Charity M. (Wallace) Justice
Timothy A. Wallace
from Winston Circuit Court (DR-13-900044.01)
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.
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.
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. 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.
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,
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.
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
"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,
"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 ...