D.B. v. D.G.

• Decision Date: 06 September 2013
• Docket Number: 2120217.
• Parties: D.B. v. D.G.
• Court: Alabama Court of Civil Appeals

141 So.3d 1066

D.B.

v.D.G.

2120217.

Court of Civil Appeals of Alabama.

Sept. 6, 2013.

John Eric Burnum, Moulton, for appellant.

Donald A. Chapman, Decatur, for appellee.

DONALDSON, Judge.

D.B. (“the mother”) appeals from a default judgment entered by the Morgan Juvenile Court (“the juvenile court”) in favor of D.G. (“the father”), awarding custody of S.G. (“the child”), the parties' minor child, to the father and ordering the mother to pay child support. We affirm the juvenile court's determination that it attained jurisdiction over the mother; however, because we find that the mother was entitled to a hearing on her motion to set aside the default judgment, we reverse the denial by operation of law of her motion to set aside the judgment and remand the case.

The child was born on September 26, 2009. The mother and the father were never married, but they lived together in the same residence in Morgan County until April 2012, when the father temporarily moved out of the house. On April 16, 2012, the father filed a complaint to establish paternity in the juvenile court. The father also sought custody of the child, subject to the mother's right to visitation, as well as child support from the mother. The record reveals that the clerk issued a summons for the mother with the complaint on April 27, 2012. The return of service in the record indicates that the mother was personally served with the complaint by private process server on May 1, 2012, in Morgan County. The street address for the mother, provided to the juvenile court by the father, was the location of the house where the mother and the father had resided together until April 2012. The record reveals that the mother moved out of the house sometime in June or July 2012, but that the juvenile court was never provided a different address for her until after the entry of the default judgment.

On April 27, 2012, the juvenile court set a trial date for June 6, 2012, to address the issue of paternity. The record does not clearly establish that notice of the hearing was sent out with the summons and complaint. The juvenile court's order required the parties to submit to genetic testing and directed the mother to appear on June 6 with the child. On June 6, 2012, the father appeared for the paternity trial and submitted to the test. The mother failed to appear. Subsequently, the juvenile court issued an order for the mother to appear before the court for genetic testing on July 10, 2012. The mother appeared with the child on July 10, 2012. She asserts on appeal that she received oral notice of the hearing from the father and did not receive the written order. On the client-authorization form, which she was required to complete before submitting to the genetic test, the mother failed to provide an address. On July 10, 2012, the juvenile court set another hearing for August 27, 2012. Notice of the hearing was presumably sent to the mother at the address initially provided by the father when the complaint was filed. The father appeared with counsel on that date, but the mother did not appear. Following the hearing, the juvenile court entered an order adjudicating D.G. to be the father of the child and awarding him visitation. The juvenile court set the issues of custody, visitation, and child support for trial on November 8, 2012. The record indicates that the juvenile court sent notice of the trial setting to the mother and the father on August 27, 2012.

The juvenile court held trial as scheduled on November 8, 2012. The father appeared, represented by counsel, and the trial court received his testimony. The mother, again, failed to appear. The father testified that the mother had moved out of the residence at some point in June or July 2012 and that at the time of trial she was living in a trailer park. The juvenile court entered a default judgment on November 8, 2012, awarding the father sole physical and legal custody of the child. The mother was awarded unsupervised visitation and was ordered to pay child support. The juvenile court ordered the mother to provide the court and the father with an address where she resided.

On November 14, 2012, the father filed a motion for a “pick up order,” in which he alleged that the mother, with the father's permission, had picked up the child on November 12, 2012, at the father's place of business, but that she had failed to return the child to the father pursuant to the custody order. The father's motion also contained an assertion that the mother was not aware that the November 8, 2012, custody judgment had been entered until the father informed her of the judgment when she picked up the child on November 12.

On November 14, 2012, an attorney entered an appearance in the case on behalf of the mother. On the same date, the mother filed a motion styled “Verified Motion to Alter, Amend, and Vacate 11/8/12 Default Judgment for Custody Due to Improper Service/Lack of Notice and Request for New Trial.” In the body of the motion, the mother averred, under oath, that she had not been served with the summons and complaint and that she had not received notice of the November 8, 2012, trial date. The mother also filed a response in opposition to the father's motion for a pick up order.

On November 14, 2012, the juvenile court granted the father's motion for a pick up order, authorizing any law-enforcement officer in the State of Alabama to pick up the child and return the child to the custody of the father. On November 30, 2012, 16 days after the mother filed her postjudgment motion and without conductinga hearing on the motion, the juvenile court purported to enter an order denying the mother's motion to alter, amend, or vacate the judgment.

On November 29, 2012, the father filed a motion requesting that the mother's visitation to be supervised, which the juvenile court granted on November 30, 2012, without a hearing.

On December 4, 2012, the mother filed a notice of appeal to the Morgan Circuit Court. On December 7, 2012, the juvenile court certified the record as sufficient for a direct appeal to this court. Thereafter, the mother filed a notice of appeal to this court on December 10, 2012.

On appeal, the mother argues that she was not properly served with the complaint. If her assertion is true, the juvenile court would not have attained personal jurisdiction over the mother to enter the default judgment, thus rendering the judgment void. “ ‘ “ ‘ “When the service of process on a defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.” ’ ” ' ” LVNV Funding, LLC v. Boyles, 70 So.3d 1221, 1227 (Ala.Civ.App.2009) (quoting Dennis v. Still Waters Residential Ass'n, 18 So.3d 959, 961 (Ala.Civ.App.2009), quoting in turn Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003), quoting in turn Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993), quoting in turn Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.1983)). However, the completion and filing of a return of service is prima facie evidence that the party to whom the service was sent has been properly served. Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 658 (Ala.2001). See also Hooie v. Barksdale, 93 So.3d 942, 945 (Ala.Civ.App.2012).

“A party's uncorroborated statement denying service upon him is not adequate proof to authorize the invalidation of a [process server's] return. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978). Stated differently, the burden of proof to overcome the presumption of the correctness of a [process server's] return is not met by a bare denial of service by a contesting party, but it is required that additional evidence be presented to strengthen or confirm such a denial before the required burden is met. Such is the definition of ‘corroborating evidence.’ Smith v. Smith, 268 Ala. 348, 106 So.2d 260 (1958).”

Nolan v. Nolan, 429 So.2d 596, 598 (Ala.Civ.App.1982).

In the present case, the service return in the record indicates that the mother was served by private process server on May 1, 2012, thus establishing prima facie evidence that the mother was served. The mother has offered no corroborating evidence to substantiate her denial of service of process. In fact, the father's testimony indicates that the mother lived at the residence noted on the summons until June or July 2012. Without further proof having been offered to substantiate the mother's argument, we conclude that the juvenile court was correct in rejecting the mother's assertion that service was not proper. Further, the mother waived any defect in service of process by submitting herself to the jurisdiction of the juvenile court when she appeared for genetic testing.

“In Kingvision Pay–Per–View, Ltd. v. Ayers, 886 So.2d 45, 53 (Ala.2003), the Alabama Supreme Court quoted approvingly from Lonning v. Lonning, 199 N.W.2d 60, 62 (Iowa 1972), for the proposition that:

“ ‘ “The rules which govern our consideration of this case are well established.The filing of a pleading is a general appearance. Rule 65(c), Rules of Civil Procedure. Jurisdiction of the person in a civil case may be acquired by service of notice in the manner and form prescribed by law, or by defendant's general appearance. Boyer v. Iowa High School Athletic Association, 258 Iowa 285, 138 N.W.2d 914 (1965); Emery Transportation Company v. Baker, 257 Iowa 1260, 136 N.W.2d 529 (1965); Baker v. Baker, [248 Iowa 361, 81 N.W.2d 1 (1957) ]. A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court. Humboldt Livestock Auction, Inc. v. B & H Cattle Co., 261 Iowa 419, 155 N.W.2d 478 (1967); O'Connor v. Youngblade, 250 Iowa 808, 96 N.W.2d 457 (1959). He may not thereafter avoid that jurisdiction by special appearance. Gardner v. Beck, 195 Iowa 62, 189 N.W. 962 (1922); 5...