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Harkey v. Harkey

Alabama Court of Civil Appeals

October 24, 2014

De'Arby Harkey
v.
Lundon Harkey

Released for Publication June 17, 2015.

Appeal from Madison Circuit Court. (DR-13-901142). Trial Judge: David A. Mann.

For Appellant: Michael Forton, Legal Services Alabama, Inc., Huntsville.

MOORE, Judge. Thompson, P.J., Pittman, Thomas, and Donaldson, JJ., concur.

OPINION

MOORE, Judge

De'Arby Harkey (" the wife" ) appeals from a default divorce judgment entered by the Madison Circuit Court (" the trial court" ) in favor of Lundon Harkey (" the husband" ); specifically, the wife asserts that the trial court erred in denying her postjudgment motion to set aside the judgment. We reverse.

Background

On December 19, 2013, the husband filed a complaint in the trial court seeking a divorce from the wife, custody of the parties' two minor children born in February 2007 and January 2009, respectively, and child support. According to a completed return-of-service form, the complaint was personally served on the wife on December 20, 2013. After the wife did not file an answer, the trial court sent an order, dated February 25, 2014, notifying the parties that a default judgment could be entered within 30 days. On March 18, 2014, the husband applied for the entry of default, which the clerk of the trial court granted on March 20, 2014. On March 24, 2014, the trial court entered a default judgment awarding the husband custody of the children and ordering the wife to pay $347 per month in child support.

On March 31, 2014, the wife, acting pro se, moved to set aside the default judgment. She asserted that she had not been served, that she had not received any " paperwork" regarding the case, that she had not been notified of any court dates, and

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that she intended to retain an attorney in order to gain custody of the children " because [the husband] has no job and he sell crack and I feel the safety of my children to be in his physical care [sic]." The trial court denied the motion on April 1, 2014. On April 18, 2014, an attorney representing the wife filed a second motion to set aside the default judgment, asserting as grounds that the wife, as a pro se litigant, had not understood the legal process, that she was the primary caretaker of the parties' children, that she could support the children while the husband could not, that the husband used drugs and could not provide a safe and suitable home for the children, that it was in the best interests of the children for the wife to be their custodian, and that the parties needed their marital property to be divided by court order. The trial court denied that motion on April 21, 2014. The wife timely appealed on May 8, 2014.[1]

Analysis

On appeal, the wife argues that the trial court exceeded its discretion in refusing to set aside the default judgment. Because the wife filed her postjudgment motions to set aside the default judgment within 30 days of the entry of the default judgment, we treat those motions as having been filed under Rule 55(c), Ala. R. Civ. P. See Williams v. Williams, 676 So.2d 1343 (Ala.Civ.App. 1996). Rule 55(c) provides:

" In its discretion, the court may set aside an entry of default at any time before judgment. The court may on its own motion set aside a judgment by default within thirty (30) days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed ...

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