257 So. 3d 316
Ala. Civ. App.2017Background
- Wife filed for divorce (complaint July 19, 2016), seeking sole physical custody, child support, one-half of husband’s prospective workers’ compensation settlement, and one-half of husband’s retirement benefits.
- Wife moved for default judgment after alleging husband was served Aug. 23, 2016 and failed to answer; she submitted an affidavit describing a common-law marriage prior to a 2011 ceremonial marriage, the parties’ 2006-born child, and factual bases for custody/support/asset claims.
- Trial court entered a default divorce decree (Nov. 1, 2016) granting divorce, awarding wife sole physical custody, one-half of any workers’ compensation benefits as child support, one-half of husband’s International Paper retirement as alimony/property settlement, and attorney’s fees.
- Husband moved to set aside the default judgment; the court initially set it aside but later reinstated the default decree after finding service was proper and the default caused by husband’s culpable conduct.
- On appeal, husband challenged service, sufficiency of evidence supporting custody/support/asset divisions, the award of one-half of undefined prospective workers’ compensation as child support, and the retirement division given the 10-year-marriage statutory requirement.
- Court of Civil Appeals affirmed dissolution, custody award, retirement division, and attorney’s fees; reversed and remanded the child-support/workers’-compensation portion for lack of required child-support forms and supporting evidence.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Morrow) | Held |
|---|---|---|---|
| Validity of service/default | Wife: Sheriff personally served husband; default proper | Husband: Service was fraudulent; default entered without his knowledge | Court: Husband waived authority on fraud claim; record shows service; default reinstated |
| Sufficiency of evidence for default relief | Wife: Her affidavit provided evidence to grant divorce, custody, property awards | Husband: Judgment lacked supporting evidence for custody, support, retirement division | Court: Affidavit sufficient to dissolve marriage and support custody; limited review affirmed those portions |
| Division of retirement benefits under §30-2-51(b) | Wife: Parties had common-law marriage plus ceremonial marriage totaling ≥10 years; retirement vested ~ $18,500 | Husband: Parties not married 10 years; statute precludes dividing retirement | Court: Wife’s uncontradicted affidavit supported common-law marriage and 10-year duration; division affirmed |
| Child support and attachment of prospective workers’ compensation | Wife: Entitled to half of husband’s workers’ compensation as child support | Husband: §25-5-86(2) protects workers’ compensation from seizure; award improper and undefined | Court: Workers’ comp can be used for child-support arrearages (McCall), but here required Rule 32 child-support forms and income evidence were missing; child-support/workers’ comp award reversed and remanded |
| Attorney’s fees award | Wife: Paid fees and submitted itemized bill totaling $1,266.12 | Husband: Challenged award | Court: Award supported by affidavit and itemized bill; trial court did not abuse discretion |
Key Cases Cited
- Wright v. Rogers, 435 So.2d 90 (Ala. Civ. App. 1983) (return of service is prima facie evidence of personal service)
- Kirtland v. Fort Morgan Authority Sewer Servs., Inc., 524 So.2d 600 (Ala. 1988) (factors governing setting aside default judgments)
- Plummer v. Plummer, 361 So.2d 592 (Ala. Civ. App. 1978) (where hearing occurred but transcript absent on appeal, court will presume supporting evidence)
- Tucker v. Tucker, 60 So.3d 891 (Ala. Civ. App. 2010) (default judgment may dissolve marriage but specific relief requires supporting evidence)
- Smith v. Smith, 836 So.2d 893 (Ala. Civ. App. 2002) (statutory limits and requirements for dividing retirement benefits)
- Ex parte McCall, 596 So.2d 4 (Ala. 1992) (workers’ compensation exemption should not relieve obligation to support spouse/children)
- Wilkerson v. Waldrop, 895 So.2d 347 (Ala. Civ. App. 2004) (Rule 32 forms are mandatory; failure to file when child support is an issue is reversible error)