Default Judgement and Relocation

When you hear the opening facts of Hambright v. Hambright, Case No. 2040837 (Ala. Civ. App. January 27, 2005), you anticipate a rollicking good case offering precious guidance on the Alabama relocation statute, the Alabama Parent-Child Relationship Protection Act. What the case delivers instead is an unremarkable revisiting of the guidelines for setting aside a default judgment.

The case started with the mother’s announcement to the father after divorce that she and the parties’ child were moving from Hoover to Jackson, MS. The father filed to enjoin her from moving and to modify the divorce decree pursuant to the relocation statute. The mother responded that she and the child had moved to Brandon, MS (about 20 miles from Jackson), that she was moving for a job change that offered more money, that the father’s visitation with the child had not been interrupted or disturbed, and that she had notified the father of her intention to move. She also counterclaimed for an increase in child support.

There followed an extended period during which the mother failed to attend scheduled depositions and was in and out of touch with her attorney. Eventually, the mother’s Mississippi attorney withdrew on the grounds the mother wasn’t cooperating and that the attorney hadn’t been able to contact the mother for several months.

The trial court conducted a hearing not attended by the mother or her lawyer. It transferred child custody to the father and ordered the mother to pay child support.

Less than a month later, the mother filed a “motion for emergency hearing” and a “motion to alter, amend, or vacate and petition to show cause.” in her motions the mother said that she moved and therefore did not receive the letters her attorney sent her. She pointed out that the father had maintained regular contact with her throughout the period of her failures to appear and had told her nothing about them. After a hearing, the trial court denied the mother’s motions, and she appealed.

The appeals court first quoted ARCP 55(c) which permits the trial court in its discretion to set aside any default on motion filed before the judgment or within 30 days after the judgment. The appeals court then explored the test for setting aside default, articulated in Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600 (Ala. 1988).

The now-familiar Kirtland test has two steps. In the first, the trial court must presume that a case should be decided on the merits if it’s practicable to do so, because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. In the second, the trial court must apply a three-factor analysis. 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.”

In this case, the appeals court stated that (1) the mother had made allegations that, if proven at trial, would constitute a complete defense to the action; (2) the record did not suggest, and in fact the father did not allege, that substantial prejudice would result if the judgment were set aside; and (3) there was at least a genuine issue whether the mother engaged in culpable conduct.

The appeals court didn’t label it as such, but it’s safe to conclude from this case and the one like it in December, Sumlin v. Sumlin, that any case involving child custody should carry with it an even stronger presumption (an “extraordinary presumption,” if you will) in favor of allowing a trial on the merits if practicable.

2 thoughts on “Default Judgement and Relocation”

  1. Today I signed the application for entry of default in my divorce case. Today is Feb.11 and my soon to be ex was served in November. I am going through the volunteer lawyers in Bham and am wondering how much longer will it take before I am finally divorced?Any info would be helpful. I am in Alabama. Contact me here or on

  2. In most counties, the court would now schedule a hearing for you to appear and give testimony. Typically, barring something unexpected, your divorce would be granted within a few days after that hearing.

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