R.D.J. v. A.P.J.
142 So. 3d 662
Ala. Civ. App.2013Background
- Parents divorced in 2009; mother awarded primary physical custody and father liberal visitation; father ordered to pay child support and provide health insurance.
- Mother obtained enforcement/modification in April 2011; father found in contempt for unpaid support and ordered jailed until arrearage paid.
- In April 2012 both parties filed competing petitions to modify custody and visitation after abuse allegations; trial court sealed record and limited father’s visitation with daughter to daytime.
- Parties executed a September 4, 2012, memorandum agreement governing pendente lite visitation that was stamped filed in open court and noted a trial date of 11/14/2012; court entered an order incorporating that memorandum.
- Father failed to appear at the November 14, 2012, hearing; court granted counsel’s motion to withdraw, entered a default judgment on November 15, 2012 (awarding mother sole legal custody, modifying visitation, awarding fees, finding father in willful contempt, and issuing a writ of arrest).
- Father filed a Rule 55(c) postjudgment motion to set aside the default on December 14, 2012; trial court denied it on February 6, 2013. Father filed a successive postjudgment motion which the appellate court treated as untimely and beyond the trial court’s jurisdiction.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether the trial court erred in denying father’s Rule 55(c) motion to set aside the default judgment | Default was proper because father failed to appear and the memorandum shows a trial date; court acted within discretion | Father argued he had a meritorious defense, lack of culpable conduct (confusion over trial date/memorandum), and would be prejudiced if default stands | Reversed and remanded: trial court must expressly apply all three Kirtland factors before denying Rule 55(c) relief |
| Whether trial court could consider evidence submitted in a successive postjudgment motion after it denied the first postjudgment motion | N/A (mother opposed allowing untimely materials) | Father sought to add affidavit and documents in a successive motion to support set-aside request | Trial court lacked jurisdiction to entertain the successive postjudgment motion; those materials were not considered on appeal |
| Whether father’s alternative request for Rule 60(b) relief can be reviewed now | Mother argued Rule 60(b) relief was not before the court | Father argued Rule 60(b) provides alternative relief from default judgment | Not addressed on appeal: no final ruling by trial court on any Rule 60(b) motion, so appellate review of Rule 60(b) matters is premature |
Key Cases Cited
- Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988) (sets three-factor test for setting aside default judgments)
- Zeller v. Bailey, 950 So.2d 1149 (Ala. 2006) (trial court has broad discretion on motions to set aside defaults)
- Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610 (Ala. 1988) (presumption favoring determination on the merits when practicable)
- White v. Westmoreland, 680 So.2d 348 (Ala. Civ. App. 1996) (reversal/remand required where trial court record does not show consideration of all Kirtland factors)
- Triple D Trucking, Inc. v. Tri Sands, Inc., 840 So.2d 869 (Ala. 2002) (discussion of burden on movant regarding Kirtland factors)
- Sumlin v. Sumlin, 931 So.2d 40 (Ala. Civ. App. 2005) (default may be entered for failure to appear at trial)