Summary
declaring void all actions taken by the trial court after the denial of a party's Rule 59 motion, on the basis that the party's later motion to set aside the order denying the Rule 59 motion was in reality an improper "motion to reconsider" the denial
Summary of this case from Schwadron v. SchwadronOpinion
AV93000083.
March 11, 1994.
Appeal from Macon Circuit Court, Howard F. Bryan IV, J.
Calvin M. Whitesell, Jr. of Calvin M. Whitesell, Jr., P.C., Montgomery, for appellant.
Jock M. Smith, Tuskegee Institute, for appellee.
This is a divorce case.
In January 1992, Millie Dumas Foster (wife), filed a complaint seeking a divorce from William Foster (husband). Ultimately, the trial court entered a final divorce judgment in January 1993. The husband's timely post-judgment motion was denied February 1, 1993. He then filed a second post-judgment motion on February 18, 1993, again seeking review of the custody provisions of the divorce judgment, reconsideration of portions of the property division, and, for the first time, alleging a material change warranting a change in custody. In essence, the successive post-judgment motion sought reconsideration of the same matters considered and denied in the first post-judgment motion, and an attempted modification.
Review of the denial of a post-judgment motion is by appeal. Ex parte Dowling, 477 So.2d 400 (Ala. 1985). Although in his second post-judgment motion, the husband attempted to state his request as one made "pursuant to Rule 55, 59 and 60," A.R.Civ.P., the relief sought reveals that he is simply attempting to have a second review of the divorce judgment and to have the trial court reconsider its previous denial of his post-judgment motion. Post v. Duffy, 603 So.2d 1070 (Ala.Civ.App. 1992); see also Cornelius v. Green, 521 So.2d 942 (Ala. 1988). Even if the second post-judgment motion could be considered as one pursuant to Rule 60, A.R.Civ.P., such is not a substitute for an appeal, nor would it suspend the time for filing a notice of appeal. Post, supra. The husband's notice of appeal, filed in October 1993, was untimely, and this court is without jurisdiction. Rule 2(a)(1), A.R.App.P., Tri-State Auto Auction v. Crouch, 475 So.2d 877 (Ala.Civ.App. 1985).
APPEAL DISMISSED.
ROBERTSON, P.J., and YATES, J., concur.