Appellate Record Must Contain Direct and Unequivocal Agreement To Extend Time To Rule On Postjudgment Motion


Okeke v. Okumu, [Ms. 2190668, Dec. 4, 2020], ___ So. 3d ___ (Ala. Civ. App. 2020). The court (Thompson, J.; Moore, Donaldson, Edwards, and Hanson, JJ., concur) dismisses the husband’s appeal from a judgment of divorce because the record did not demonstrate that the parties had consented in “direct and unequivocal terms” to extend the 90-day period for ruling on the husband’s postjudgment motion. Ms. *4. While noting that the wife attached to her letter brief in the Supreme Court a copy of a motion purporting to extend the 90-day period, the court reiterated “‘attachments to briefs are not considered part of the record and therefore cannot be considered on appeal.’” Ms. *3, quoting Morrow v. State, 928 So. 2d 315, 320 n. 5 (Ala. Crim. App. 2004)(some internal quotation marks omitted).

The court also notes it is the appellant’s duty to check the record to ensure that a complete record is presented on appeal and that “‘[a]n error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal.’ Martin v. Martin, 656 So. 2d 846,848 (Ala. Civ. App. 1995).’ Brady v. State Pilotage Comm’n, 208 So. 3d 1136, 1141 (Ala. Civ. App. 2015).” Ms. *4.

The court also rejects the husband’s reliance on an amendment to Rule 59.1 providing that “‘[c]onsent to extend the time for a hearing on the postjudgment motion beyond the 90 days is deemed to include consent to extend the time for the trial court to rule on and dispose of the postjudgment motion.’” Ms. *7. The court notes this “language is contained in an amendment to Rule 59.1 that became effective October 1, 2020, long after the time in which the trial court had to rule on the postjudgment motion in this case had expired.” Ibid.

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