Burleson v. Burleson

• Decision Date: 27 March 2009
• Docket Number: 2071218.
• Citation: Burleson v. Burleson, 19 So.3d 233 (Ala. Civ. App. 2009)
• Parties: Timothy BURLESON v. Vicki A. BURLESON.
• Court: Alabama Court of Civil Appeals

19 So.3d 233

Timothy BURLESON v.Vicki A. BURLESON.

2071218.

Court of Civil Appeals of Alabama.

March 27, 2009.

Matthew B. LeDuke of Lowe, Mobley & Lowe, Haleyville, for appellant.

Jerry F. Guyton, Hamilton, for appellee.

MOORE, Judge.

Timothy Burleson("the former husband") appeals from an August 18, 2008, order entered by the Marion Circuit Court, denying his motion to set aside a default judgment that was entered against him and in favor of Vicki A. Burleson("the former wife") in a divorce action on October 13, 2006.We affirm.

On November 10, 2003, the former wife filed a complaint in the Marion Circuit Court("the trial court"), seeking a divorce from the former husband.The former husband filed an answer through an attorney on December 8, 2003.The pleadings revealed a dispute between the parties regarding several issues, including the custodial arrangement for the parties' three minor children, the basis for calculating the former husband's wages for purposes of child support, postminority support for the children, the disposition of the marital residence, and the payment of the mortgage on the marital residence.After a hearing, the trial court entered a pendente lite order on December 23, 2003, awarding custody of the children to the former wife, with scheduled visitation being awarded to the former husband, and ordering the former husband to pay the former wife $500 per month in child support and $890 per month to cover one-half of the monthly mortgage expense.The order also allowed the former wife to remain in possession of the marital residence.The evidence indicates that the former husband paid approximately $4,900 in child support and that the former husband's father paid $1,100 in child support to the former wife on behalf of the former husband.The former husband's father, who was a cosigner on the parties' mortgage, also paid 16 payments of $890 from November 2003 to February 2005.

Following the entry of the December 23, 2003, pendente lite order, the former husband apparently failed to pay his attorney.On April 15, 2004, the trial court entered an order allowing the attorney to withdraw from the case.¹Thereafter, the former husband did not retain an attorney to represent him in the divorce action, and he did not inform the clerk of the trial court of his address for service of notice of further proceedings.

On October 7, 2004, the trial court set the divorce action for a final hearing.According to the former wife, that hearing did not take place because of the withdrawal of the former husband's attorney.The trial court then set a hearing to take place on June 14, 2005.According to the former wife, the trial court canceled that hearing when the former husband did not appear.

On June 23, 2006, the trial court again set the final hearing to take place on July 20, 2006.The trial-court clerk sent notices of the hearing to the former husband,² but those notices were returned bearing marks on the envelopes indicating "no mail receptacle" and "not deliverable as addressed-unable to forward."On July 20, 2006, the trial court called the case for trial.The former husband did not appear.The former wife's attorney stated on the record that he had sent notices of the hearing to the former husband's parents.The former wife's attorney also represented that he had attempted to personally serve the former husband through the sheriff of Wilcox County without success.Additionally, the former wife testified that she had left a message on the former husband's answering machine indicating the date of the hearing.She also testified that she did not have an address for the former husband.

The trial court proceeded to take testimony from the former wife on the issues presented in her divorce complaint.Based on that testimony, the trial court entered a judgment divorcing the parties on October 13, 2006.That judgment awarded the former wife sole custody of the parties' children; found that the former husband was voluntarily unemployed and imputed to him income of $3,000 per month; awarded the former wife $863 per month in child support; found the former husband in contempt and awarded the former wife $10,000 in back child support; awarded postminority support for the children; ordered the former husband to pay all medical expenses incurred on behalf of the minor children not covered by the former wife's medical insurance; ordered the former husband to pay $890 per month to cover one-half of the monthly mortgage expense on the marital residence; awarded the former wife $36,945 for reimbursement of moneys expended and borrowed to support her and the children; awarded the former wife all personal property in her possession; awarded the former wife $20,000, representing one-half of the amount the former husband had withdrawn from a 401(k) account just before the divorce action was filed; and awarded the former wife $800 per month in alimony.

Thereafter, on August 3, 2007, the trial court entered a judgment finding the former husband in contempt of court for failing to pay child support, and it issued a warrant for his arrest.On January 13, 2008, the former husband was arrested.

The former husband filed a motion to set aside or to modify the divorce judgment on March 5, 2008.In that motion, the former husband asserted that the trial court should exercise its discretion under Rule 60(b)(6), Ala. R. Civ. P., to vacate the divorce judgment because, the former husband alleged, he had not received notice of the trial date and he was suffering from a chemical dependency.The former wife opposed that motion.The trial court set a hearing on the motion, which took place on June 19, 2008.

At the hearing on the motion to set aside the divorce judgment, the former husband testified that he did not receive notice of the entry of the divorce judgment; that his January 13, 2008, arrest constituted the first notice to him of the divorce judgment; that, after his attorney withdrew from the divorce case, he had moved several times over the next few years; that, although he was aware that his divorce case remained pending, he did not take any steps to check on its progress; that he had kept in contact with the former wife but that they did not discuss court dates; that he did not receive any telephone messages from the former wife; that he had lost contact with his parents for a period; that, at the time the divorce judgment was entered, he was abusing alcohol; that, at some point in 2007, he had become addicted to methadone; and that he had enrolled in an alcohol-rehabilitation program in December 2007.The former husband also testified that, despite his alcohol abuse, he had worked between 2004 and 2007 without missing a day and that he had not paid the former wife any of the amounts ordered in the divorce judgment.

The former wife testified as follows: that she had relied on her savings, her wages from her employment as a school teacher, and on support from her parents to sustain herself and the children; that, after the former husband's father ceased paying one-half of the mortgage, she had soon run out of money, the mortgage had been foreclosed on, and, as a result, she had lost the marital residence; that she and the children had moved into a rental house; that she had filed for bankruptcy and, upon her discharge from bankruptcy, she had retained only an automobile and some furniture; and that, because she could not afford to assist the parties' oldest child with her educational expenses, the child had been forced to drop out of college.

The former husband's father also testified at the hearing on the motion to set aside the divorce judgment.He denied receiving any notice from the former wife's attorney regarding the final hearing in the divorce action and testified further that he had not known the former husband's whereabouts at the time of the parties' final divorce hearing.

Following the June 19, 2008, hearing, the trial court accepted briefs from the parties.On August 18, 2008, the trial court denied the former husband's motion to set aside the divorce judgment.³The former husband asked the trial court to reconsider that ruling on September 8, 2008.⁴The trial court denied the "motion to reconsider" on September 12, 2008, stating:

"The Court remembers well that [the former husband] . . . simply chose to quit participating in his case once a ruling he did not like on temporary issues was issued.This is evidenced by the fact that he almost immediately terminated the services of his attorney, refused to participate further in the divorce action and basically dropped out of sight for an extended period.While it is argued that [the former husband] was abusing alcohol at the time, there was no credible evidence offered to show that he was incapable of participating in this case. . . ."

The former husband timely appealed on September 26, 2008.

"A trial court's decision to deny a motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., for relief from a final judgment is itself a final judgment that will support an appeal; however, the only matter reviewable in such an appeal is the propriety of the denial."Williams v. Williams,910 So.2d 1284, 1286(Ala.Civ.App.2005).Except for motions brought pursuant to Rule 60(b)(4), whether a movant has established grounds for relief under Rule 60(b) is a matter within the sound discretion of the trial court.Ex parte Wal-Mart Stores, Inc.,725 So.2d 279(Ala.1998).On appeal, this court will reverse a judgment denying relief under Rule 60(b) only if the trial court has exceeded its discretion.SeePrice v. Clayton,18 So.3d 370(Ala.Civ. App.2008).

The parties agree that the trial court entered a default judgment against the former husband because of his failure to appear at the final hearing on July 20, 2006.SeeSumlin v. Sumlin,931 So.2d 40, 46 n. 2(Ala.Civ.App.2005)(noting that trial court can enter a default judgment under Rule 55(a), Ala. R....