Alabama Divorce Litigants Simply MUST Watch the Calendar

Here’s a case that just hurts to read. It’s Ex parte Bates, Case No. 2160081 (Ala. Civ. App. December 16, 2016). The wife filed for divorce against her husband, in a filing the husband alleged was the third such petition she had filed in an apparent attempt to judge-shop. When the husband failed to appear, the trial court made an entry of default on April 6, 2016 and set a hearing for May 9, 2016. The husband failed to appear at the hearing on May 9. On May 23, 2016, the trial court entered a judgment that divorced the parties, divided their marital property, and ordered the husband to pay the wife alimony.

On May 11, 2016 (before the trial court’s judgment of divorce), the husband filed a motion to set aside that judgment, in the apparent mistaken impression that the judgment had already been entered. The appeals court notes that, following New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala. 2004), it treats the motion as if it had been filed immediately following the entry of judgment from which it was taken.

The appeals court concludes that the husband’s motion of May 11 was a Rule 55(c) motion. Accordingly, it was denied by operation of law on the 90th day after it was “filed,” or August 22, 2016. Simultaneously, the trial court lost jurisdiction of the case. The trial court purported to enter an order on October 7, 2016 granting the husband’s motion, but by then it was too late. The trial court no longer had jurisdiction. The wife petitioned for a writ of mandamus seeking to have the appeals court direct the trial court to set aside its order of October 7, and that’s how the case ended up in the appeals court.

The appeals court granted the writ. “The October 7, 2016, order was void for want of jurisdiction. Accordingly, we grant the wife’s petition for a writ of mandamus and order that the trial court vacate that order.”

Wow. Just wow. You can’t argue with the legal reasoning, but it’s clear that justice was not done.

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