from Dale Circuit Court (DR-17-900120)
THOMPSON, PRESIDING JUDGE.
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.
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.
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
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.
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.
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."
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."
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
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
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.
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.
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.
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. ...