May 8, 2015
Barbara T. Marks
Edward D. Marks
from St. Clair Circuit Court. (DR-02-224.01).
T. Marks (" the former wife" ) appeals from a
judgment dismissing her petition seeking a modification of a
June 18, 2004, divorce judgment and a finding of contempt
against Edward D. Marks (" the former husband" ).
We reverse the judgment and remand for further proceedings.
former wife filed her petition on July 24, 2012, through her
attorney Jonathan L. Brogdon. Before the case was set for
trial, Brogdon filed a motion to withdraw from the case on
January 31, 2014, which motion was granted on February 27,
2014. The next day, the clerk of the trial court sought from
Brogdon, via electronic mail, a valid address for the former
wife. Apparently, Brogdon did not supply the clerk with the
requested information. On April 3, 2014, the trial court
issued an order scheduling the case for trial on June 11,
2014. The former wife did not receive that notice, so she did
not appear for trial; on June 11, 2014, the trial court,
noting the absence of the former wife, took testimony and
entered a judgment denying the petition filed by the former
wife, dismissing the case with prejudice, and ordering the
former wife to pay costs of court and $5,000 in
August 6, 2014, the former wife filed, through a new
attorney, a motion to set aside the June 14, 2014 judgment.
The former wife verified that she had not received notice of
the trial date. The former wife pointed out that Brogdon had
not served her with his motion to withdraw and that the clerk
had attempted to obtain her address from Brogdon after
Brogdon had withdrawn from the case. The former wife attested
that she had learned of the entry of the judgment only upon
consultation with her new attorney on August 6, 2014. In a
reply to the former husband's response to her motion, the
former wife argued that due process required that the
judgment be set aside. On September 24, 2014, the trial court
denied the motion to set aside, stating that it had been
filed more than 30 days after the entry of the final
trial court entered a default judgment against the former
wife as a result of her failure to appear for trial. See
Triple D Trucking, Inc. v. Tri Sands, Inc., 840
So.2d 869 (Ala. 2002) (recognizing that a default judgment
may be entered against a party who fails to appear at trial).
The former wife basically asserted two grounds for setting
aside the default judgment: (1) that the failure of the
trial-court clerk to notify the former wife of the trial date
deprived her of due process and (2) that her failure, or the
failure of her attorney, to inform the trial-court clerk of
her address should be considered excusable neglect.
first ground arises under Rule 60(b)(4), Ala. R. Civ. P.,
which authorizes a trial court to set aside a final judgment
entered in a manner inconsistent with due process. See Ex
parte Third Generation, Inc., 855 So.2d 489, 492 (Ala.
2003). A Rule 60(b)(4) motion may filed at any time after the
entry of a judgment. Ex parte Full Circle Distrib.,
L.L.C., 883 So.2d 638 (Ala. 2003). As discussed in more
detail later in this opinion, the trial court erred in
rejecting the former wife's motion based on untimeliness.
However, unless a court clerk voluntarily assumes the
obligation to notify a litigant of a
scheduled trial date, the clerk's failure to so notify a
litigant does not violate the due-process rights of the
litigant, who is under a duty to inform the clerk of his or
her service address and to keep apprised of the status of his
or her own case. See Ex parte Weeks, 611 So.2d 259,
262 (Ala. 1992); see also Burleson v. Burleson, 19
So.3d 233, 239 (Ala.Civ. 2009). Given the absence of any
evidence indicating that the clerk of the trial court assumed
the duty to notify the former wife of her scheduled trial
date, the former wife failed to present sufficient factual
grounds to support her Rule 60(b)(4) motion. We therefore
hold that the former wife's due-process rights were not
violated and that the judgment is not void.
find merit in the former wife's second argument.
" Our caselaw recognizes that the failure of a party to
advise the clerk of a proper service address may 'fall
into the category of excusable neglect ....'
DeQuesada v. DeQuesada, 698 So.2d 1096, 1099
(Ala.Civ. 1996). A motion to set aside a default judgment due
to excusable neglect is a Rule 60(b)(1)[, Ala. R. Civ. P.,]
motion, even if not denominated as such by the movant. See
R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229
(Ala. 1994) (holding that substance of motion not
nomenclature determines which subpart of Rule 60(b) applies).
A Rule 60(b)(1) motion must be filed within four months of
the date of the entry of the judgment. See Rule 60(b), Ala.
R. Civ. P."
Burleson, 19 So.3d at 239. The former wife filed her
motion less than two months after the entry of the judgment,
so it was timely under Rule 60(b)(1), and the trial court
erred in denying the motion as being untimely filed.
See Djibrine v. Djibrine, [Ms. 2130631,
Aug. 1, 2014] 160 So.3d 26, (Ala.Civ.App. 2014).
party seeking to set aside a default judgment under Rule
60(b)(1) not only must prove excusable neglect, but also must
satisfy the trial court that the other factors enunciated in
Kirtland v. Fort Morgan Authority Sewer Service,
Inc., 524 So.2d 600 (Ala. 1988), weigh in favor of
setting aside the judgment. See generally DaLee v. Crosby
Lumber Co., 561 So.2d 1086 (Ala. 1990). When a trial
court does not demonstrate that it considered the Kirtland
factors when denying a motion to set aside a default
judgment, this court ordinarily will reverse the judgment and
order the cause remanded for the trial court to address those
factors. See D.B. v. D.G., 141 So.3d 1066, 1070-71
(Ala.Civ. 2013). In this case, because the trial court
summarily denied the former wife's motion, the trial
court did not consider the Kirtland factors. Thus, we reverse
the judgment and remand the cause for further proceedings
consistent with this opinion.
AND REMANDED WITH INSTRUCTIONS.
P.J., and Pittman, Thomas, and Donaldson, JJ., concur.