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Wise v. Wise

Alabama Court of Civil Appeals

May 18, 2018

Vanessa Genise Wise
v.
Bruce Edward Wise, Jr.

          Appeal from Dale Circuit Court (DR-17-900120)

          THOMPSON, PRESIDING JUDGE.

         Vanessa Genise Wise ("the mother") appeals from a default judgment entered by the Dale Circuit Court ("the trial court") divorcing her from Bruce Edward Wise, Jr. ("the father"), dividing the parties' marital property, and awarding the father custody of the parties' three minor children ("the children") subject to the mother's visitation.

         The record indicates the following. The father is in the United States Army. He and the mother married in Hawaii in October 2010. The parties' oldest child was born before the marriage; the younger two children were born during the course of the marriage. At some point, the father was stationed at Fort Rucker, and the family moved to Dale County. In October 2016, the mother and the children moved to Missouri and began living in a house the parties owned there.

         On May 18, 2017, the father filed a complaint for a divorce in the trial court. He attempted to perfect service of the summons and complaint by certified mail, which was left unclaimed, and by personal service through a private process server and a law-enforcement agency in Missouri. Attempts to serve the mother were unsuccessful. Ultimately, on June 21, 2017, the father requested that he be permitted to serve the mother by first-class mail. The trial court granted the father's request on June 22, 2017, stating that, upon notification of the mailing of the summons and complaint being placed in the record, the mother would be deemed served. On June 23, 2017, the father notified the court that he had mailed the summons and complaint to the mother via the United States Postal Service.

         The mother did not answer the complaint. On July 31, 2017, the father filed an application for an entry of default against the mother, and he filed an amended application on August 7, 2017. The trial judge signed an order titled "entry of default, " finding the mother to be in default, on August 8, 2017. That same day, the trial court entered a default judgment divorcing the parties ("the divorce judgment"), stating that, in doing so, it relied on the complaint, the father's written testimony, and the default of the mother. In the judgment, among other things, the trial court awarded the father custody of the children subject to the mother's visitation.

         On August 24, 2017, the mother filed an unverified motion seeking to set aside the divorce judgment and requesting an immediate hearing. She filed an amended motion to set aside on August 31, 2017, in which she also claimed that the divorce action was due to be dismissed for lack of personal jurisdiction, pursuant to Rule 12(b)(2), Ala. R. Civ. P. The amended motion, too, was unverified. No affidavits or other evidentiary submissions were attached to either of the motions to set aside. In the motions, the mother claimed that she never received notice of certified mail having been sent to her, and she denied that she had attempted to avoid service. She also said that she had a "pending" order of protection from a court in Missouri and that she had had a "no contact order" from the Department of the Army since April 2017.

         Furthermore, in her amended motion to set aside the divorce judgment, the mother averred that she had always been the primary caregiver for the children and that it was in the best interests of the children for her to have primary physical custody of them. She also claimed that she was the "fit and proper person to continuously care for the children's needs."

         The father filed an opposition to the mother's initial motion to set aside, saying that the mother's claim that she was unaware of the divorce proceeding was "doubtful."

         An evidentiary hearing was held on the mother's amended motion on September 5, 2017. At the hearing, the mother testified that she and the children had moved to St. Louis, Missouri, in October 2016 because, she said, the father was "to go to Honduras on a tour which was cancelled." She said that the father had encouraged their move to Missouri.

         The mother also testified that she had never been served with the divorce complaint. She said that she did not ignore people knocking on her door and that, to her knowledge, no deputy or private process server had ever come to her house. She also testified that she never received any notices for certified mail. She said that she believed that the father had had her mail in Missouri forwarded to him in Alabama. She also stated that she had never attempted to avoid service of the complaint.

         On cross-examination, the father introduced evidence of two tracking receipts that indicated that notice of certified mail had been left at the correct address at the house where the mother lived in Missouri. The mother acknowledged that she received the divorce judgment at that address. A change-of-address form for the father, individually, requesting that his mail be forwarded from the house in Missouri to Fort Rucker was also submitted into evidence.

         The mother also testified that she had called "the courts quite often, " apparently regarding this matter. She said that she had asked the father's attorney to send information to her and to her attorney but that "I have emails stating he refused to send" any information. In response to a question from the trial judge, the mother said that she had been aware of the divorce proceeding when she telephoned the court seeking information about the action.

         The mother attempted to testify regarding certain conduct of the father. The father's attorney objected to the testimony on the ground that it was not relevant to the mother's amended motion to set aside the divorce judgment, and the trial court sustained the objection.

         After the hearing, the trial court entered an order denying the mother's amended motion to set aside the divorce judgment and to dismiss the divorce action pursuant to Rule 12(b), Ala. R. ...


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