text:
    John LINOWIECKI v. Melissa NICHOLS.
    2111110 and 2111111.
    Court of Civil Appeals of Alabama.
    Feb. 1, 2013.

      Judy A. Newcomb, Spanish Fort, for appellant.
    Courtney Saad Adams of Christian & Small LLP, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

John Linowiecki appeals from two judgments in favor of Melissa Nichols, both of which involved disputes that arose from the administration and settlement of the estate of Linda Ann Marie Linowiecki (“the estate”). Linda Ann Marie Linow-iecki (“Linda”), also known as Linda Ann Marie Curtiss, was Linowiecki’s wife and Nichols’s mother.

The record indicates that Linda’s will was admitted to probate in the Baldwin County Probate Court (“the probate court”) in October 2007, and letters testamentary were issued to Linowiecki. In January 2010, Linowiecki filed a petition for final settlement in the probate court. In March 2010, Nichols objected to the petition for final settlement on the ground that Linowiecki had failed to file an account and written evidence supporting the account, both of which, she said, are required to make a settlement of an administration, pursuant to § 43-2-502, Ala.Code 1975. On July 30, 2010, Nichols filed a petition to remove the proceedings regarding the administration of the estate from the probate court to the Baldwin Circuit Court (“the circuit court”). On August 12, 2010, the circuit court granted the petition, and the administration of the estate was removed from the probate court to the circuit court, where it was assigned civil action number CV-10-901437 (“the estate case”).

On December 15, 2010, Nichols filed a separate action in the circuit court alleging claims of negligence, fraud, suppression, and breach of fiduciary duty against Li-nowiecki in connection with his administration of the estate. That action against Linowiecki was assigned civil action number CV-10-902225 (“the civil action”). In May 2011, Nichols moved to consolidate the civil action and the estate case. On July 26, 2011, the circuit court entered an order stating that the civil action and the estate case were consolidated for the purposes of discovery and trial only. In October 2011, Linowiecki filed a counterclaim against Nichols in the civil action, alleging claims of unjust enrichment and money owed, and he sought an attorney fee and expenses pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975.

The trial of the consolidated actions was scheduled for March 2, 2012. On that day, the parties announced that they had reached a settlement, and the agreement was read into the record. On March 23, 2012, the circuit court entered judgments based on the agreement of the parties in each of the actions. The terms set forth in the judgments were identical. They provided, among other things, that Linow-iecki, as the personal representative of the estate, “is surcharged in the amount of $180,074.36 for failing to account for money received in his fiduciary capacity.” Li-nowiecki also was “surcharged” an attorney fee in an amount equal to 11% of the sales price of certain specified real property (“the property”) in Baldwin County. The judgments stated that Nichols and Linowiecki equally owned the property as tenants in common, and the property was to be sold as soon as possible. Linowiecki was awarded the right to occupy the property until April 13, 2012. The judgments provided that, while he was occupying the property, Linowiecki would be solely responsible for paying the cost of utilities, maintenance, and taxes. After Linowiecki vacated the property, the judgments said, Nichols and Linowiecki were each to pay half of those costs. Linowiecki was responsible for paying the mortgage on the property until the property was sold.

Also on March 23, 2012, Nichols filed a motion to compel compliance with the court’s “consent judgment and final order” of March 23, 2012, and seeking to have Linowiecki held in contempt.

On March 26, 2012, Linowiecki filed a motion to alter, amend, or vacate the judgments. Two days later, on March 28, 2012, he filed a suggestion of bankruptcy in both cases. That same day, the circuit court entered an order staying all pending matters in both cases. On May 17, 2012, Linowiecki’s bankruptcy petition was dismissed, and Nichols filed a motion to lift the stay and to set a hearing on her motion for contempt. Linowiecki requested that the stay be lifted on July 24, 2012, and on July 27, 2012, he filed an amended motion to alter, amend, or vacate the judgments of March 23, 2012. The circuit court entered an order purporting to grant Linowiecki’s motion to lift the stay on August 2, 2012. On that day, the circuit court also entered an order purporting to hold in abeyance Linowiecki’s motions to alter, amend, or vacate the judgments until after the sale of the real property that Linowiecki and Nichols owned jointly after Linda’s death. After that property sold, the circuit court said, all pending motions would be heard. Also on August 2, 2012, the circuit court appointed a real-estate agent for the purpose of selling Linda’s house, where Linowiecki had been living, as provided in the March 23 judgments.

On August 3, 2012, Linowiecki appealed to the Alabama Supreme Court from the judgments entered in both cases. Our supreme court transferred the appeals to this court pursuant to § 12-2-7(6), Ala. Code 1975. This court consolidated the appeals on August 21, 2012.

Linowiecki asserts that the circuit court erred in refusing to alter, amend, or vacate the March 23 judgments because, he said, they did not comply with the terms of the settlement the parties had reached. He argues that he “had a right to expect that the only terms embodied in the consent order in this case would be the terms upon which there was a meeting of the minds of the parties.” Specifically, Linowiecki challenges the language in the consent judgments that he says assigns fault to him and that “makes him responsible for insuring that all terms of the mortgage are complied with such that it does not go into default,” rather than simply making him responsible for making the mortgage payments. Linowiecki also says that, although the circuit court purported to certify the consent judgments as final pursuant to Rule 54(b), Ala. R. Civ. P., the parties did not make that a part of the agreement and that the court added that language “out of the blue.”

Before addressing Linowiecki’s arguments, we note that, as to the propriety of the Rule 54(b) certifications on the merits, that is, as opposed to Linowiecki’s contention that such certification was not a term of the parties’ settlement agreement,

“it is well settled that a judgment in equity need not decide all details of the matters between the parties to be a final judgment; instead, the judgment is final if ‘ “it ascertains and declares the rights of the parties and settles the equities.” ’ McCulloch v. Roberts, 290 Ala. 303, 305, 276 So.2d 425, 426 (1973) (quoting Carter v. Mitchell, 225 Ala. 287, 293, 142 So. 514, 519 (1932)). As explained in McCulloch, the determination of finality ‘ “is not controlled by the fact that the cause remains in fieri in respect to other matters.” ’ McCulloch, 290 Ala. at 305, 276 So.2d at 426 (quoting Carter, 225 Ala. at 293, 142 So. at 519). As further explained in Sexton v. Sexton, 280 Ala. 479, 482, 195 So.2d 531, 533 (1967):
“ ‘Equity decrees may be partly final and partly interlocutory. A decree which ascertains and declares the rights of the parties and settles the equities is a final decree, although it provides for further proceedings under the direction of the court in order to make the final decree effective, such decree is interlocutory and remains within the control of the court because as to such decree and further proceedings thereunder the cause remains in fieri.’
“This rule survived the merger of law and equity and the adoption of the Rules of Civil Procedure. Miles v. Bank of Heflin, 295 Ala. 286, 290, 328 So.2d 281, 284-85 (1976) (applying the rule set out in McCulloch to determine that a judgment in which the trial court ordered reference to a special master for certain determinations was, in fact, a final judgment that would support an appeal and discussing the application of Rule 53, Ala. R. Civ. P., and the fact that the merger of law and equity did not prevent application of the long-recognized rule that equity judgments may be final despite leaving other matters for later determination).”

Antoine v. Oxmoor Preservation/One, LLC, [Ms. 2100839, July 20, 2012] - So.3d -, - (Ala.Civ.App.2012).

In this case, the consent judgments declared the rights of the parties and settled the equities. The circuit court retained jurisdiction to conduct further proceedings to oversee the sale of the property, that is, to make the final judgments effective. Accordingly, we conclude that the consent judgments were final for purposes of appeal and that the Rule 54(b) certifications were unnecessary.

Additionally, we must address Nichols’s contention that the circuit court did not have jurisdiction to consider the arguments raised in Linowiecki’s amended motion to alter, amend, or vacate the consent judgments. Linowiecki’s original motion to alter, amend, or vacate asserted that the consent judgments contained language assigning blame, which, he says, was not part of the parties’ settlement agreement. The amended motion, filed on July 30, 2012, includes the other objections Linowiecki raises on appeal. Nichols contends that the original postjudgment motion, filed on March 26, 2012, was denied by operation of law on June 25, 2012. See supra note 3. Therefore, she says, the circuit court no longer had jurisdiction to consider the issues raised in the amended motion, filed more than one month after the original postjudgment motion had been deemed denied.

The parties disagree over the application of 11 U.S.C. § 108(c), which provides for extensions of deadlines in nonbankruptcy cases when bankruptcy stays have been lifted. Linowiecki argues that when he filed for bankruptcy on March 28, 2012, and the circuit court entered the stay pursuant to 11 U.S.C. § 362, the 90-day period in which the circuit court had jurisdiction to rule on his postjudgment motion pursuant to Rule 59.1, Ala. R. Civ. P., was suspended while his bankruptcy case was pending. The bankruptcy case was dismissed on May 17, 2012. Therefore, Li-nowiecki argues, the calculation of the 90-day period the postjudgment motion remained pending should be extended by the 51 days the bankruptcy case was active. Therefore, Linowiecki says that by his calculation, only six of the 90 days the circuit court had to rule on the postjudgment motion had passed at the time he filed the amended postjudgment motion on July 30, 2012, meaning the circuit court still had jurisdiction to consider the amended post-judgment motion.

On the other hand, Nichols argues that § 108(c) does not provide for the tolling of the 90-day period a postjudgment motion may remain pending; instead, she says, that statute imposes deadlines that would take affect if the time for ruling on the postjudgment motion had expired during the pendency of the bankruptcy action or less than 80 days after the dismissal of the bankruptcy action. She argues that because, under Rule 59.1, the 90-day period for ruling on Linowieeki’s postjudgment motion expired on June 25, 2012, which was more than 30 days after the bankruptcy case was dismissed, the time for ruling on the postjudgment motion was not affected by the bankruptcy stay.

Section 108, which is part of the Bankruptcy Code, provides, in relevant part:

“(c) ... if applicable nonbankruptcy law ... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor ... and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
“(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
“(2) 80 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim.”

The vast majority of caselaw discussing § 108(c) — whether from Alabama or from other jurisdictions — deals with the suspension of statutes of limitations in cases against debtors. Our research indicates that no Alabama appellate court has considered the issue whether § 108(c) acts as a tolling mechanism in the manner contemplated by Linowiecki in these cases. However, the jurisdictions that have considered the issue appear to have rejected Linow-iecki’s reading of § 108(c). Regarding the time in which a plaintiff may commence an action against a debtor after a bankruptcy stay has been lifted, the United States District Court for the Middle District of Alabama stated that § 108(c) “grant[ed] the plaintiff either the remainder of the statute of limitations, or thirty days after the plaintiff received Notice of Dismissal.” Wombles v. Hagans, (No. 3:12-cv-532-TFM, Nov. 14, 2012) (M.D.Ala.2012) (not published in F.Supp.2d). In other words, under Wombles, § 108(c) does not extend an applicable statute of limitations by the length of time a debtor is under bankruptcy protection. See also Thurman v. Tafoya, 895 P.2d 1050, 1054-55 (Colo.1995).

The United States Court of Appeals for the Second Circuit has held:

“Commencing with the plain meaning, we observe that by its terms § 108(c) does not provide for tolling of any externally imposed time bars, such as those found in the two maritime statutes of limitations. The bankruptcy section only calls for applicable time deadlines to be extended for 30 days after notice of the termination of a bankruptcy stay, if any such deadline would have fallen on an earlier date.”

Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1073 (2d Cir.1993).

In discussing the application of § 108(c) to a postjudgment deadline, a Texas appellate court wrote:

“By its express terms, section 108(c) tolls no time limits, but provides only for some deadlines to be extended for 30 days after notice of the termination of a bankruptcy stay. [§ 108(c) ]. Beyond this, a time period may be further suspended only if mandated by other federal or state law incorporated through section 108(c). Section 108(c) thereby anticipates and provides for the expiration of periods for commencing or continuing civil actions during bankruptcy stays; and an interpretation of that section as tolling such periods would render its 30 day extension of time largely meaningless. See Thurman v. Tafoya, 895 P.2d 1050, 1056 (Colo.1995). Because Carol has cited, and we have found, no authority that section 108(c) tolls our post-judgment or appellate timetables, and because other Texas appeals courts have held that section 108(c) does not do so (but provides only a residuary 30-day extension of time), we have no basis to conclude otherwise.
“In this case, from the time the bankruptcy petition was filed in November of 1996 until the stay was lifted on March 28, 1997, all remaining post-judgment time periods (relevant to this appeal) had expired. When the stay was then lifted, section 108(c)(2) gave Carol another thirty days (until April 27, 1997) to either perfect her appeal or take such other action to continue the lawsuit as for which the time period had not expired on November 5, 1996 when the stay commenced. Because she failed to take any such action within that 30 day period, her subsequent filings in the trial court did not extend the time for perfecting appeal, and her notice of appeal was not timely and did not invoke the jurisdiction of the Corpus Christi Court of Appeals.”

Gantt v. Gantt, 208 S.W.3d 27, 30-31 (Tex.App.2006) (footnotes omitted).

Linowieeki has cited no authority to support his reading of § 108(c), and our research has not disclosed any authority tending to support Linowiecki’s position. Based on the caselaw cited above, we agree with Nichols that § 108(c) did not provide the circuit court with an additional 51 days in which to rule on Linowiecki’s postjudgment motion before that motion was deemed denied by operation of law. The bankruptcy stay did not toll the 90-day period in which the circuit court properly could consider Linowiecki’s original postjudgment motion. Instead, pursuant to § 108(c), the 90-day period in which the circuit court could consider the post-judgment motion expired on either the date it would naturally expire — in this case, June 25, 2012 (see supra note 3) — or 30 days after notice that the bankruptcy case had been dismissed, whichever came later. The record indicates that the parties received that notice on May 17, 2012; 30 days later would have been Saturday, June 16, 2012. Because the natural expiration of the Rule 59.1 90-day period was later than the 30-day period allowed by § 108(c), Linowiecki’s bankruptcy stay did not confer on the circuit court any additional time in which to consider the post-judgment motion before it was deemed denied as a matter of law on June 25, 2012. Accordingly, we agree with Nichols that the circuit court was without jurisdiction to consider the amended motion to alter, amend, or vacate the consent judgments. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426, 428 (Ala.1983) (“[T]he trial court has discretion to allow an amendment to a motion for new trial to state an additional ground after thirty days from the final judgment, if the original motion was timely filed and is still before the court when the amendment is offered.” (some emphasis added)). Therefore, we will not consider the issues that were raised only in the amended motion that are now argued before this court.

As mentioned above, in the original motion to alter, amend, or vacate the consent judgments, Linowiecki asserted that the consent judgments improperly “insinuate[d]” that each was a “judgment for negligence, wantonness, intentional breach of duty, fraud, suppression and sale for division.” On appeal, Linowiecki argues that, in entering the consent judgments, the circuit court improperly assigned fault to him and improperly entered the judgments “in favor of’ Nichols. In his brief to this court, Linowiecki states, “[cjontrary to the settlement agreement, the [consent] order speaks in terms of judgments, immediate executions issuing!,] and contempt. The settlement agreement in its totality in no way envisioned such actions.” Instead, Li-nowiecki says, the parties’ agreement did not include an admission of liability by either party.

The introductory paragraph in each of the consent judgments, which are identical, includes language stating that the judgment was being entered “in favor of [Nichols] and against [Linowiecki].” The record indicates that when the parties informed the circuit court that they had “reached an agreement for a consent order to be entered,” the first item Nichols’s attorney recited for the record provided:

“The parties have agreed that there -will be a surcharge entered against [Linow-iecki] as the personal representative of the estate of the decedent in the amount of $180,074.35....”

(Emphasis added.)

The first numbered paragraph in each of the consent judgments states that Linow-iecki, as the personal representative of the estate, “is surcharged in the amount of $180,074.36 for failing to account for money in his fiduciary capacity.” As Nichols points out, Black’s Law Dictionary defines “surcharge” as “[t]he amount that a court may charge a fiduciary that has breached its duty.” Black’s Law Dictionary 1579 (9th ed.2009).

Linowiecki cites authority for the general proposition that a consent order embodies an agreement of the parties and that a trial court cannot alter the terms of the parties’ agreement. However, he cites no authority, and makes no legal argument, regarding how the language used in the consent judgments, i.e., stating that the judgments were entered in favor of Nichols and against Linowiecki, alters the agreement that the parties reached and recited for the record.

“Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” ’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008).

There would be no basis for the $180,074.35 surcharge against Linowiecki if he had not failed to carry out his fiduciary duties as the personal representative of the estate. Additionally, we see no substantive difference, and Linowiecki does not explain a difference, between the language recited at the hearing indicating that the parties had agreed that there would be a “surcharge entered against” Linowiecki and the circuit court’s statement that the judgments were against Li-nowiecki. Thus, we conclude that Linow-iecki has failed to demonstrate that the circuit court erred in stating that the consent judgments were entered in favor of Nichols and against Linowiecki.

Moreover, in reviewing the transcript of the proceedings during which the agreement was read into the record, both parties twice specified that the agreement was “to be entered as a consent order.” As a practical matter, we note that it is common practice that, when a settlement agreement is reached, the parties will prepare a settlement agreement and a release from future litigation arising out of the facts made the basis of the action and will ask the court to dismiss the action being litigated. The settlement agreement often will include a provision stating that it is being entered because of the parties’ desire to foreclose further litigation but that neither party admits to liability. Under such circumstances, the only judgment the trial court enters is one dismissing the action.

In this case, however, the parties did not simply reach a settlement and ask the circuit court to dismiss the actions. Instead, they expressly requested that consent judgments be entered in the cases. Linowiecki failed to provide this court with any basis or authority for his apparent belief that a consent judgment should not be capable of execution or that the parties should not be held in contempt for failing to abide by its terms.

“A consent order ‘embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.’ Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992).”

Austin v. Alabama Check Cashers Ass’n, 936 So.2d 1014, 1038 (Ala.2005) (emphasis added). Rule 70A(a)(2)(D), Ala. R. Civ. P., defines civil contempt as the “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” Accordingly, we conclude that the circuit court did not disregard the intent of the parties when it included language in the consent judgments that spoke “in terms of judgments, immediate executions issuing!,] and contempt.”

Linowiecki also argues on appeal that, because the circuit court ruled on August 2, 2012, that it was holding Linowiecki’s postjudgment motions in “abeyance,” those motions are still pending. However, for the reasons discussed above, the original motion to alter, amend, or vacate the consent judgment was deemed denied by operation of law on June 25, 2012. The amended motion to alter, amend, or vacate the consent judgments was filed after the initial motion had been deemed denied; therefore, it was untimely, and the circuit court did not have jurisdiction to consider it. See Alabama Farm Bureau Mut. Cas. Ins. Co., supra.

Because the circuit court did not have jurisdiction over either of Linowiecki’s postjudgment motions when it entered the August 2, 2012, order holding those motions in abeyance, that order is void. See J.B. v. A.B., 888 So.2d 528, 532 (Ala.Civ.App.2004) (“An order entered by a trial court without jurisdiction is a nullity.”). Linowiecki’s assertion that his post-judgment motions were pending before the circuit court at the time his appellate brief was filed is without merit.

For the reasons set forth above, the consent judgments are due to be affirmed.

2111110 — AFFIRMED.

2111111 — AFFIRMED.

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

      . Section 43-2-502 provides:
      "In making settlements of an administration, the executor or administrator must proceed as follows:
      "He must make out an account between himself and the estate he represents, charging himself with all the assets of the deceased which have come into his possession, except the lands, and crediting himself with all the credits he is by law entitled to; which account, verified by his oath, must be filed with the judge of probate of the court having jurisdiction.
      "With such account he must also file written evidence in his possession, on which he relies to sustain the credit side of such account, which may consist of an affidavit or any other legal evidence, in the discretion of the executor or administrator.
      "He must, at the same time, file a statement, on oath, of the names of the heirs and legatees of such estate, specifying particularly which are under the age of 19 years; and, if any of them are persons of unsound mind, it must be stated; but if the names, ages or condition of such heirs or legatees are unknown and they reside out of the state, they may be made parties as unknown heirs or legatees.
      "He must state the sum of funds of the estate which he has used for his own benefit, the time and the profit resulting from such use, if over legal interest, or, if he has not so used any of the funds of the estate for his own benefit, he must expressly deny on oath that he has so used such funds, and any party interested in the estate may contest the same.
      "He shall be allowed all reasonable premiums paid on his bond as administrator or executor.”

      . Pursuant to 11 U.S.C. § 362(c), a bankruptcy stay remains in effect until the case in bankruptcy is closed or dismissed, among other things.

      . In her brief, Nichols states that Linowiecki did not appeal from the civil action, as opposed to the estate case, until August 13, 2012. Nichols contends that Linowiecki’s original postjudgment motion was denied by operation of law on June 25, 2012 (June 24, 2012, the 90th day following the filing of the postjudgment motion was a Sunday, see Bradley v. Bauldree, 101 So.3d 221, 225 n. 6 (Ala.Civ.App.2012)) and that, therefore, Linow-iecki had until August 6, 2012, to timely file his appeal of the civil action. However, the State Judicial Information System case-action summaries in both cases indicate that both were appealed on August 3, 2012. In addition, the notice of appeal contained in the record indicates that both the civil action and the estate case were appealed on August 3, 2012. We find no evidence in the record that the notice of appeal in the civil action was filed on August 13, 2012. We note that, in her brief on appeal, Nichols does not provide a citation to the record for her assertion that Linowiecki's notice of appeal in the civil action was filed on August 13, 2012. The record does not support Nichols's contention that the appeal of the civil action was untimely-

      . We are not able to discern how Linowiecki determined that only six days had elapsed.

      . In his reply brief, Linowieeki claims that the original postjudgment motion states that his attorney was in the process of revising the proposed consent judgments, prepared by Nichols’s attorney, to make them consistent with the settlement agreement when the circuit court entered the "proposed orders.” He argues that that statement encompasses his challenges to the consent judgments that he raised in the amended postjudgment motion. We disagree. A review of the original post-judgment motion shows that the only basis for error Linowiecki raised in that motion was that the consent judgments "insinuate[d]” fault.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Ex parte Billy J. SHEFFIELD II. (In re Rupinder Kaur v. Ajit Singh).
    2110913.
    Court of Civil Appeals of Alabama.
    Feb. 15, 2013.
    Billy J. Sheffield II, Dothan.
   DONALDSON, Judge.

Billy J. Sheffield II appeals from a judgment of the Henry Circuit Court (“the trial court”) that found him in contempt for failing to appear at a scheduled hearing. Sheffield is an attorney who was hired by Rupinder Kaur to represent her in a divorce action. The record on appeal indicates that Ajit Singh, Kaur’s former husband, filed a motion in the trial court to release his passport after the conclusion of the divorce proceedings. Kaur, through Sheffield, filed an objection. On May 22, 2012, the trial court scheduled a hearing on Singh’s motion to be conducted on June 5, 2012, at 9:00 a.m. It is undisputed that Sheffield did not appear at that hearing. On June 5, 2012, at 10:37 a.m., Sheffield filed a motion to withdraw as counsel for Kaur.

On June 18, 2012, the trial court entered a judgment finding Sheffield in contempt “for his failure to appear at a scheduled hearing.” The trial court fined Sheffield $100 and costs of court, if any, and stated that Sheffield could purge himself of contempt upon payment of' those sums. On the same day, Sheffield filed a motion to set aside the contempt judgment, arguing that the trial court had not complied with Rule 70A, Ala. R. Civ. P., and that he had not been given an opportunity to be heard. Sheffield requested a hearing on his motion. Also on June 18, 2012, the trial court granted Sheffield’s motion to withdraw as Kaur’s attorney, and it denied Sheffield’s motion to set aside the contempt judgment. Sheffield filed a timely notice of appeal on June 20, 2012.

On appeal, Sheffield argues that the trial court erred by finding him in contempt. The trial court’s judgment does not specifically state whether Sheffield was found guilty of civil contempt or criminal contempt. Criminal contempt is defined in Rule 70A(a)(2)(C), Ala. R. Civ. P„ as:

“(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court’s presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or
“(ii) Willful disobedience or resistance of any person to a court’s lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.”

Our review of the record and the trial court’s judgment leads us to conclude that the trial court found Sheffield guilty of criminal contempt. Compare Rule 70A(a)(2)(D), Ala. R. Civ. P. (defining “civil contempt” as “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with”). See also Ingram v. Allred, 119 So.3d 1176, 1177-78 (Ala.Civ.App.2013) (concluding that an attorney’s failure to appear at a scheduled hearing was criminal contempt); Ex parte Baker, 623 So.2d 304, 306 (Ala.Civ.App.1993) (trial court’s contempt sanction against attorney for failing to appear was to “impress upon [the attorney] the importance of respecting a court order and to impose punishment”).

The trial court’s judgment also does not state whether the trial court found Sheffield guilty of direct contempt or constructive contempt. “Such a determination is important because the procedure for finding a party in direct contempt is different from the procedure required before a party can be found guilty of constructive contempt.” Dreading v. Dreading, 84 So.3d 935, 937 (Ala.Civ.App.2011). Rule 70A(a)(2), Ala. R. Civ. P., defines “direct contempt” and “constructive contempt” as follows:

“(A) ‘Direct contempt’ means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.
“(B) ‘Constructive contempt’ means any criminal or civil contempt other than a direct contempt.”

Rule 70A(b) and (c), Ala. R. Civ. P., provide the procedure for finding a party guilty of either direct contempt or constructive contempt:

“(b) Summary Disposition of Direct Contempt Proceedings.
“(1) Finding. The court may summarily find in contempt any person who commits a direct contempt, immediately notifying the person of its finding. The judge shall cause to be prepared a written order reciting the grounds for the finding, including a statement that the judge observed the conduct constituting the contempt. The order shall be signed by the judge and entered of record.
“(2) Mitigation. The court shall apprise the person of the specific conduct on which the finding is based and give that person a reasonable opportunity to present evidence or argument regarding excusing or mitigating circumstances. No decision concerning the punishment to be imposed shall be made during the course of the proceeding out of which the contempt arises, unless prompt punishment is imperative to achieve immediate vindication of the court’s dignity and authority.
“(3) Sentence. Unless it is pronounced immediately under subsections (1) and (2) above, sentence shall be pronounced in open court, in the presence of the contemnor, within seven (7) days after the completion of the proceeding out of which the contempt arose.
“(c) Disposition of Constructive Contempt Proceedings.
“(1) Initiation of Action. A proceeding based on constructive contempt, whether criminal or civil, shall be subject to the rules of civil procedure. The proceeding shall be initiated by the filing of a petition seeking a finding of contempt (the petition may be in the form of a counterclaim or cross-claim authorized under Rule 13[, Ala.R.Civ.P.]). The petition shall provide the alleged contemnor with notice of the essential facts constituting the alleged contemptuous conduct.
“(2) Issuance of Process and Notice. Upon the filing of a contempt petition, the clerk shall issue process in accordance with these rules, unless the petition is initiated by a counterclaim or cross-claim authorized under Rule 13. In any case, the person against whom the petition is directed shall be notified (1) of the time and place for the hearing on the petition and (2) that failure to appear at the hearing may result in the issuance of a writ of arrest pursuant to Rule 70A(d), to compel the presence of the alleged contemnor.
“(3) Right to Counsel. In actions involving criminal contempt, upon the request of the alleged contemnor and proof of indigence, counsel shall be appointed to represent the alleged contemnor. This right to appointed counsel, once asserted, may be subsequently waived by the alleged contem-nor in writing or on the record, after the court has ascertained that the alleged contemnor knowingly, intelligently, and voluntarily desires to forgo the right to counsel. The court may, in its discretion, appoint advisory counsel to advise the alleged contem-nor.”

There is no indication in the record that the contempt proceeding was initiated by the filing of a petition, that the trial-court clerk issued process for such a petition in accordance with the Rules of Civil Procedure, or that a hearing on such a petition was conducted. Because the procedure set forth in Rule 70A(c) was not followed, the trial court must have found Sheffield in direct contempt in order for the contempt judgment to be valid. See Dreading, 84 So.3d at 939.

Sheffield, however, argues that his failure to appear at the June 5, 2012, hearing could not be construed as a direct contempt. In support of his argument, Sheffield cites Quick v. State, 699 So.2d 1300, 1301-02 (Ala.Crim.App.1997). In Quick, the Alabama Court of Criminal Appeals held that an attorney’s failure to appear at a scheduled hearing is constructive, not direct, contempt. In reaching that determination, the Court of Criminal Appeals reasoned as follows:

“The Alabama Supreme Court stated, in State v. Thomas, 550 So.2d 1067 (Ala.1989):
“ ‘Direct contempts are those committed in the judge’s presence, where all of the essential elements of the contempt are under the eye of the court, and are actually observed by the court
“ ‘If some of the essential elements of contempt are not personally observed by the judge, the contempt is indirect. Tetter v. State, 358 So.2d 1046 (Ala.1978). An indirect contempt is committed outside the presence of the court and is characterized by the act of disobeying the court’s orders ....’
550 So.2d at 1072 (emphasis added).
“While our research has not revealed a case specifically addressing whether the failure of an attorney to appear at a hearing is considered a direct or a constructive contempt, the Alabama Supreme Court, in In re Tarpley, 293 Ala. 137, 300 So.2d 409, 413 (1974), addressed this issue when an ‘on-call’ witness, a doctor, failed to appear as ordered by subpoena. In Tarpley, the Court held:
“ ‘Now we must consider whether the failure to appear constituted direct or constructive contempt. The Court of Criminal Appeals utilized Dangel, Contempt, 7, Section 14, to characterize disobedience of process as an indirect contempt as follows:
“ ‘ “ ‘A direct contempt consists of disorderly or insolent behavior committed during the session of the court, and in its immediate view and presence, such as the unlawful and willful refusal of any person to be sworn as a witness, or the refusal to answer any legal or proper question, or the giving of false testimony, or any breach of the peace, noise or disturbance so near to the court as to interrupt its proceedings. An indirect contempt, sometimes called a “constructive contempt,” may consist of willful disobedience of any process or order lawfully issued or made by the court and resistance willfully offered by any person to the execution of a lawful order or process of the court.’ ” (Emphasis in original).
“ ‘In Alabama direct contempts are denoted as those contempts committed within the presence of the court, or so near the court as to interrupt its proceedings. Ex [p]arte Hennies, 33 Ala.App. 377, 34 So.2d 22 (1948). Summary procedures, designed to punish direct contempt, are utilized to fill the need for immediate penal vindication of the dignity of the court. Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). We agree with the holding of the Court of Criminal Appeals, however, that failure to appear as a witness pursuant to an “on call” subpoena is punishable as constructive contempt of the court.’
293 Ala. at 141-42, 300 So.2d at 413 (emphasis in original; footnote omitted).
“In an opinion issued by the clerk of the Alabama Supreme Court, it was stated: ‘In Alabama, disobedience to the order of a court is an indirect contempt, whereas, contempt committed within the presence or so near the court as to interrupt its proceedings is a direct contempt.’ Opinion of the Clerk, 345 So.2d 1338, 1339 (Ala.1977).
“Furthermore, in deciding whether an action should be considered direct or constructive, this Court is required to follow the presumption set forth by the Alabama Supreme Court in International Brotherhood of Electrical Workers, Local 136 v. Davis Constructors & Engineers, Inc., 334 So.2d 892 (Ala.1976). In Davis, the Court held:
“ ‘Where there is doubt as to the character of the alleged contempt, that is, whether it is direct, or constructive, the doubt should be resolved in favor of its being constructive, especially where the contempt charged is a criminal contempt.’
334 So.2d at 896.
“Because the contempt of court charge was based on the appellant’s failure to appear at his client’s sentencing hearing, the trial judge should have charged him with constructive contempt and followed the guidelines set forth in Rule 33.3, Ala. R.Crim. P., so as to afford the appellant his right to due process of law, as guaranteed by the Alabama and Federal constitutions.
“ ‘The United States Supreme Court has held that indirect contempt, not committed in open court, requires that the accused be afforded due process of law; that is, notice of the charge and an opportunity to be heard before the court. Harris v. United States, [382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965) ]; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925). This question has also been spoken to in Alabama. In Ex [p]arte Bankhead, 200 Ala. 102, 75 So. 478 (1917), the Court held that in order to punish for constructive contempt the offending party should have notice of the nature and character of the charge and be given an opportunity to answer. The Court made its most thorough analysis of a constructive contempt proceeding in Hunter v. State, 251 Ala. 11, 37 So.2d 276 (1948), and again held that the accused is entitled to due process that requires that he be advised of the charges and have a reasonable opportunity to meet them. Respondent in this case was entitled to fair notice of the charge against him.’
“Tarpley, 300 So.2d at 413.”

699 So.2d at 1301-03.

The failure of an attorney to appear for a duly scheduled hearing or trial can constitute an act of contempt and subject the attorney to sanctions. See, e.g., Ex parte Baker, supra. We agree with the reasoning of the Court of Criminal Appeals, however, that an attorney’s failure to appear at a scheduled hearing generally subjects that attorney to a finding of constructive contempt, not direct contempt. See Quick, supra. Accordingly, the procedures set forth in Rule 70A(c) should have been followed before the trial court found Sheffield in contempt. We reverse the judgment finding Sheffield in contempt, and we remand the cause to the trial court for further proceedings, if any, that may be initiated.

REVERSED AND REMANDED.

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

      . On June 14, 2012, Sheffield purported to file a second postjudgment motion seeking the same relief sought in his first postjudgment motion; that motion was denied by the trial court on June 19, 2012. However, "[sjucces-sive post judgment motions by the same party, seeking essentially the same relief, are not allowed,” Gold Kist, Inc. v. Griffin, 659 So.2d 626, 627 (Ala.Civ.App.1994) (citing Ex parte Dowling, 477 So.2d 400 (Ala.1985)), and a trial court’s ruling on an improper successive postjudgment motion is void. Washington v. Washington, 24 So.3d 1126, 1138 (Ala.Civ.App.2009).

      . We note that the definitions of "direct contempt” and "constructive contempt” found in Rule 33.1(b)(1) and (2), Ala. R.Crim. P., are identical to the definitions of those terms found in Rule 70A(a)(2)(c)(i) and (ii), quoted above.

      3. Rule 33.3 addresses the procedure to be followed in all contempt cases arising from criminal proceedings except direct-contempt cases that are resolved by summary disposition, which are addressed in Rule 33.2, Ala. R.Crim. P. Rule 33.3(a), Ala. R.Crim. P., states, in pertinent part, that “no person shall be found in contempt without a hearing held after a citation of the charge is given.”


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    Bobby Joe BEARDEN III v. Angel MURPHY.
    2110966.
    Court of Civil Appeals of Alabama.
    Feb. 15, 2013.

      Fred W. Teague, Ashville, for appellant.
    Evan W. Smith, Centre, for appellee.
   THOMPSON, Presiding Judge.

Bobby Joe Bearden III (“the father”) appeals from a judgment awarding Angel Murphy (“the mother”) custody of the parties’ child (“the child”).

On November 30, 2009, the father filed a complaint seeking a divorce, to sever what he asserted was the parties’ common-law marriage, and seeking custody of the child. The mother answered, claiming that the parties did not have a common-law marriage. She requested a dismissal of the father’s action. It is obvious from the record that the parties have an acrimonious relationship. Before the father filed his complaint in this action, the parties sought competing orders of protection from abuse. Since the filing of the complaint, the father, who was awarded temporary custody of the child, has alleged that the mother physically abused the child and has accused the mother of using illegal drugs. He also obtained orders requiring that the mother’s visitation with the child be supervised and terminating the mother’s right to have overnight visitation. The mother sought to have the father held in contempt at least twice and sought court intervention to have unsupervised visitation and holiday visitation with the child. The hearing on this matter was held on May 26, 2011, and February 10, 2012. On the first day of the hearing, the parties stipulated that there was insufficient proof that a common-law marriage existed, and the hearing went forward on the issue of custody and other related matters. On April 24, 2012, the trial court entered an order finding that the father had failed to prove that the parties were ever married and adjudicating the paternity of the child. The order went on to say:

“3. That the parties shall immediately meet and resolve the issues of custody and placement of [the child] and of child support in order to avoid a dismissal of this case.
“4. That this case shall be CLOSED forty-two (42) days from the date of this Order, at which time the custody of the child shall revert to the mother, unless the parties e-file a settlement agreement settling all of the issues between them, along with a proposed final order, within that time period.”

(Emphasis and capitalization in the original.)

The father filed a motion to alter, amend, or vacate the order. The trial court denied the motion, and the father timely appealed.

Neither party has addressed this court’s jurisdiction over this appeal as it relates to the finality of the trial court’s April 24, 2012, order from which this appeal is taken; however, jurisdictional issues are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997). “[T]he question whether a judgment is final is a jurisdictional question.” Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala.Civ.App.2002). “Generally, an appeal may be taken only from a final judgment. Ala.Code 1975, § 12-22-2. A final judgment is ‘one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.’ Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990).” Warren v. Warren, 94 So.3d 392, 395 (Ala.Civ.App.2012).

This court has held that a lower court’s reservation of jurisdiction to decide the issue of child support pending the occurrence of a specific event, such as submission of the appropriate child-support forms, renders a judgment nonfinal, see Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007), and that a lower court’s failure to actually determine an amount of child support owed by a party also renders a judgment nonfinal, see Turner v. Turner, 883 So.2d 233, 234 (Ala.Civ.App.2003); and Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001).

In this case, the trial court’s order does not ascertain and declare the rights of the parties on any issues related to child custody. The trial court ordered the parties to reach a settlement on the issues of custody and child support or the case would be dismissed; however, the record demonstrates that, during the two and a half years the litigation in this matter was pending, the parties were unable to agree on such routine matters as taking the child to T-ball practice. The likelihood of the parties’ settling the major issues in this case is negligible. Although the order states that if the parties are unable to reach a custody settlement within 42 days, then custody of the child would “revert” to the mother, the trial court made no factual findings and offered no explanation for the apparent award of custody. Moreover, the judgment is silent as to whether the mother is to have sole physical custody only, or whether the mother is to have both legal and physical custody, at the end of 42 days. Furthermore, the trial court did not determine the parties’ respective child-support obligations and related issues; for example, the court failed to determine which party would be responsible for maintaining the child’s health-insurance coverage.

We note that the trial court also did not establish a visitation schedule for the noncustodial parent, apparently relying on the parties to establish and implement that as well. Although a failure to include a visitation schedule does not result in a nonfinal judgment for purposes of appeal, leaving visitation to the sole discretion of the custodial parent does require reversal. It is well settled that, although this court recognizes that visitation is a matter left to the sound discretion of the trial court, such discretion is not unbounded. In Pratt v. Pratt, 56 So.3d 638, 644 (Ala.Civ.App.2010), this court held that “[t]he propriety of [a visitation] judgment depends on whether the noncustodial parent has a sufficient, specified visitation schedule to rely upon, independent of the custodial parent’s discretion.” We also noted that “[t]his court ... has affirmed awards of unspecified visitation based on the agreement of the parties when the trial court also provides that, in the event of disagreement, ‘standard visitation’ or some other specified visitation would be imposed.” Id.

Because the trial court did not dispose of all the issues before it, the order is nonfinal, and we must dismiss the father’s appeal. See Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007).

APPEAL DISMISSED.

PITTMAN and DONALDSON, JJ„ concur.

MOORE, J., concurs specially, which THOMAS, J., joins.

MOORE, Judge,

concurring specially.

I concur in all respects with the main opinion’s dismissal of the appeal due to the absence of a final judgment, but I write specially to address two other aspects of the order entered by the trial court on April 25, 2012, that I believe should be noted for the guidance of the trial court.

First, the trial court’s order provides, in pertinent part:

“3. That the parties shall immediately meet and resolve the issues of custody and placement of [the child] and of child support in order to avoid a dismissal of this case.”

Although a trial court may order the parties before it to mediate their dispute, “[a] court cannot ‘force’ settlements upon parties.” Henry v. Prusak, 229 Mich.App. 162, 170, 582 N.W.2d 193, 196 (1998). When parties before a trial court are unable to resolve their differences, it is the duty of the trial court to resolve the issues properly brought before it. Here, the trial court eschewed its duty by effectively dismissing the case solely because the parties did not settle their issues themselves, thereby depriving the parties of meaningful access to the judicial system.

Second, the trial court’s order provides:

“4. That this case shall be CLOSED forty-two (42) days from the date of this Order, at which time the custody of the child shall revert to the mother, unless the parties e-file a settlement agreement settling all of the issues between them, along with a proposed final order, within that time period.”

(Emphasis and capitalization in the original.) That language, however, amounts to a reversionary clause, which Alabama law disfavors. In Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990), this court addressed a custody provision in a divorce judgment that awarded custody of the parties’ child to one parent, but ordered that physical custody of the child would revert to the other parent if certain specified events occurred in the future. 577 So.2d at 463. In addressing that provision, this court stated:

“We find ... the custodial reversionary clause in this instance to be of no effect because it is premised on a mere speculation of what the best interests of the children may be at a future date. We have found that an agreement of the parents is conclusive of the children’s best interests only as long as the status of the parties at the time remains unchanged. Means v. Means, 512 So.2d 1386 (Ala.Civ.App.1987). The trial court’s reliance on the operative language of the reversionary clause in changing the custodial arrangement in this instance is misplaced.”

Id.

Although, in the present case, paragraph 4 of the trial court’s order envisions a change in custody occurring only 42 days after the entry of that order, I conclude that it amounts to an impermissible rever-sionary clause. An award of custody should be based on the parties’ current circumstances rather than speculation as to what those circumstances might be in the future. Id.

Moreover, I note that the trial court vested custody with the mother without any determination as to whether that custody arrangement served the best interests of the child. A circuit court exercising the traditional powers of a chancery court, such as the trial court in this case, has “no more important or sacred duty to perform than to look after the proper care and custody of minors coming within their jurisdiction.” Murphree v. Hanson, 197 Ala. 246, 256, 72 So. 437, 441 (1916). A trial court may enter a judgment granting one parent custody of a child only after conducting a hearing and determining that such custody serves the best interests of the child, see Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939), because it is the child’s interests that are primarily at stake. See Montgomery v. Hughes, 4 Ala.App. 245, 58 So. 113 (1911). A trial court fails in its duty to the child by awarding custody to one parent or the other without determining the effect that custody arrangement will have on the child. See generally S.A.N. v. S.E.N., 995 So.2d 175 (Ala.Civ.App.2008) (visitation case in which trial court awarded visitation to father without considering if visitation served best interests of children).

In this case, the trial court received evidence as to the custody issue, which evidence was heavily conflicting in nature, but it did not resolve that issue. The trial court simply decided that, if the parties could not agree between themselves who should have custody of the child, the mother would automatically be given custody at the end of 42 days, without finding that the mother’s having custody would serve the best interests of the child. It appears to me that the trial court based its custody order primarily, if not exclusively, on convenience to the court and not on the best interests of the child. On remand, the trial court should reconsider its custody determination in accordance with Alabama law.

THOMAS, J., concurs.

      . The record does not indicate why there was a' delay of more than eight months before the hearing was resumed.