering or amending its Final [Judgment] of Divorce so as to prevent [the husband’s] frustration of the spirit of the parties’ agreement, and to ensure the Court’s [judgment] with regard to this property settlement is realized.
“6. [The wife] requests a hearing and the opportunity to present testimony on this motion.”

On November 19, 2007, the trial court entered the following order:

“The Court having read and reviewed the [wife’s] Motion to Alter, Amend or Vacate the Final [Judgment] of Divorce entered on October 18, 2007, and the Notice of Intent to Take Testimony at Hearing on Motion to Alter or Amend, regards the Motion to Alter, Amend or Vacate as a petition seeking a contempt finding against the [husband] and one for enforcement of the [divorce judgment]. Therefore, it is a new action and court costs must first be paid and if not paid by December 4, 2007, the action will be dismissed.”

On December 14, 2007, the wife filed a notice of appeal challenging the November 19, 2007, order. The wife argues that the trial court erred in failing to conduct a hearing on her November 13, 2007, motion. In making that argument, the wife characterizes the November 13, 2007, motion as a postjudgment motion to alter, amend, or vacate the divorce judgment, filed pursuant to Rule 59(e), Ala. R. Civ. P. Rule 59(g), Ala. R. Civ. P., upon which the wife relies, provides that motions filed pursuant to Rule 59 “shall not be ruled upon until the parties have had opportunity to be heard thereon.” In response, the husband argues that the trial court correctly interpreted the wife’s November 13, 2007, motion as a motion seeking the enforcement of the divorce judgment rather than as a postjudgment motion.

“The substance of a motion and not its style determines what kind of motion it is.” Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997). The wife titled her November 13, 2007, motion as a “motion to alter, amend, or vacate,” see Rule 59(e), and she stated in that motion that she “was in need of an order ... altering or amending ” the divorce judgment. (Emphasis added.) However, in that motion, the wife sought to prevent the husband’s purported “frustration” of their settlement agreement that was incorporated into the divorce judgment, and she asked the trial court to “ensure” that the property settlement in the divorce judgment was “realized.” The wife did not ask that the trial court modify or vacate its property division in light of the husband’s sale of his business.

We agree with the conclusion reached by the trial court in its November 19, 2007, order that the wife’s November 13, 2007, motion was, in substance, a motion seeking the enforcement of the divorce judgment rather than a motion seeking the alteration or modification of the property-division provisions of that judgment. See Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998) (“It is well settled that this Court looks to the essence of a motion, not necessarily to its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure.”). Accordingly, in this case, the trial court was not required by Rule 59(g) to conduct a hearing on the wife’s November 13, 2007, motion. The relief sought in the wife’s November 13, 2007, motion must be sought in a new action in the trial court. See Vann v. Cook, 989 So.2d 556, 560 (Ala.Civ.App.2008).

Our determination that the November 13, 2007, motion was not a Rule 59(e) postjudgment motion was necessary in order for this court to determine whether it has jurisdiction over this appeal. Although the parties have not addressed the issue of the jurisdiction of this court, that issue is of such significance that this court may address that issue ex mero motu. Bryant v. Flagstar Enters., Inc., 717 So.2d 400, 401 (Ala.Civ.App.1998).

The trial court’s November 19, 2007, order did not actually rule on the wife’s November 13, 2007, motion. Rather, in that order, the trial court stated its intent to rule on the motion if the wife did not file a separate action seeking the enforcement of the divorce judgment. Accordingly, because the trial court did not dispose of the wife’s November 13, 2007, motion, the November 19, 2007, order was not sufficiently final to support an appeal. We note that, had the wife’s November 13, 2007, motion been a true postjudgment motion filed pursuant to Rule 59(e), Ala. R. Civ. P., it would have been denied by operation of law after the expiration of 90 days. See Rule 59.1, Ala. R. Civ. P. The denial by operation of law of a postjudgment motion is appealable, see Rule 4(a)(3), Ala. R.App. P., and the wife’s notice of appeal would have been deemed to have been held in abeyance until the denial of the motion by operation of law. Rule 4(a)(5), Ala. R.App. P.

The November 19, 2007, order was not a final order that could support an appeal. This court must dismiss an appeal taken from a nonfinal order. Bacadam Outdoor Advertising, Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998); Bryant v. Flags-tar Enters., Inc., 717 So.2d at 402. Accordingly, the wife’s appeal is hereby dismissed.

APPEAL DISMISSED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      1. In addition to her "motion to alter, amend, or vacate,” on November 13, 2007, the wife also filed a document entitled "notice of intent to take testimony at hearing on motion to alter or amend.” That document stated:
      "COMES NOW Plaintiff, CHRISTINE MARIE STANLEY, and files this her Notice of Intent to Take Testimony and as grounds therefore states as follows:
      "1. [The wife] has filed a Motion to Alter, Amend or Vacate the Court’s Final [Judgment] of Divorce and requested a hearing on the same.
      “2. [The wife] intends to take testimony at the hearing on the Motion to Alter, Amend or Vacate the parties’ Final [Judgment] of Divorce on the date and at the time specified by the Court for said hearing, as such testimony will be necessary for the Court to make a decision on [the wife’s] motion.”