More About Setting Aside a Default Judgment

The Alabama Court of Civil Appeals has provided yet another illustration of its strong preference for setting aside default judgments when they concern the custody of a minor child. The case is Buster v. Buster, Case No. 2040191 (Ala. Civ. App. June 6, 2006). This one seems particularly appealing, so the appeals court’s ruling is no surprise.
The husband and father filed for divorce and obtained personal service on the wife and mother. Before he obtained personal service, however, he filed for pendente lite custody of the child, and the wife knew of the setting of the pendente lite hearing on July 8, 2004 (seven days after the default period ran). The day after the 30-day default period had run, the husband applied for default. That same day, the trial court took ore tenus testimony from the husband and entered a judgment of divorce.

The wife attempted to file an Answer and Counterclaim on either July 6 or July 7 (within a week after the default period ran), but the court refused the filing and instead gave her a copy of the final judgment of divorce. On July 14 (a little less than two weeks after the default period had run), the wife filed a motion to set aside the default judgment. In it she alleged that she had attempted to find counsel as soon as she was served but that she was delayed in raising sufficient funds, that she had mistakenly believed that because the pendente lite hearing was set for July 8 she had until then to file an Answer, and that the child was living with the husband only because he had forcibly removed the child from the wife. The wife requested that the court set aside its default judgment, allow her to file her answer and counterclaim, and reschedule the pendente lite hearing.

The trial court set the wife’s hearing for September, 2004. After the hearing, the trial court failed to enter an order disposing of the wife’s order, so it was denied by operation of law 90 days after she filed it pursuant to Alabama Rule of Civil Procedure 59.1. The mother appealed.

The appeals court applied the familiar two-pronged test of Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, (Ala. 1988). The first prong of the test is that the trial court must presume that cases “should be heard on the merits whenever practicable.”

The second prong is the application of three factors: (1) whether the defendant has a meritorious defense; (2) whether the defendant will be unfairly prejudiced if the defailt judgment is set aside; and (3) whether the default judgment was a result of the defendant’s own culpable conduct.

The appeals court quoted with approval its own language in Sumlin v. Sumlin: “Indeed, we can envision no species of case in which the ‘strong bias’ in favor of reaching the merits, see Kirtland, 524 So. 2d at 605, could be any stronger than in a case such as this involving custody of a minor child.”

The appeals court then looked at the three Kirtland factors:

Based on our review of the record and the parties’ arguments, and in the context of the particularly strong presumption in favor of deciding child-custody cases on their merits, we cannot conclude that a weighing of the three factors to be considered in the second prong of the Kirtland analysis justified the trial court’s denial of the wife’s motion to set aside the default judgment. There is no suggestion that the husband would have been unfairly prejudiced by setting aside the default judgment; nor is there any evidence indicating that the wife was guilty of the type of culpable conduct that might mitigate in favor of the trial court’s refusal to set aside the default judgment. In fact, in his appellate brief, the husband focuses his argument on the first of the three Kirtland factors, i.e., whether the wife sufficiently demonstrated the existence of a potentially meritorious defense.

Finding that the trial court had not balanced the Kirtland factors with the “requisite strong bias in favor of deciding a custody case such as this on its merits,” the appeals court reversed and remanded the case.