Davis v. Davis

• Citation: 183 So.3d 976
• Decision Date: 22 May 2015
• Docket Number: 2130821,2140086.
• Parties: Willie Jerome DAVIS v. LaQuana Vonsha DAVIS. Willie Jerome Davis v. Jerry M. Blevins, Intervenor.
• Court: Alabama Court of Civil Appeals

183 So.3d 976

Willie Jerome DAVIS

v.LaQuana Vonsha DAVIS.

Willie Jerome Davis

v.Jerry M. Blevins, Intervenor.

2130821

2140086.

Court of Civil Appeals of Alabama.

May 22, 2015.

L. Scott Johnson, Jr., of Johnson & White, LLC, Montgomery, for appellant Willie Jerome Davis.

H. Lewis Gillis of Means Gillis Law, LLC, Montgomery, for appellee LaQuana Vonsha Davis.

PER CURIAM.

Willie Jerome Davis ("the husband") appeals from a judgment ("the divorce judgment") of the Elmore Circuit Court ("the trial court") divorcing him from LaQuana Vonsha Davis ("the wife") and dividing their marital assets. This court assigned that appeal case no. 2130821. The husband also appeals from the trial court's subsequent order entered in the divorce action that, among other things, directed the wife to pay attorney Jerry M. Blevins an attorney fee for legal services he had provided to the husband in an unrelated criminal matter. This court assigned that appeal case no. 2140086.

This is one of two proceedings in which the husband has sought appellate review in this court in regard to the divorce action. In the other proceeding, he previously filed a petition for a writ of mandamus in which he sought, among other things, to have this court direct the trial court to supplement the record on appeal in case no. 2130821 with documentation that he said indicated that he had not received notice of the final hearing in the divorce action. Ex parte Davis, 169 So.3d 1038, 1042 (Ala.Civ.App.2014). This court granted the husband's petition in part, holding that the record on appeal in case no. 2130821 was due to be supplemented pursuant to Rule 10(f), Ala. R.App. P. Ex parte Davis, 169 So.3d at 1043.

In Ex parte Davis, this court set forth the following facts relevant to the dispositive issue in case no. 2130821, the appeal of the divorce judgment, stating:

"[The wife] filed a complaint for a divorce in the trial court on December 10, 2013. The husband, who is incarcerated in a federal prison in Kentucky,¹ timely answered the wife's complaint. On January 24, 2014, the trial court entered an order setting a final hearing in the matter for March 5, 2014. However, the materials indicate that the letter mailed to the husband containing that order was returned to the Elmore circuit clerk's office (‘the clerk's office’) because it had an ‘incomplete name/register number.’ A stamp on the envelope also states: ‘Return to sender, insufficient address, unable to forward.’ Although the postmark is unclear, the envelope is stamped with a date in February 2014. Furthermore, the docket sheet for this case available on the alacourt.com Web site, which contains information and data derived from the State Judicial Information System, includes a ‘miscellaneous' entry that states ‘bad address.’ The husband asserts that that entry reflects that the clerk's office received a return receipt postal card indicating an insufficient address for him.

"On March 5, 2014, the hearing was held as scheduled. No recording or transcript of the hearing exists, but it is undisputed that the husband did not participate in the hearing. On March 6, 2014, the trial court entered a default judgment against the husband and awarded the wife certain real property (‘the real property’) and a settlement check (‘the check’) issued by the United States Department of Agriculture arising out of litigation brought on behalf of African–American farmers. The husband asserts that he has an interest in both the real property and the check. In an affidavit submitted to the trial court, which is included in the materials before this court, the husband stated that, although he is not permitted to leave prison to attend a divorce hearing, prison rules would allow him to testify and take part in such a hearing by telephone.

"The husband filed a timely postjudgment motion, which the trial court denied on May 28, 2014. The husband then filed a timely notice of appeal. In this court, the appeal was assigned case number 2130821."

Ex parte Davis, 169 So.3d at 1040.

One of the provisions of the divorce judgment ordered the wife to execute the settlement check ("the check") issued by the United States Department of Agriculture arising out of litigation brought on behalf of African–American farmers and to use the proceeds to "extinguish the legal services debt owed by [the husband] to ... Blevins for the legal defense provided by attorney Blevins to the [husband] in the United States District Court Criminal case which led to the [husband's] conviction and incarceration in the federal penitentiary under a life sentence." The check had been made payable only to the husband.

On April 4, 2014, while the husband's postjudgment motion was pending, Blevins filed a motion to intervene in the divorce action. In his motion, Blevins asserted that the wife had paid him only $30,000 out of the proceeds of the check—the total amount of which, he said, he believed to be $52,000² —and had retained $22,000 for herself.³ The trial court granted the motion to intervene on May 28, 2014. On June 2, 2014, Blevins filed a motion for the entry of a judgment against the wife, seeking the money he said she had retained from the check. After considering a number of motions (including the husband's "motion for clarification on issue of jurisdiction," filed on June 5, 2014, in which he questioned whether the trial court had jurisdiction in the divorce action after May 28, 2014, when it denied the husband's postjudgment motion) and after conducting several hearings on those motions, the trial court entered an order in the divorce action on September 10, 2014, requiring the wife to pay Blevins $9,980.50. The September 10, 2014, order does not state that the award is to be paid from the proceeds of the check.

The husband, who is represented by counsel on appeal, filed a timely notice of appeal of the September 10, 2014, order. He also filed a motion to consolidate the appeals from the divorce judgment and from the September 10, 2014, order. This court granted the motion and entered an order consolidating the appeals on December 16, 2014.

On appeal, the husband contends that the trial court erred in denying his motion seeking to vacate the divorce judgment and a new trial. The motion was based on the husband's assertion that he was not given the opportunity to be heard at the March 5, 2014, hearing in the divorce action; thus, he says, he was denied his right to due process.

"It is generally understood that an opportunity for a hearing before a competent and impartial tribunal upon proper notice is one of the essential elements of due process." Ex parte Weeks, 611 So.2d 259, 261 (Ala.1992). "The hallmarks of procedural due process are notice and ‘the opportunity to be heard "at a meaningful time and in a meaningful manner." ’ " Alabama Republican Party v. McGinley, 893 So.2d 337, 344 (Ala.2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting in turn Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) ).

So important is procedural due process to our system of justice that the failure to provide parties with proper notice and an opportunity to be heard before the entry of a judgment can render that judgment void. See Ex parte Third Generation, Inc., 855 So.2d 489, 492–93 (Ala.2003). In Neal v. Neal, 856 So.2d 766, 781–82 (Ala.2002), our supreme court explained:

" ‘[I]t is established by the decisions in this and in Federal jurisdictions that due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’

" Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940)(emphasis added [in Neal ] ). The rule that a want of due process, so defined, voids a judgment is not redundant with the rule that a want of personal jurisdiction likewise voids a judgment, for a person already effectively made a party to litigation could, on some critical motion or for some critical proceeding within that litigation, be deprived of the ‘notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing,’ required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Frahn, supra. See Winhoven v. United States, 201 F.2d 174 (9th Cir.1952), Bass v. Hoagland, 172 F.2d 205 (5th Cir.1949), Cassioppi [v. Damico, 536 So.2d 938 (Ala.1988) ], and Seventh Wonder [v. Southbound Records, Inc., 364 So.2d 1173 (Ala.1978) ]."

(Final emphasis added.)

On January 2, 2014, less than a month after the wife filed the complaint in the divorce action, the husband, who was acting pro se at that time, answered the complaint and filed a motion for appointment of counsel or a representative to "represent him in the event that [the trial court] should set a hearing date in this case." In the motion, the husband explained that he was incarcerated and could not be physically present at any hearing. The husband also asked that, if someone could not be appointed to represent him, he "would like to be present by teleconference, internet, or by phone. The staff of this institution can be contacted and they have assured me that they can make any necessary accommodations." The trial court denied the motion.

On January 24, 2014, the trial court entered an order scheduling the final hearing in the divorce action for March 5, 2014. The record contains an envelope indicating that the notice of the scheduled hearing sent to the husband at the prison at which he is incarcerated was returned to the circuit clerk's office because the address did not include the husband's "Register Number" at the prison. The envelope also bears a stamp indicating that the address was insufficient and that the letter could not be forwarded. There is nothing in the record to indicate that an attempt was made to resend the notice with the husband's register number included in the address. The husband had included his...