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Jones v. Jones

Alabama Court of Civil Appeals

October 26, 2018

Willie James Jones, Jr.
v.
Barbara Joann Jones

          Appeal from Dallas Circuit Court (DR-13-900003.01)

          PITTMAN, JUDGE.

         This appeal arises from domestic-relations proceedings in the Dallas Circuit Court. In 2013, Barbara Joann Jones ("the former wife") filed a complaint seeking a divorce from Willie James Jones, Jr. ("the former husband"); that civil action was assigned case number DR-13-900003 ("the divorce action"). An order was entered in the divorce action in June 2013 that, among other things, awarded the former wife pendente lite periodic alimony in the amount of $600 per month and reserved certain issues for a subsequent hearing. On April 1, 2015, after an ore tenus hearing at which both parties and their attorneys appeared, the trial court entered a final judgment in the divorce action terminating the pendente lite alimony as of September 1, 2013, and declining to award periodic alimony, but reserving the power to award periodic alimony in the future and directing the former husband to pay the former wife a $1, 500 pendente lite alimony arrearage and $3, 420 as one-half of the total charges for the funeral services for Audrey A. Jones, the parties' deceased daughter. Under Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala. Civ. App. 2001), a trial court's reservation of the periodic-alimony issue "is, for all intents and purposes, a denial of alimony at the time of the original divorce," and "a request for an award of alimony after the reservation of the issue must be based upon a material change of circumstances." 816 So.2d at 1048.

         In February 2016, the former wife initiated a new civil action against the former husband seeking modification of the parties' divorce judgment as to periodic alimony and enforcement of the payment obligations in the April 1, 2015, final judgment entered in the divorce action; that new civil action was assigned case number DR-13-900003.01 ("the modification and enforcement action"). The former wife alleged in her complaint in that action that the former husband had received a lump-sum disability settlement that would allow him to discharge his financial obligations in the divorce judgment and that, as to periodic alimony, he was working and earning moneys surreptitiously in addition to receiving disability payments. The former husband was personally served in March 2016 with process in the modification and enforcement action at the address for him supplied by counsel for the former wife, but he did not respond to the former wife's pleading, nor did counsel appear on his behalf in that action.

         While the modification and enforcement action was pending, the former wife initiated independent efforts in the divorce action to garnish moneys held by the former husband at Wells Fargo Bank, and the trial court held one or more hearings in the divorce action regarding the former husband's compliance with the April 1, 2015, final judgment entered in the divorce action. On January 3, 2017, the parties and their attorneys of record in the divorce action appeared for a hearing, after which the trial court entered an order in the divorce action recalculating the outstanding financial obligations of the former husband under the divorce judgment in light of certain partial payments and setting forth a payment schedule for the former husband's full satisfaction of those obligations.

         Although the January 3, 2017, order entered in the divorce action touched and concerned some of the issues raised in the modification and enforcement action, that order notably did not address the periodic-alimony issue. In June 2017, the former wife sent a handwritten letter to the trial court requesting that the modification and enforcement action be placed on the docket as soon as possible; that letter did not indicate that a copy thereof had been served upon the former husband. In response to the former wife's letter, the trial court entered an order in the modification and enforcement action setting a hearing on the former wife's "Request for Hearing" at 9:00 a.m. on September 20, 2017, and directing notice of that hearing to be sent both to counsel for the former wife and -- because no attorney had appeared for the former husband in that action -- to the former husband's last known address on file. The former wife's attorney then filed a motion to withdraw, which the trial court granted, and the former wife thereafter proceeded pro se. On September 20, 2017, the former wife appeared for the scheduled hearing in the modification and enforcement action, but neither the former husband nor any attorney acting on his behalf appeared; there is no transcript of that hearing in the appellate record, and it is thus unclear whether the former wife, a pro se litigant, adduced evidence at that hearing to establish her right to relief.[1] The trial court entered a judgment on October 23, 2017, noting that the former husband had failed to appear at the hearing; that judgment awarded the former wife a $3, 400 judgment as to the unpaid funeral-home expenses and periodic alimony of $600 per month for 24 months beginning in October 2017.

         Under Rule 55(c), Ala. R. Civ. P., a trial court "may ... set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment." On November 16, 2017, within the applicable 30-day period, the former husband, appearing through counsel for the first time in the modification and enforcement action, filed a postjudgment motion to set aside the default judgment, asserting that neither he nor counsel had received notice of a hearing and that his income was approximately $1, 000 per month. The former husband subsequently requested a hearing on that postjudgment motion, which the trial court set for January 23, 2018.

         At the hearing on the postjudgment motion, the former husband introduced an evidentiary exhibit indicating that he receives a net amount of $1, 083 each month from the Social Security Administration after deduction of Medicare premiums. In addition, the former husband testified at that postjudgment hearing (a) that he was unable to perform any electrical work, which had been his trade, and that Social Security benefits were his sole income each month; (b) that he had been paying rent of $400 per month while living with his sister, leaving him funds of less than $100 per month after the alimony deduction was taken into account (much of which residue he was also paying to his sister for her expenses); (c) that he cannot live on a monthly income reduced by the alimony payments; and (d) that he did not receive any notice to be present for the hearing in the modification and enforcement action leading to the October 23, 2017, default judgment. Six days after the hearing had concluded, the trial court entered an order on January 29, 2018, denying the former husband's postjudgment motion to set aside the default judgment. The former husband timely appealed, identifying the January 29, 2018, postjudgment order as the pertinent "judgment" as to which he sought appellate review. Cf. Rule 4(a)(1), Ala. R. App. P. (last sentence providing that [o]n an appeal from [an] ... order a party shall be entitled to a review of any judgment, order, or ruling of the trial court").

         In his appellate brief, the former husband reasserts his contentions that he received no notice of the September 20, 2017, hearing in the modification and enforcement action and that he has no ability to pay the alimony awarded to the former wife in the default judgment. In Stanfield v. Stanfield, 2 So.3d 873 (Ala. Civ. App. 2008), we set forth a number of pertinent principles governing appellate review of trial-court orders entered on motions to set aside default judgments such as that under review in this appeal:

"In Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988), our Supreme Court established a two-pronged analysis for evaluating whether to grant a motion for relief from a default judgment. This two-pronged analysis is designed to balance the two competing policy interests of judicial economy and a litigant's right to defend on the merits. Kirtland, 524 So.2d at 604. The first prong of the analysis identified by the Kirtland Court is that the trial court must presume that cases 'should be decided on the merits whenever practicable.' 524 So.2d at 604. The second prong of the analysis entails consideration of three factors commonly referred to as the Kirtland factors: '1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct.' Kirtland, 524 So.2d at 605.
"As this court recently observed in Sumlin v. Sumlin, 931 So.2d 40 (Ala. Civ. App. 2005), the two-pronged analysis applied in determining whether to set aside a default judgment begins with the presumption that a case should be decided on the merits whenever practicable
"'because "the interest in preserving a litigant's right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy." [Kirtland, ] 524 So.2d at 604. It is against this presumption and its recognition of the paramount nature of a litigant's right to defend on the merits that this court should interpret and apply the second step in the Kirtland analysis.'

"931 So.2d at 44 (emphasis added). As Kirtland itself explains:

"'[A] trial judge should start with the presumption that cases should be decided on the merits whenever practicable. Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3rd Cir. 1984). The Alabama Constitution and our past opinions construing the default judgment rule support the conclusion that the interest in preserving a litigant's right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy. We have repeatedly held that the trial court's use of its discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala. 1987); Elliott v. Stephens, [399 So.2d 240 (Ala. 1981)]; Oliver v. Sawyer, 359 So.2d 368 (Ala. 1978); Knight v. Davis, 356 So.2d 156 (Ala. 1978). We have affirmatively acknowledged the disfavorable treatment afforded default judgments on the ground that such judgments preclude a trial on the merits. Oliver v. Sawyer, supra, at 369. We have also construed Rule 55(c) as contemplating a liberal exercise of a trial court's discretion in favor of setting aside default judgments. Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala. 1987). Moreover, Article 1, §§ 6 and 13, Alabama Constitution of 1901, by guaranteeing the due process rights of citizens, and Article 1, § 10, by holding inviolate a person's right to defend himself in a civil action to which he is a party, elucidate[] this state's commitment to protect an individual's right to attain an ...

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