Alabama – When is a Default Judgment Really a Default?

The Alabama Court of Civil Appeals says the trial court must affirmatively apply a three-factor analysis before denying a Rule 60(b) motion after a default judgment. The defendant husband in Campbell v. Campbell, Case No. 2030437 (Ala. Civ. App. April 22, 2005 was duly served but did not respond within 30 days. In fact, it was more than five months after service that the plaintiff wife moved for a default judgment. The trial court entered a divorce judgment based on the husband’s default, ordering property division, child custody, child support, and alimony of $11,000 per month (must have been one rich defaulting husband). The wife filed a motion to alter, amend, or vacate to clarify the judgment 27 days after it was entered, and the trial court granted her motion 6 days after that.

Exactly 30 days after the trial court’s granting of wife’s motion to alter, amend, or vacate, the husband filed a motion to set aside the default judgment, stating that he “was in no state of mind to properly defend himself or realize the legal implications of not filing an answer at the time he was served with the summons and complaint.” He stated that he had undergone residential treatment for alcohol abuse and depression in the months leading up to the wife’s service of process on him and that he was continuing outpatient treatment during the time he was served.

After a hearing on the husband’s motion, the trial court instructed both parties to submit affidavits on the issue of whether the division of marital assets was equitable, and each party did so. Soon afterward, the trial court denied the husband’s motion without opinion.

On appeal, the husband argued in the alternative, either that (a) his motion was a timely filed Rule 55( c ) motion (must be filed within 30 days after entry of the judgment) or that (b) his motion was a timely filed Rule 60(b) motion (must be filed within a reasonable time and not more than four months after the judgment). The husband argued that his motion was filed within 30 days of the court’s AMENDED judgment and therefore qualified under 55( c ). The Appeals Court rejected this argument, but it ruled that the husband had succeeded in filing a valid Rule 60(b) motion.

Even though the motion didn’t use these words, the Appeals Court ruled that the husband had in effect argued that he was entited to relief because of “excusable neglect,” one of the grounds for relief in Rule 60(b). And in cases seeking Rule 60(b) relief, the Appeals Court said, the trial court must not only consider excusable neglect. It must apply the factors in Kirkland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1988):

“Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. … 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.’ Kirtland, 524 So. 2d at 605.”
Sampson v. Cansler, 726 So. 2d 632, 633 (Ala. 1998). (emphasis added).

Because the trial court’s order did not “affirmatively indicate that the trial court considered the Kirkland factors,” the Appeals Court reversed and remanded with instructions to apply the Kirkland factors.

29 thoughts on “Alabama – When is a Default Judgment Really a Default?”

  1. Hello, I have a case open and i am a single mom that can not afford an attorney. I have a final hearing on 5-9 and this is my second one. He has not agreed to divorce me and the judge told me I had to file a motion in order to have it granted. I dont know what motion or where to look I make $900. a month and cant afford to hire an attorney. He is in prison and making this difficult. He answered back to the motion for divorce, but the judge does not accept it. what do I do??? I need help, and any help would be greatly appreciated. Thanks, Angela Hayes

  2. I am in a similar situation. My wife filed for divorce and took all the money in our bank accounts. She is a Doctor and makes over $325,000 a year. I have been a house husband for the past 5 years and have no job or income. Our divorce trial is coming up on June 9th and I cannot afford an attorney. The judge did order her to pay me $1200 per month living expenses on April 9th but you cannot afford rent and food with that. Please any help or advise would be great. Thank you very much, Jim Roddy

  3. I filed for divorce in NC 12/2005, in the meantime my soon to be ex filed a divorce in AL. 7/2006. The courts moved it to NC & then back to AL. becaus he had his dad lie & state he never got papers in NC. I then had to be the one to put it back in AL. courts. He ignored answering the discoveries & the judge sent him a letter of contempt of court & gave him 14 days to get papers in. Now we are in limbo & I have found out he has been playing house & supporting another woman for over 1 1/2 years & has not sent me any money until he filed in Jul. 2006 @ $1000 a month, not only fixed my health insurance that I have to pay full amount & now hiding $. I was a Corporate wife for 29 years & taught school wherever he got transferred to give our children the best private school educations & have no assets. On his discoveries he admitted to a relationship w/ a woman in AL. since June 2006 a month before AL divorce that he filed. I am running out of money, & unfortunately fell and broke my back in 1997. He started an affair then & after getting caught ended it 4 yrs later & begging me to work things out. I tried only to end up to find out he is a “functional alcoholic” & he used my chikdren & me to rebuild his reutation in his industry. Now a CEO he is playing every dirty divorce trick possible. How can I get this expidited & find out how much he has paid to support this littlw whore, hidden money, lied on discoveries. HELP! I have been going through daily hell & feel like this will never end. What will the AL courts do w/ him admitting to the relationship before he even filed for AL divorce & evidence of it by PIs & written on his discoveries. I am disable & can not teach. Any suggestions that might get this horrible nightmare to some closure. Any direction would be greatly appreciated. What happens to women in AL court with situations similar to mine?

  4. it took 3 years and 3 lawyers before i finally received a divorce by default. in all this time i tried to settle the properties, but got no response from her. i would like to start a new life with someone, but i am unable to clear my old life it seems. my current employeer told me i cannot take her off my health insurance and retirement without the courts decision. what are my options? has anybody been in a situation like this? i live in alabama. thank you.

  5. must the defaulting party be served notice of the upcoming default even if they did not respond to the divorce papers served on them 5 months prior and if so do they then have 10 days to answer, before the default can be obtained?

  6. I think you’re asking whether a defendant in a lawsuit who has already been served with legal process and who has not filed an answer must receive some ADDITIONAL notice before the plaintiff can obtain a judgment by default. The answer is no.

  7. I can’t find the Alabama Rules of Civil Procedure anywhere on the internet. Do you know if they are hiding somewhere or will I have to find someone with a Westlaw password and hope for the best?

    Also, can a Rule 60(b) motion even be done against a mutually signed settlement agreement filed in concert with separation papers? I don’t have $ for a lawyer since my husband refuses to pay what he agreed to pay. He’s chosen to leave us literally penniless and hire an attorney instead!

  8. You should be able to go to any good-sized library and use their copy of the Alabama Code, which contains the Rules of Civil Procedure. I have forgotten which volume it’s in because it’s been so long since I used the books to look it up, but the librarian can help you find it.

    On your second question, here’s the text of Rule 60(b):

    (b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc.

    On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court. If leave of the appellate court is obtained, the motion shall be deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court. This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, supersedeas, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

    I don’t see the rationale for a Rule 60(b) motion just because you wish you hadn’t done this, but if you have an argument that fits within the rule, and you need relief from the settlement, you should file it.

  9. how long can alabama dhr collect current alimony after the back child support is paid off.this is in calhoun county and this is collected thru a child support enforcment witholding order. the child support was paid off in april yet they continue to garnish for current and back alimony.

  10. We are filing for full custody of my husband’s 3 children. His ex was served on July 4,2009. She filed for dismissal of the case and it was denied. She was given 14 days to answer on Aug. 5, 2009. Today is September 11 and she still has not submitted an answer. Does that mean that we win by default?

  11. Ah, don’t you wish! No, it means that Dad can now file an application that Mom be declared in default. Then the court will schedule a hearing at which Dad will give testimony. At any time during that process, Mom can appear and defend.

  12. That just doesn’t seem right. I mean it seems like if she doesn’t want to go through the process correctly then she should have to suffer the consequences. I mean it is not like we could just keep the kids and not get in trouble. Our system is just so gray. I mean there really isn’t a black and white for anything is there?

  13. I filed for divorce 2005 for domestic abuse,no court dates to be attended, lawyer called up in August and said husbands attorney sugested counceling,all the time they was plotting to get him back in house, then he moved out in Dec of the same year and filed for divorce fo incompatability,it is now 2009,house sold by judicial order for far less then appraised,made to go with Realtor in same County,No Alimony ,haven”t received a penny from sale of house or CD’s and Stocks,told I have to pay for buyersU-Haul to move in and there Attorney, I am homeless living on 690.00 a month,he my husband had a good incomeof 48,000 tax free a year plus other income on account in Oh,what are we going to do about fair judgement in alabama, This was in Barbour Cponty Court, My case is still not settled, and is causing me alot of health problems,because of the stress. By the way left withpot health insurance also.

  14. I’ve been living with this man for 12 years married for three. He is my sole support,no children, and about 3 years ago we argued and he went to a paralegal and served me divorce papers but that day,. even we stayed together.never went thru with the divorce. I about a year ago needed chemo tx I started noticing him being gone a lot then the tx took its toll and he said i was paranoid and sent me to a mental hospital needless to say I wasnt paranoid while there he used the old papers used 3 years previously. and filed 3 years later and never told me. then moved out of our apt. then came and took me ama out of the hospital,cancelled my insurance,and told me I dont have a home anymore. I never got to complete my chemo and now I have all these dr. bills. only about 3 months ago I found out he married a lady with cancer spent our savings on her and himself then she died. All the while I live in a condo paid for by him and yes He has relations with me.He often leaves me with no money or gas. I am seeking employment but Im trying to get a set aside motion,because he said he served me by mail. but the address he served me was sent to his best friends house who hates me and is gay. I,m trying to be emotionally stronger. He makes over 100,000 a year and still has lots of money in stocks , he also hides his money with his “best friend” He never lets me have more than 20 dollars so I can never go very far.If I question him he will threaten to make me homeless I go days without gas,food,toilet paper until Ive sat in this house alone I feel like I have stockhomes syndrome He has 2 new cars He goes to my old hairdresser and He wont let me have money to color my hair and He tells me how he puts twenty thousand in the stock market for fun but I have to beg for 20 dollars please tell me I have some kind of rights Im afraid to file this thru the family law facilitator and then he’ll really not help me.,

  15. I don’t know what to tell you. I take it you’re not satisfied with the present arrangement, but I also hear you saying you’re afraid to ask a court to help you. What can a lawyer do for you if you’re afraid to go to court?

  16. First of all thank-you for your response. Actually he’s become so abusive verbally and still continues to not give me any money. I usually dont even have enough gas in my car to do the things I need to do such as look for work. I utilize the computer he gave me to look for work and go online to see my kids, who live with their dad in tennesse. My point in telling you this stuff is because after reading your site I did become less afraid last week and called an attorney. Unfortunatly for me the attorney said I absolutly have a case but they need money and referred me to the family law facilitator. They are very busy but I waited for most of the day to see them and then the lady came to the rest of us waiting and said we had to make appointments. She gave me an appointment for two days later however I did get a copy of my divorce papers and it showed he served me. But the address he served me to was the address of his best friend. I actually was in the hospital on the day he sent the papers. I have not set foot in that friend of his house also he hates me. Is that legal to serve me like that? After I saw the family facilitator I went home and hid the papers. The day before I was to go he came over after work and was telling me he was looking for his bike hat. I have a two-story condo and the way he was acting made me feel uncomfortable so I sat in the chair. Mind you that a few weeks ago he did the same thing and messed up all the closets then told me actually yelled at me to clean the %$# closets or he wouldnt help me. I cleaned the closets and called him and asked if he had some money he hung up on me then two days later came looked in the closets and gave me twenty dollars. Back to the day before my appt. he tore thru the house then I heard the drawer open where I hid the papers. He never left that night and he was decent but continually saying things to make me feel like Im stupid to try anything and that he has the resources financilly to fight some half attempt by me to go to court an then what will I do. He said Ive always made stupid decisions but this would be the ultimate whatever he said I really didn’t know what to do. I didn’t go to the appointment but ever since that night which was Wed. and today is saturday Hes been mean to me he blocked me from calling his cell phone but he calls me I have no money and just minutes ago the police called and said I have to give him the computer. I actually am emotionally drained I feel like I don’t know what to do. I guess you can see why I had a suicide attempt in Oct. that is embarrassing to say but I have to tell you I always thought of myself as a strong minded person but hes very good at this, I more than ever want to go to the facilitator on tuesday. I’m not afraid anymore. Do you think I should go? If I do what will they help me With? can I get something filed to have him pay my attorney fees? How long til I see the judge to get a order for some financial help? I foresee no help from michael and have a felling my utilities and phone will be shut off next. Can the court see where all the money we had is? I know he has many bank accounts, mutual funds money in stocks. I also saw on the internet he owns a business in property in the hometoen we moved from he also has a home in Santa Barbera all of a sudden of course he doesn’t know I know, I know that he got this stuff after we were married. My grandmother was leaving me a pretty large inheritance however, when she died two weeks after michael got so mean then thats when I had my suicide attempt, So I went to a very nice hospital in Santa Barbera. While I was in treatment is when he filed for the divorce and he moved out of our apt. all of a sudden he called the hospital and told them he was coming to get me they told him I needed more treatment and he didn’t care I was released against medical advice. I thought I was going home he drove to Paso Robles handed me 60 dollars said you don’t have a home anymore and told me to go to Visalia to a shelter and maybe we could work things out I was pretty medicated,probably should not have drove but I thought no way I’m going to see a friend in fresno I didn’t get to Fresno very long and got robbed beat up and they stole my car. Michael wouldn’t come get me for days. Can I find out where all this money to buy the stuff he’s bought come from? by the way when I got back to Paso Michael had my car he said the police found it but he said I couldn’t have it back because if I appreciated it I wouldn’t have lost it. I see now being off all medicine completely and not having to live with him how completly abusive he is I actually do pretty well emotionally however, I do feel the pressure right now so If I get the guts to go Tuesday do you think it will take long to get help? sorry this is so long. What assets do I have rights to? we made these investment decisions when we got married, this is the same time he got promoted to being the controller at Lubrizol. We have moved from Visalia to Fresno to Paso Robles for his work. I’m going to ask the police to not make me give him the computer they still haven’t come yet I did call and leave a message with the officer so maybe he’s not coming. I hope I get a response by Tuesday once again thank-you for your help answering these questions.

  17. Lee,

    I am in Alabama. I just found out that there is a default hearing set for 5/2/2013 that was requested by my STBXs attorney. The reason is my failure to return interrogatories on time. Apparently there was an order to compel entered that I was never made aware of. My question is this: can I show up at this hearing? Anyway to get the divorce back on track? There is child custody involved. I’m regretfully having to go through this pro se. Any advice is welcomed and appreciated.

  18. Absolutely. Show up, and bring with you whatever answers you can to those interrogatories. And make sure the court has your correct address so you will get quick and sure notice of any future activity concerning the case.

  19. Thank you, Lee. How likely is it that my STBX will still be granted a default when I show up?

    Should I also go ahead and prepare a motion to vacate default judgement so that I can file it immediately, in the event a default is granted? Seeing as the court does have my correct mailing address shouldn’t I be receiving copies of everything that is filed or ordered? Is that not the purpose of the inclusion of certificate of service when filing all docs with the court?

    Thank you for your response!

  20. With most judges, when it’s a first lapse, unlikely. You’re welcome to prepare your motion, but I’d be surprised if you need it.

  21. Thanks, Lee. I truly appreciate your responses, and I don’t mean to be so inquisitive, but you are the first local guru to actually give hopeful advice. Any thoughts on what the judge will likely ask or any other way I can be better prepared? Other than dress code, manners and having the interrogatories. All of his is going on in AUTAUGA County, presided by Judge Ben Fuller if that makes a hoot to you.

    Thank you, again, Lee.

  22. Sure. Be humble and truthful, and apologize for the delay in responding to the interrogatories. Be human. Judges, most of whom are themselves human, tend to appreciate that.

  23. Hi! My brother has a situation but cannot afford an atty. He & his wife were separated for a couple mths (Nov-Jan ’13), she had him served with a self-prepared divorce complaint on Jan 8 however they reconciled the end of Jan. Unbeknownst to him, she filed for default divorce on 7/2. He is fine with the divorce, custody, child support but there is an order for him to execute a quitclaim deed awarding her sole possession of a piece of real property that was his (small piece of land with trailer that is paid for that belonged to him before they were even married). They already have marital property together (which he has no intentions of trying to make a claim on) & she has another property solely in her name. It seems a little underhanded how she went about this process & I don’t think a judge would have awarded her that , taking everything from him. They never went to court, he never heard anything else about a divorce since Jan now suddenly this. He has 42 days from 7/2 to appeal…he doesn’t want to appeal the divorce itself, just this 1 part..can he do it himself (perhaps a motion to set aside), if so, how? Thanks in advance for your time & advice!

  24. I am the plaintiff in a divorce case and I did not attend my trial and according to what I’ve heard a default judgment was entered. My attorney filed a continuance and withdrew from my case but it was not ruled on until the day of court where as my attorney told me there would be a continuance. I was in the hospital with our child and I have not been able to do anything because of her medical issues if I have 30 days to file a motion should I count the weekend as well? I did file a motion to set a hearing, pro se, based on merit and it was denied. Is it 30 days from my trial date or is that from when the judge actually signs an order?

Leave a Reply

Your email address will not be published. Required fields are marked *