122 So. 3d 185
Ala. Civ. App.2013Background
- Wife filed for divorce in 2003; trial court granted default divorce in 2004 after service by publication due to failed personal service.
- The 2004 default judgment imposed child support, alimony, property transfers, debt allocation, and attorney fees.
- Husband filed a 2010 modification petition seeking to terminate child support/arrearages and argued lack of personal jurisdiction and other defects.
- Parties mediated in 2011; mediation settlement terminated child-support/alimony and settled other financial terms; court adopted the agreement in August 2011.
- In August–December 2011, wife sought pendente lite relief and to compel compliance; court ordered Lexus turnover and back payments; husband moved to vacate.
- 2012 judgment denied husband’s Rule 60(b) motion; appellate court held some judgments void for lack of subject-matter jurisdiction due to filing-fee issues and lack of personal jurisdiction, while affirming others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2004 default divorce lacked personal jurisdiction over husband | Hall contends service by publication on a nonresident was invalid | Hall had not challenged jurisdiction timely; nonresident service invalid | Void for lack of personal jurisdiction, but waiver via general appearance applied |
| Whether the December 20, 2011 judgment was void for lack of subject-matter jurisdiction due to filing-fee failure | Wife failed to pay a filing fee for the pendente lite/related filings | Proceedings lacked proper filing, thus void | Void and subject to dismissal; instruction to vacate |
| Whether the court could review the 2011 mediation-based judgment given jurisdictional defects | Contends court lacked jurisdiction to enter or enforce due to void 2004 judgment | Mediation agreement valid; court had jurisdiction over modified terms | Appeal limited; portions related to void judgments deemed void; others affirmed |
| Whether husband waived a challenge to jurisdiction by not raising it in first appearance | General appearance after default waived lack of service challenge | Husband did not timely challenge; proceeded as opposed to special appearance | Waiver established; 60(b)(4) relief affirmatively denied |
| Whether the 2011 and 2012 orders could be upheld independent of the voidness analysis | Orders enforce obligations from mediation | Orders void or without effect due to jurisdictional defects | Some orders void; others, though, analyzed for potential compliance, were left with instructions to vacate the void judgment |
Key Cases Cited
- Braley v. Horton, 432 So.2d 463 (Ala. 1983) (service by publication limited to residents; due process limits for nonresidents)
- Shaddix v. Shaddix, 603 So.2d 1096 (Ala. Civ. App. 1992) (service by publication; due process concerns; pari materia rules)
- Allsopp v. Bolding, 86 So.3d 952 (Ala. 2011) (standard for Rule 60(b)(4) relief on void judgments; de novo review with some deference to ore tenus findings)
- Klaeser v. Milton, 47 So.3d 817 (Ala. Civ. App. 2010) (general appearance waives lack of service; lack of timely challenge = waiver of jurisdiction issues)
- Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45 (Ala. 2003) (filing of a pleading constitutes a general appearance; jurisdiction obtained; waives objections to service)
- Aetna Ins. Co. v. Earnest, 215 Ala. 557, 112 So. 145 (Ala. 1927) (general appearance after judgment waives defects in service of process)