Johnson v. Pirtle

• Decision Date: 21 May 2021
• Docket Number: 2200001
• Parties: Tiffany JOHNSON v. James PIRTLE
• Court: Alabama Court of Civil Appeals

339 So.3d 944

Tiffany JOHNSON

v.James PIRTLE

2200001

Court of Civil Appeals of Alabama.

May 21, 2021

Austin Burdick of Burdick Law Firm, Bessemer, for appellant.

Duchess Charette, Madison, for appellee.

HANSON, Judge.

Tiffany Johnson ("the mother") appeals from the judgment of the Madison Circuit Court ("the trial court") denying her motion to set aside a judgment entered in an action arising from a dispute between her and James Pirtle ("the father") regarding the custody of the parties’ child, K.P. ("the child"). The judgment was entered after the mother could not be located at the time the case was called for trial. For the following reasons, we reverse the judgment of the trial court and remand the cause for further proceedings.

Facts and Procedural History

The record indicates that, in 2015, the trial court entered an initial custody judgment granting the parties joint physical and legal custody of the child. In 2018, the trial court modified the 2015 custody judgment and granted the father sole physical custody of the child and ordered the mother to pay child support. On March 18, 2020, the mother, acting pro se, filed a petition to modify the 2018 modification judgment and also sought a finding of contempt against the father. On May 5, 2020, the father filed an answer and counterclaim responding to the mother's petition to modify custody, which pleading included a request to relocate with the child to Loganville, Georgia.

On May 13, 2020, the father filed an emergency motion for pendente lite custody and for the appointment of a guardian ad litem for the child because, he alleged, the mother had left the child alone with her half siblings for an extended period during her visitation period. The trial court appointed a guardian ad litem and conducted an evidentiary hearing on the motion on June 9, 2020, at which hearing the parties were present and testified. Following the hearing, the trial court denied the father's request for emergency pendente lite custody and set the case for a July 20, 2020, trial.

On July 14, 2020, the trial court issued an order stating that "the docket will not be ‘called’ on the morning of July 20[, 2020] .... The court will notify you when your case will be called. If you are not for trial first on July 20, [2020,] your case will be on call for the remainder of the week." Notwithstanding the July 14, 2020, order, the mother appeared for the docket call on the morning of July 20, 2020, and was instructed by trial-court personnel that her case was "on call." Nevertheless, when the parties’ case was called at 1:00 p.m. that same day, the mother could not be reached by telephone. At the outset of the trial, the trial-court judge stated on the record:

"This matter came before the court on several motions and requests filed by the [mother], who is not present. The court will note that the [mother] was in court at the beginning of this day for the docket call and was informed that the case would be on call. This court called this case today for 1 o'clock trial. The [father] is present, along with his attorney, ... and the guardian ad litem ... is present.

"Both the court's office and [the guardian ad litem] have tried to reach out to [the mother] to instruct her to be here today for this trial. It is approximately 1:45. She has neither responded to any messages sent by [the guardian ad litem] or a message by the court. In fact, her voice mailbox of her phone that we have was full, and she was nonresponsive.

"The court is dismissing all of the requests and motions filed by [the mother].

"There was also a counterclaim and a request to relocate filed by [the father], and I am going to hear testimony regarding that request now."

Thereafter, the trial court heard the father's testimony regarding his request to relocate with the child to Loganville, Georgia.

On July 23, 2020, the trial court issued a final judgment denying all relief requested by the mother and granting the father's request to relocate. The trial court's judgment stated, in pertinent part:

"This matter came before the court upon various petitions for modification and contempt filed by the [mother] and an answer and counterclaim filed thereto. This matter was set on a regularly published domestic relations docket and called for trial on July 20, 2020. [The father] appeared when called along with counsel. The Guardian ad Litem appeared when called. Numerous attempts were made to contact and call the [mother] to appear for trial but [the mother] failed to respond or appear. ...

"It is hereby ordered, adjudged and decreed as follows:

"1. Due to [the mother's] failure to appear at trial when called, all [of the mother's] motions, requests and petitions are hereby denied.

"2. [The father's] request to relocate is granted. ..."

On August 22, 2020, the mother, through retained counsel, filed a postjudgment "motion for new trial/set aside default."¹ In an attached supporting affidavit, the mother testified that she and the witnesses she had planned to call at trial had appeared for trial on the morning of July 20, 2020 at 9:00 a.m. but had been informed by court personnel that her case would not be heard on that date. The mother claimed that court personnel had informed her that her case would be called later in the week and that she would be called on the following day to let her know when the trial would occur. The mother stated that she had then instructed her witnesses to return home and had returned to her home. The mother explained that, once home, she had placed her cellular telephone on its battery charger and left it there and that she had not realized until later in the day that the court had tried to reach her. The mother argued that her failure to appear was, at worst, negligent, but was not willful or in bad faith. Furthermore, she argued that she had been deprived of her ability to present evidence in support of her claims and that she had a meritorious defense to the father's claim seeking to relocate with the child.

The trial court held a hearing on the mother's postjudgment motion on September 11, 2020.² On September 15, 2020, the trial court entered an order denying the mother's postjudgment motion. The mother timely appeals.

Analysis

On appeal, the mother argues that the trial court erred in denying her motion to set aside the "default judgment," and her arguments before this court -- along with the father's responses to those arguments -- primarily address the factors for setting aside a default judgment as established in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600, 603 (Ala. 1988). With regard to the father's counterclaim against the mother seeking leave to relocate with the child to Georgia, the trial court took evidence on the day of trial and then issued a judgment on that claim three days later. Alabama appellate courts have long recognized that a defendant's failure to appear at trial and "otherwise defend" may result in the entry of a default judgment against that defendant and have treated judgments entered against defendants for the failure to appear at a trial as being in the nature of default judgments. See, e.g., Triple D Trucking, Inc. v. Tri Sands, Inc., 840 So. 2d 869, 871 n.2 (Ala. 2002) (interpreting judgment entered following defendant's failure to appear at trial as a default judgment); Marks v. Marks, 181 So. 3d 361, 363 (Ala. Civ. App. 2015) (interpreting judgment dismissing former wife's petition to modify divorce judgment upon her failure to appear at trial as a default judgment); R.D.J. v. A.P.J., 142 So. 3d 662, 665 n.2 (Ala. Civ. App. 2013) (interpreting judgment entered against party who failed to appear at trial as a default judgment); D.B. v. D.G., 141 So. 3d 1066, 1070 (Ala. Civ. App. 2013) (noting that a default judgment may be entered for a failure to appear at trial); Burleson v. Burleson, 19 So. 3d 233, 238 (Ala. Civ. App. 2009) (treating divorce judgment entered against husband who failed to appear at trial as a default judgment); Sumlin v. Sumlin, 931 So. 2d 40, 46 n.2 (Ala. Civ. App. 2005) (noting that a default judgment may be entered for a failure to appear at trial); Alexander v. Washington, 707 So. 2d 254, 255 (Ala. Civ. App. 1997) ("A judgment entered after one party fails to appear at trial is treated as a default judgment."), overruled on other grounds by Ex parte Keith, 771 So. 2d 1018 (Ala. 1998) ; Bush v. James T. Johnson & Co., 411 So. 2d 139 (Ala. Civ. App. 1982) (treating judgment against defendant as a default judgment when defendant appeared at trial docket and announced "ready" and returned to office to await call for trial but clerk did not call defendant and judgment was entered following trial on the merits conducted in defendant's absence). Indeed, Kirtland itself arose from a judgment entered following a defendant's failure to appear at trial.

In this case, each party contends that the trial court's judgment was a default judgment, and each party contends that the trial court's denial of the mother's postjudgment motion is governed by the factors established in Kirtland. In light of the above cited caselaw and the contentions of the parties, we will proceed to consider the mother's appeal as to the aspect of the judgment addressing the father's counterclaim as being one in the nature of an appeal from a default judgment,³ and our review of that portion of the trial court's judgment will, therefore, be guided by the factors established in Kirtland. See Gary v. Crouch, 923 So. 2d 1130, 1136 (Ala. Civ. App. 2005) ("This court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal.").

Our standard of review with respect to a trial court's ruling on a motion to set aside a default judgment is whether the trial court's decision constituted an abuse of discretion. See Kirtland, 524 So. 2d at 603, and Smith v. Tyson Foods, Inc., 884 So. 2d 861, 863 (Ala. Civ. App. 2003). This court has explained:

"When

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