917 So.2d 155 (Ala.Civ.App. 2005), 2030960, Radford v. Radford

Docket Nº2030960.
Citation917 So.2d 155
Opinion JudgeMURDOCK, Judge.
Party NameThomas J. RADFORD v. Jacqueline C. RADFORD.
AttorneyThomas J. Radford, appellant, pro se., Submitted on appellant's brief only.
Case DateJune 17, 2005
CourtAlabama Court of Civil Appeals

Page 155

917 So.2d 155 (Ala.Civ.App. 2005)

Thomas J. RADFORD

v.

Jacqueline C. RADFORD.

2030960.

Alabama Court of Civil Appeals

June 17, 2005

Appeal from Jefferson Circuit Court, DR-03-2978.

Page 156

Thomas J. Radford, appellant, pro se.

Submitted on appellant's brief only.

MURDOCK, Judge.

Thomas J. Radford, the husband, appeals from a judgment entered by the Jefferson Circuit Court dismissing, without prejudice, his complaint for a divorce from Jacqueline C. Radford, the wife.

In November 2003, the husband filed a complaint for a divorce in the Jefferson Circuit Court. The husband alleged the he and the wife were married in 1969, that the wife resided in Birmingham, that he resided in the Limestone Correctional Facility and was "serving a twenty five year term in the State's prison system," and that he had resided in Alabama for more than six months preceding the filing of the complaint. The husband also alleged that the parties had one adult child, that the parties owned no real property, and that the parties had already divided their personal property. Further, the husband alleged that there had been an irretrievable breakdown of the marriage and that there was no reasonable likelihood that the marriage could be preserved. He requested that the trial court enter a judgment divorcing the parties and that it grant such other relief as the court deemed equitable. Attached to the complaint was a sworn statement by the husband stating that the contents of his complaint were true and correct to the best of his knowledge.

An entry on the case action summary sheet indicates that the wife was served with process in January 2004. The wife never filed an appearance or a responsive pleading to the husband's complaint.

In March 2004, the husband filed a motion for a default judgment and a brief in support thereof, alleging that the wife had been served with the complaint, that she had failed to file an answer or otherwise defend against the husband's allegations, and that he was entitled to the entry of a default judgment under Rule 55, Ala. R. Civ. P.

In April 2004, the husband filed a petition for a writ of mandamus with the Alabama Court of Criminal Appeals. The husband requested that the Court of Criminal Appeals direct the circuit court judge to enter a default judgment against the wife and in favor of the husband. The Court of Criminal Appeals transferred the petition to this court; this court denied the husband's petition in May 2004.1

Page 157

According to an entry on the case action summary sheet, the trial court set the husband's case to be reviewed at a "call docket" scheduled for May 30, 2004. The record does not reflect what occurred at the call docket on May 30, 2004.2 However, according to June 2004 entries on the case action summary sheet, the case was continued and reset for the trial court's call docket on July 2, 2004. The trial court also set the case for trial on August 30, 2004. In mid-June 2004, the husband filed a motion requesting that the trial court enter an order requiring him to be transferred to the court for purposes of presenting "testimony" at the July 2, 2004, call docket.3 The trial court immediately entered an order denying the husband's transfer motion.

On July 2, 2004, the trial court entered an order of dismissal that stated:

"THIS CAUSE was set on peremptory call docket, and upon proper notice being given, no one was present in court to answer the call of this case. In consideration thereof, it is,

"ORDERED, ADJUDGED and DECREED that all issues pending herein are hereby dismissed for want of prosecution, without prejudice."

The husband appeals, contending that the trial court abused its discretion when it dismissed his complaint for lack of prosecution.4

After the trial court entered its judgment in this matter...

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