Harkey v. Harkey
166 So. 3d 126
Ala. Civ. App.2014Background
- Husband filed for divorce, custody, and child support on December 19, 2013; return-of-service showed personal service on wife on December 20, 2013.
- Wife did not answer; clerk entered default March 20, 2014; trial court entered default judgment March 24, 2014 awarding husband custody and child support.
- Wife (pro se) moved to set aside the default judgment on March 31, 2014, asserting lack of service/notice and alleging husband’s drug use and inability to care for children; trial court denied April 1, 2014.
- Wife’s attorney filed a second motion to set aside on April 18, 2014, asserting meritorious custody defenses and need to divide marital property; trial court denied April 21, 2014.
- Wife timely appealed; appellate court treated the motions as filed under Rule 55(c) and reversed, remanding for the trial court to perform the Kirtland analysis and enter findings on each factor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying the motions to set aside the default judgment under Rule 55(c) | Wife: she lacked proper notice/service, acted quickly, and has meritorious custody defenses (primary caretaker; husband uses drugs; children’s best interests favor her) | Husband: default was proper after wife’s failure to answer and participate | Reversed and remanded: trial court failed to apply Kirtland factors or hold a hearing; appellate court orders trial court to analyze and make findings on all three Kirtland factors |
| Whether appeal was timely and motions were properly considered under Rule 55(c) and precedent on successive postjudgment motions | Wife: second motion raised additional grounds; appeal runs from denial of second motion | Husband: implicit position that judgment and denials were proper and timely challenged | Court: affirmed that the second motion was properly considered and appeal timely; even if not, appeal would still be timely from the first denial |
Key Cases Cited
- Williams v. Williams, 676 So.2d 1343 (Ala. Civ. App.) (treating timely postjudgment motion to set aside under Rule 55(c))
- Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.) (establishing three-factor Kirtland test for setting aside defaults and presumption in favor of deciding on the merits)
- Sumlin v. Sumlin, 931 So.2d 40 (Ala. Civ. App.) (emphasizing best-interest presumption in custody matters)
- Owens v. Owens, 626 So.2d 640 (Ala. Civ. App.) (custody defaults should be decided on merits absent extraordinary circumstances)
- Loupe v. Loupe, 594 So.2d 155 (Ala. Civ. App.) (what constitutes a meritorious custody defense)
- White v. Westmoreland, 680 So.2d 348 (Ala. Civ. App.) (reversal required when record does not show trial court considered Kirtland factors)
- R.D.J. v. A.P.J., 142 So.3d 662 (Ala. Civ. App.) (application of White and Kirtland to require explicit findings)
- Roden v. Roden, 937 So.2d 83 (Ala. Civ. App.) (rules on filing successive postjudgment motions within 30 days)