Fuller v. Fuller

• Decision Date: 21 March 2008
• Docket Number: 2060677.
• Citation: 991 So.2d 285
• Parties: Justina B. FULLER v. Christopher Michael FULLER.
• Court: Alabama Court of Civil Appeals

991 So.2d 285

Justina B. FULLER v. Christopher Michael FULLER.

2060677.

Court of Civil Appeals of Alabama.

March 21, 2008.

Glenn Carlyle Noe, Sulligent, for appellant.

Ronald H. Strawbridge, Sr., of Strawbridge, Strawbridge & Strawbridge, LLC, Vernon, for appellee.

THOMAS, Judge.

Justina B. Fuller ("the wife") appeals from the trial court's denial of her motion to set aside a default judgment after failing to answer a divorce complaint filed by Christopher Michael Fuller ("the husband").

On November 28, 2006, the husband sued the wife for a divorce and for, among other things, custody of the parties' two minor children. The wife did not file an answer or otherwise respond. On January 24, 2007, the husband moved for a default judgment, and the trial court entered the wife's default on January 29, 2007. That same day, a copy of the entry of default was mailed to the wife. On February 1, 2007, the trial court entered its judgment divorcing the parties and, among other things, awarding "full-time" custody to the husband. Also on February 1, 2007, but after the entry of the judgment, the wife telephoned the trial court to inquire regarding the entry of default and the status of the divorce action. The wife also retained counsel to whom the trial court faxed a copy of the judgment on February 8, 2007. On February 23, 2007, the wife filed her motion to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P. On April 6, 2007, the trial court held a hearing on the wife's motion. On April 9, 2007, the trial court denied the wife's motion to set aside the default judgment. On May 2, 2007, the wife timely appealed.¹

On appeal the wife argues that the trial court erred 1) by denying her motion to set aside the default judgment, 2) by not affirmatively indicating that the Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), factors were considered in its order, and 3) by failing to set aside the default judgment as being void because of insufficient service of process pursuant to Rule 4(e) of the Alabama Rules of Civil Procedure. We reverse the trial court's judgment and remand the cause to the trial court on the basis that, pursuant to an analysis applying the Kirtland factors, the trial court exceeded its discretion by denying the wife's motion to set aside the default judgment.

The wife argues that she was not properly served with process pursuant to Rule 4, Ala. R. Civ. P. Because this issue implicates the trial court's jurisdiction, it is a threshold issue on appeal. See Gaudin v. Collateral Agency, Inc., 624 So.2d 631 (Ala.Civ.App.1993). The wife contends that because the certified-mail receipt reflecting attempted service was marked "unclaimed refused," service by ordinary mail pursuant to Rule 4(e) was not proper. In support of this proposition, the wife cites John H. Peterson, Sr., Enterprises, Inc. v. Chaney, 486 So.2d 1307, 1309 (Ala.Civ.App.1986)(holding that a default judgment was void when the return of attempted service by certified mail stated that it was "unclaimed" rather than "refused"). However, in Corcoran v. Corcoran, 353 So.2d 805, 807 (Ala.Civ.App.1978), this court determined that service pursuant to Rule 4(e) was proper because, among other things, "[t]he petition and summons was returned unclaimed due to the appellee-husband's refusal to accept the certified mail." Corcoran, 353 So.2d at 808 (emphasis added). Chaney, supra, on which the wife relies, is distinguishable from Corcoran and from the instant case.

In the absence of specific findings of fact, an appellate court will presume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Baker v. Baker, 862 So.2d 659, 662 (Ala.Civ.App.2003). Because the trial court did not make a specific finding that the wife had refused service but, nonetheless, denied her motion to set aside the default judgment, we presume that the trial court found that the wife had refused service.

A court specialist from the trial court clerk's office testified regarding service of process. Initially, service on the wife was attempted via certified mail. The certified mail was returned, and the return receipt was marked "unclaimed refused." On December 12, 2006, the summons and complaint were sent to the wife's address via ordinary mail pursuant to Rule 4(e); they were not returned. Moreover, the wife confirmed that nothing delivered to her via ordinary mail had been returned.

The wife testified regarding service of process, stating that she had not received the summons and complaint. The wife's testimony revealed that the summons and complaint that had been sent via certified mail, and which had later been returned as "unclaimed refused," had been addressed to her correct address. The wife admitted that she had checked the mail regularly and stated that she did not know of any reason why she would not have received an item mailed to her address. Although the wife testified that she had not received the summons and complaint, the case-action summary shows that the wife received items from the trial court clerk via ordinary mail. Indeed, the wife telephoned the trial court in response to her receipt of that mail. There is evidence of record from which the trial court could have drawn the reasonable inference that the wife refused to accept service and that the notation "unclaimed refused" was due to her refusal; therefore, the trial court did not err with regard to this issue. See Corcoran v. Corcoran, supra.

In Sampson v. Cansler, 726 So.2d 632 (Ala.1998), our supreme court reversed a trial court's judgment denying a motion to set aside a default judgment. The supreme court stated:

"In Kirtland v. Fort Morgan Auth. Sewer. Serv., Inc., 524 So.2d 600 (Ala. 1988), this Court held that a trial court has broad discretion in determining whether to grant or deny a defendant's motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments—judicial economy and the defendant's right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.

"Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so.... Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider `1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct.' Kirtland, 524 So.2d at 605."

Id. at 633. An analysis under the Kirtland factors is one requiring a balancing approach that weighs the factors against one another. Sumlin v. Sumlin, 931 So.2d 40, 45 (Ala.Civ.App.2005). Also, all three factors must be considered, but there is no requirement that all three factors be resolved in favor of the movant in order to set aside a default judgment. Id.

In Sumlin, this court reversed a trial court's judgment denying a motion to set aside a default judgment on the basis that the trial court had exceeded its discretion. In that case, this court discussed the two-prong Kirtland analysis, stating:

"The first of the two steps is that the trial court should presume that cases' should be decided on the merits whenever practicable.' Kirtland, 524 So.2d at 604. The two-step process begins with this presumption because `the interest in preserving a litigant's right to trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy.' 524 So.2d at 604. It is against this presumption and its recognition of the paramount nature of a litigant's right to defend on the merits that this court should interpret and apply the second step in the Kirtland analysis. Indeed, we can envision no species of case in which the `strong bias' in favor of reaching the merits, see Kirtland, 524 So.2d at 605, could be any stronger than in a case such as this involving custody of a minor child. See generally, e.g., Davis v. Davis, 743 So.2d 486, 487 (Ala.Civ.App.1999)(quoting Fesmire v. Fesmire, 738 So.2d 1284, 1287 (Ala.Civ. App.1999), quoting in turn other cases that establish a courts `"`"duty to guard and protect the interest of its infant wards with scrupulous care"'"')."

Id. at 44. The strong bias in favor of deciding cases upon the merits identified by the Kirtland court is particularly strong in domestic-relations cases. Sumlin v. Sumlin, supra; DeQuesada v. DeQuesada, 698 So.2d 1096 (Ala.Civ.App. 1996); and Evans v. Evans, 441 So.2d 948, 950 (Ala.Civ.App.1983); see also Buster v. Buster, 946 So.2d 474, 478 (Ala.Civ.App. 2006).

With the particularly strong bias and presumption in favor of reaching the merits in child-custody cases in mind, and based upon our review of the record, we hold that the trial court exceeded its discretion when it denied the wife's motion to set aside the default judgment.

The Kirtland court provided guidance for analyzing what constitutes a meritorious defense, the first Kirtland factor, stating:

"Although the showing of a meritorious defense is a necessary and practical requirement, the quantum of evidence needed to show a meritorious defense has caused some controversy. For this reason, we now establish a standard that will be both workable and consistent with our policy objectives. The defense proffered by the defaulting party must be of such merit as to induce the trial court reasonably to infer that allowing the defense to be litigated could foreseeably alter the outcome of the case. To be more precise, a defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default...