Wise v. Wise, 264 So. 3d 871

Husband (Bruce Wise, Jr.), a U.S. Army servicemember, filed for divorce in Dale County, Alabama; wife (Vanessa Wise) and children were living in Missouri.
Husband attempted service by certified mail and private/police process servers in Missouri; certified mail was unclaimed. Trial court authorized service by first-class mail; husband mailed summons and complaint.
Wife did not answer; trial court entered an "entry of default" and a default divorce judgment awarding father custody.
Wife filed unverified motions to set aside the default judgment and to dismiss for lack of personal jurisdiction, asserting she never received service, had an order of protection/no-contact order, and was primary caregiver.
At the evidentiary hearing wife testified she never was served, moved to Missouri at husband’s encouragement, and was primary caregiver; husband introduced certified-mail tracking receipts and a change-of-address form.
Trial court denied the motion to set aside; appellate court reversed, finding the trial court abused its discretion and remanded for further proceedings.

Issue	Wife's Argument	Husband's Argument	Held
Validity of service / personal jurisdiction	Service by first-class mail was ineffective; she never received process	Husband provided tracking receipts showing certified-mail left at her Missouri address and showed he mailed pleadings	Court found service disputed; focused on motion to set aside default rather than resolving jurisdiction permanently and remanded for merits after setting aside default
Whether default judgment should be set aside under Kirtland factors	Timely moved to set aside; asserted meritorious defense (primary caregiver; custody in children’s best interest); denied avoiding service; raised protection orders	Argued wife avoided service and was in default	Court held wife showed a meritorious defense and timely action; default should be set aside (trial court abused discretion in denying relief)
Prejudice to plaintiff from setting aside default	N/A (wife seeking relief)	Denied substantial prejudice other than delay; argued avoidance of service	Court found no undue prejudice to husband from setting aside because wife moved promptly; delay alone insufficient to show prejudice
Culpable conduct by defendant (willful avoidance)	No willful avoidance; reasonable explanation for not responding	Husband asserted she absconded and avoided service	Court found wife’s testimony and circumstances defeated a finding of culpable, willful misconduct sufficient to bar relief in a child-custody context

Kirtland v. Fort Morgan Auth. Sewer Serv., 524 So.2d 600 (Ala. 1988) (establishes three-factor test for setting aside default judgments)
Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala. 1987) (guidance on culpability and reasonable explanations for inaction)
Zeller v. Bailey, 950 So.2d 1149 (Ala. 2006) (describes Kirtland balancing framework)
Bates v. Bates, 194 So.3d 976 (Ala. Civ. App. 2015) (discusses strong bias toward merits in custody cases)
Harkey v. Harkey, 166 So.3d 126 (Ala. Civ. App. 2014) (meritorious-defense examples in domestic relations)
Fuller v. Fuller, 991 So.2d 285 (Ala. Civ. App. 2008) (reversed denial of motion to set aside default where wife claimed lack of service; custody at stake)
Owens v. Owens, 626 So.2d 640 (Ala. Civ. App. 1993) (delay alone not sufficient to show prejudice)
Davis v. Musler, 713 F.2d 907 (2d Cir. 1983) (delay must cause loss of evidence or similar prejudice to be actionable)