The plaintiff/widow, Mittie Marie Posey, appeals from what she calls a denial of her family allowance claim. The family allowance provision of the Probate Code, Ala. Code 1975, §43-8-112, provides inter alia, "a reasonable allowance" from a decedent's estate for the decedent's "surviving spouse . . . whom the decedent was obligated to support . . . for [the spouse's] maintenance during the period of administration."

The pertinent facts of this case are undisputed.

Posey and her husband separated many months before his death. The husband's heirs are Posey, two surviving children *Page 1042 from a previous marriage, and a grandchild.

Posey claimed, and was granted in the trial court,¹ a $6,000 homestead allowance and a $3,500 personal property allowance, but was denied, according to the parties, a "family allowance."

The trial court's order, if it was based on findings fromore tenus evidence as to whether Posey met the statutory requirements for a family allowance, would be entitled to considerable deference. Browning v. Carpenter, 596 So.2d 906 (Ala. 1992) (stating that such a judgment will be upheld unless the trial court is "plainly and palpably wrong").

To be "entitled to a reasonable allowance" Posey would have to meet the requirements of § 43-8-112, — she must be a "surviving spouse . . . whom the decedent was obligated to support."

As to what is a "reasonable allowance," the commentary to § 43-8-112 states several factors that "should" be taken into account, but directs that "need" is relative to the particular facts of each case.²

In the present case, there have been no factual findings on the family allowance claim, nor does it appear that the trial court has considered the merits of the claim and decided it. There is no mention of it in the trial court's order.

It could be argued that the trial court denied this claim by implication, through the language of its order stating that "all claims not herein adjudicated are denied." Through this language, the trial court may be understood to say that the parties were denied relief as to any claim the court did not consider.

It is fundamental to the proper exercise of judicial authority that such authority not be exercised to render a decision that is res judicata as to a claim, absent a consideration of the merits of the claim. Because in this instance, it affirmatively appears that the trial court did not consider the merits of the family allowance claim, we consider it to be unresolved, despite the trial court's seeming denial of it; we hold that this claim was not resolved by the trial court, by implication or otherwise, and that it is still before the trial court for a resolution.

Related to this matter, we deny the defendants' motion to strike, as untimely, an amendment to the trial court's order unrelated to the matter we have discussed. This motion is based on the assumption that the amendment was to a final judgment and was untimely as a post-judgment action. As we have suggested, the trial court's order in this case was not a final judgment. Therefore, the premise of the motion is flawed and we need not consider it.

MOTION DENIED; APPEAL DISMISSED.

HORNSBY, C.J., and MADDOX, SHORES, ADAMS and HOUSTON, JJ., concur.

ALMON and INGRAM, JJ., dissent.

I respectfully dissent from the majority's opinion. I believe that the record shows that the issue of a family allowance was presented to the trial court and that the evidence supports the trial court's denial of a family allowance to Mittie Marie Posey, the widow. I also dissent as to the denial of the appellees' motion to strike the trial court's amended order; the motion to strike should have been granted, because the trial court had no jurisdiction to amend its order more than 90 days after the post-judgment motion was filed.

The law is settled that, in the absence of an order severing a claim or ordering a separate trial, "[a] judgment will bedeemed a final judgment on all issues pleaded and any claimswhich are not specifically disposed of in the judgment will bedeemed to have been rejected or denied." Poston v. Gaddis,372 So.2d 1099, 1101 (Ala. 1979) (emphasis added). In Poston, the basis for finding the order nonfinal was stronger than that in the present case. Gaddis sued Poston, alleging breach of a construction contract; Poston counterclaimed, alleging that Gaddis had not paid him all that he was owed on the contract. The jury returned a judgment in favor of Gaddis on the breach of contract claim. Although Poston argued that he had voluntarily dismissed the counterclaim, no order dismissing the counterclaim was entered in the record. Unlike this case, inPoston no evidence was admitted on the counterclaim; also, the jury was not instructed on the counterclaim. One of the issues on appeal in Poston was whether the order of the trial court was a final judgment for purposes of appeal when the record did not contain an order dismissing the counterclaim or a Rule 54(b), A.R.Civ.P., certificate. Despite the failure to specifically address the counterclaim, and even lacking any evidence and/or instructions to the jury on the counterclaim, this Court held that the order awarding money damages to Gaddis was a final judgment on all claims; Poston's counterclaim was deemed to have been denied and/or rejected.

In the present case, evidence was presented both for and against a family allowance for Mittie Marie. The trial court specifically stated that the order of February 14, 1992, disposed of all claims, stating that those claims not specifically adjudicated were denied. After the entry of this order, Mittie Marie filed a motion for new trial, asking the trial court to make a family allowance award. On June 10, 1992, this motion for new trial was denied by operation of law.

The record supports the trial court's decision not to award a family allowance to Mittie Marie. That decision is supported by evidence showing that months before her husband died Mittie Marie had moved out of the home she had shared with him and that he was not supporting her at the time of his death. Section 43-8-112, Ala. Code 1975, provides for a family allowance to be paid to "the surviving spouse and minor children whom the decedent was obligated to support and the children who were in fact being supported by him." Section43-8-112 also states that the amount of the family allowance award is to be set at "a reasonable allowance . . . for [the surviving widow's and children's] maintenance during the period of administration." Also, a surviving spouse may not be entitled to a family allowance when she was not living with the decedent at the time of his death and when she had voluntarily abandoned, deserted, or separated from him. See 34 C.J.S.Executors and Administrators § 344(b) (1942). Therefore, the trial court's denial of a family allowance to Mittie Marie is supported by the record.

Mittie Marie filed a post-judgment motion on March 12, 1992; therefore, the motion was denied by operation of law on June 10, 1992. Rule 59.1, Ala.R.Civ.P. The trial court purported to amend its order on June 15, 1992. The record contains no written agreement to extend the 90-day period; see Rule 59.1; therefore, the trial court acted outside its jurisdiction in amending the order after June 10, 1992.³

For the reasons stated above, I respectfully dissent from the majority's opinion overruling the motion to strike and dismissing this appeal as being from a nonfinal judgment.

ALMON, J., concurs.