Edwards v. Edwards

• Decision Date: 25 August 2006
• Docket Number: 2040987.
• Citation: 951 So.2d 699
• Parties: Jessica L. EDWARDS v. Stacy EDWARDS.
• Court: Alabama Court of Civil Appeals

951 So.2d 699

Jessica L. EDWARDS v. Stacy EDWARDS.

2040987.

Court of Civil Appeals of Alabama.

August 25, 2006.

James D. Hamlett, Montgomery; and Kelli F. McDaniel, Montgomery, for appellant.

John Mark Padgett of Battaglia Law Office, LLC, Montgomery, for appellee.

PITTMAN, Judge.

Jessica L. Edwards ("the wife") appeals from an order entered by the Montgomery Circuit Court on June 30, 2005, in which that court determined that a previous order that it had entered on October 13, 2004, was a final judgment.

The procedural history of this case is quite complicated. On October 17, 2003, Stacy Edwards ("the husband") filed a complaint in the trial court seeking a divorce from the wife. The husband first attempted to serve the wife by certified mail; when the husband first attempted to serve the wife, the wife, along with the parties' son who was born in December 2001, was living in Mississippi at the home of the wife's parents. When that method of service failed, the husband's attorney attempted personal service by using, without leave of court, a third-party "process server" who purportedly perfected service on the wife on January 26, 2004.

Initially, the husband's action was dismissed on February 27, 2004, after counsel for the wife filed a motion to dismiss the action alleging that the wife had not been properly served. The husband filed an objection to the dismissal of the action, and on March 30, 2004, the trial court set aside the dismissal and appointed a special process server to perfect service on the wife.¹ The process server delivered the complaint to Mississippi and left it with the wife's father on April 29, 2004. Thereafter, the wife's attorney filed another motion to dismiss, again asserting that service was not properly perfected because the wife had been hospitalized on April 28, 2004, in order to deliver a child (a girl) and had not been released from the hospital until May 1, 2004; the motion noted that the wife had been unavailable to accept personal service on April 29, 2004.

Following a hearing on August 12, 2004, the trial court denied the wife's second motion to dismiss and determined that service had been properly perfected on her on April 29, 2004. In addition, the trial court specifically held that the wife and the parties' son had sufficient contacts with the State of Alabama such that the trial court had obtained personal jurisdiction over them. On August 27, 2004, the husband filed an application seeking the entry of a default judgment against the wife. On October 7, 2004, the deputy register, sitting as a special master, heard the husband's testimony, and on October 13, 2004, the trial court entered a default-judgment order.² In that order, among other things, the husband was awarded custody of the parties' son, who had been living with the wife in Mississippi and had not seen the husband in almost a year. The following provision was contained in the default-judgment order:

"That a child, specifically a girl, was born at the end of April, 2004, or the beginning of May, 2004, since the parties have separated. [The husband] denies paternity of said child. [The husband] is presumed to be the father of the child. The child's name is unknown to the court and [the husband]. The court makes no findings as to that child's paternity at this time, however, reserving that issue until genetic testing can be completed. The court shall appoint a guardian ad litem to represent the interests of said child."

On November 1, 2004, the wife appeared through counsel and filed a motion to set aside the default-judgment order; on November 23, 2004, she also filed a motion to stay enforcement of the order. Subsequently, the trial court heard arguments on the wife's motions and denied those motions on December 6, 2004, noting that the wife had not filed an answer to the husband's divorce complaint. The wife then filed a number of other motions, including a motion for relief from the default-judgment order filed on February 11, 2005. Between December 2004 and February 2005, the trial judge who had been presiding over the case left office, and his successor was assigned to the case.

The trial court scheduled a hearing on March 25, 2005, to consider the wife's motion for relief and the husband's opposition to that motion. The trial court requested that both parties submit briefs to the court following the hearing. On June 30, 2005, the trial court entered an order that determined that the October 13, 2004, default-judgment order was a final judgment of divorce that resolved all of the issues raised in the husband's complaint.

The wife appeals and alleges that the trial court erred (1) in its determination that the October 13, 2004, default-judgment order was a final judgment and (2) in its denial of her motion for relief from that order. Although the trial court's failure to grant the wife relief from the default-judgment order pursuant to her motion might have otherwise presented this court with a difficult substantive issue for resolution,³ we conclude that the October 13, 2004, default-judgment order was not a final judgment such that the denial of relief from that order will support an appeal.

Although neither party has questioned our jurisdiction in this case, we may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003). The wife correctly asserts that the October 13, 2004, default-judgment order did not adjudicate the issues of child custody and child support as to the girl born to the wife in April 2004. Although Rule 54(b), Ala. R. Civ. P., authorizes a trial court to direct the entry of a final judgment as to one or more but fewer than all of the claims or parties, the record does not reflect that the trial court has ever made such a direction. Absent such a direction, we must test the October 13, 2004, default-judgment order by the ordinary principles of finality.

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