Lee’s Note: In the interest of accuracy and to avoid confusion, I’ve left this blog entry as it has always existed except for the insertion of this first paragraph. The opinion I’m discussing here has since been withdrawn. You can read about the withdrawal and the revised opinion here.
The Alabama Court of Civil Appeals explored in Sumlin v. Sumlin, Case No. 2040238 (Ala. Civ. App. June 30, 2005) the process for setting aside a default judgment of divorce. In the Sumlin case, the trial court had declined to set the default judgment aside, and the Court of Appeals affirmed.
The parties in this case had agreed to a continuance on two separate occasions, both while the wife was acting pro se. Then the wife hired counsel, and a few months later, the wife moved to set the case for trial. When the trial date was set, the wife filed a motion for continuance, which was denied. The husband and his counsel appeared at the appointed time, but neither the wife nor her counsel appeared. The trial court took ore tenus evidence and entered a divorce judgment based on the wife’s default. The wife moved to set aside the default judgment.
In the wife’s motion to set aside, the wife’s attorney said that he had “several criminal cases” set in another county and was unable to appear on the designated date, that he had attempted on several occasions to speak with the judge about a continuance but had been unable to do so, and that the attorney for the husband had said his client would not cooperate with a continuance. The wife’s attorney said in the motion that he had called his client (who lived five hours away) and told her not to come to court on the date trial was set, because he (her attorney) would not be there.
The seminal case on setting aside default judgments is Kirtland v. Fort Morgan Auth. Sewer Serv., 524 So. 2d 600 (Ala. 1988). Kirtland calls for balancing the defendant’s right to defend on the merits against judicial economy. Here’s how the Alabama Supreme Court described it in Sampson v. Cansler, 726 So. 2d 632 (Ala. 1998):
Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider ‘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.
The Court of Appeals in this case said that the trial court’s decision was correct because the wife’s motion to set aside the default failed to set forth the Kirtland factors or to include facts that would equip the trial court to apply the Kirtland factors.
The record in this case indicates that the final hearing in this matter was continued on two occasions and on the last occasion, when the trial court denied any further continuances, counsel for the wife willfully disregarded the final hearing date set by the trial court and failed to appear at the scheduled time. The motion to set aside the default judgment reveals that counsel for the wife knowingly disregarded the trial court’s order and advised the wife not to appear in court. As noted by the supreme court in Kirtland, “the strong policy of resolving legal issues on the merits must yield when a defaulting party has committed intentional acts that are contrary to procedural rules.” 524 So. 2d at 608.
Dissenting, Judges Crawley and Murdock argued that a careful analysis of the Kirtland factors indicated that the motion to set aside the default judgment should have been granted and the wife allowed to defend her case on the merits, particularly because the decree dealt with the best interests of a child.