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Justice v. Wallace

Alabama Court of Civil Appeals

September 14, 2018

Charity M. (Wallace) Justice
v.
Timothy A. Wallace

          Appeal from Winston Circuit Court (DR-13-900044.01)

          DONALDSON, Judge.

         Charity M. (Wallace) Justice ("the mother") appeals from a default judgment entered in favor of Timothy A. Wallace ("the father") by the Winston Circuit Court ("the trial court"). The record shows that no entry of default was made against the mother and that the mother filed a responsive pleading several weeks before the default judgment was entered. Therefore, we reverse the judgment.

         In August 2013, the mother and the father were divorced by a judgment of the trial court that, among other things, granted the parties joint custody of the parties' child, A.G.W. ("the child"). On March 23, 2017, the father filed a petition in the trial court seeking a modification of child custody and a finding of contempt against the mother.

         The record shows that the mother was served by certified mail with a copy of the father's modification petition on May 11, 2017. The mother's response was due within 30 days of service, or by June 12, 2017.[1] According to the record, the mother filed an answer denying the allegations in the father's petition at 1:09 p.m. on June 19, 2017. Thereafter, at 2:06 p.m., the mother filed a "motion to set aside default." We find no indication in the record, however, that a default had been entered against the mother under Rule 55(a), Ala. R. Civ. P., at the time she filed her responsive pleading and motion.

         According to the record, the next document filed was the father's "Motion for Default Judgment on Petition for Modification of Child Custody." That motion has an electronic-filing stamp that indicates that it was filed at 2:31 p.m. on June 19, 2017, after the mother's responsive pleading was filed. We note that the certificate of service attached to that motion indicates that the motion was mailed by the father's attorney to the mother on June 19, 2017.[2]

         On June 28, 2017, the trial court entered the following order: "This matter is hereby set for a final hearing on the merits on the 10th day of August, 2017 at 9:00 a.m. ...."

         Although there is no transcript in the record of any proceedings that occurred on August 14, 2017, the mother asserts in her brief that the parties appeared before the trial court on that date and that the father's motion for a default judgment was granted by the trial court. The record shows that on August 14, 2017, the trial court entered a "DEFAULT JUDGMENT ON MODIFICATION OF CHILD CUSTODY," which provided, among other things:

"This cause coming on to be heard at this term, was submitted upon Petition for Modification of Child Custody and Motion for Contempt, and Motion for Default Judgment, based upon [mother's] failure to answer or otherwise defend under time limits set out in [the] Alabama [Rules of] Civil Procedure, and upon consideration thereof, the Court is of opinion and finds that the Court has jurisdiction of the parties and of the cause of action, and that the [father] is entitled to the relief prayed for in said Complaint; it is, therefore,
"ORDERED, ADJUDGED AND DECREED BY THE COURT:
"FIRST: That the [father] herein is awarded the full permanent care, custody and control of the parties' minor child namely, A.G.W., whose date of birth is April 11, 2011. The [mother] shall exercise standard visitation with the minor child as set out in the schedule herein.
"....
"FIFTH: That the [mother] has violated the original divorce decree, she shall be ordered to reimburse to said [father] his Attorney Fees in the amount of Seven Hundred Fifty and 00/100 Dollars ($750.00) and the court costs of this action and default as paid by [the father] in the amount of Three Hundred Fifty and 00/100 Dollars ...

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