Morrow v. Dillard

• Decision Date: 27 October 2017
• Docket Number: 2160343
• Citation: 257 So.3d 316
• Parties: Melvin MORROW v. Lametrius Josenna DILLARD
• Court: Alabama Court of Civil Appeals

257 So.3d 316

Melvin MORROW

v.Lametrius Josenna DILLARD

2160343

Court of Civil Appeals of Alabama.

October 27, 2017

Certiorari Denied January 12, 2018

Alabama Supreme Court 1170119

Brittney S. Bragg, Montgomery, for appellant.

Brandon Wooten of Wooten Law Firm, LLC, Selma, for appellee.

DONALDSON, Judge.

Melvin Morrow ("the husband") appeals from a judgment of the Dallas Circuit Court ("the trial court") that, among other things, divorces him from Lametrius Josenna Dillard ("the wife"), grants the wife sole physical custody of the parties' child, divides the husband's retirement benefits, awards attorney's fees, and awards half of the husband's prospective worker's compensation settlement benefits to the wife as child support. For the reasons discussed below, we affirm the judgment in part, reverse the judgment in part, and remand the cause for further proceedings.

Facts and Procedural History

The wife filed a complaint for a divorce in the trial court on July 19, 2016. In her complaint, the wife asserted that she and the husband had been ceremonially married on July 30, 2011. She also asserted that the parties "had resided together as husband and wife for some years prior" to their ceremonial marriage. The wife also asserted that the parties had a 10-year-old child, that she should receive sole physical custody of the child, that the husband should be ordered to pay child support, that she should receive one-half of the husband's prospective worker's compensation benefits, and that she should receive one-half of the husband's retirement benefits.

On October 20, 2016, the wife moved for a default judgment. The wife attached to her motion an affidavit from her attorney in which he testified, among other things, that the husband had been personally served by the Dallas County Sheriff on August 23, 2016, with a copy of the summons and complaint for a divorce and that the husband had failed to answer or otherwise defend the wife's complaint. On November 1, 2016, the wife submitted an affidavit entitled "Default Testimony" in which she testified, in part:

"While [the husband] and I were ceremonially married on July 30, 2011 ... we had resided together as husband and wife for at least five (5) years prior to that. During that time, we held ourselves out as husband and wife. Out of this marriage, one child was born, ... date of birth was May 23, 2006.

"There exists a complete incompatibility of temperament between [the husband] and myself, that we can no longer live together as wife and husband. [The husband] has not worked for some period of time and has no income. He does nothing to help me around the house. He verbally abuses me. I have been paying all the bills for many months. [The husband] states that when he receives his workmen's compensation settlement, he is going to leave me.

"I am a fit and proper person to have the care, custody and control of our minor son and do not believe that [the husband] is a fit and proper person to have such permanent custody and care over our child. I should be granted physical custody of said child and [the husband] should have reasonable visitation rights.

"As stated above, [the husband] is currently unemployed and claims to be disabled but I believe that he is capable of employment and earning an income and paying reasonable child support. As stated above, he is presently prosecuting a workmen's compensation claim .... [The husband] has informed me that he is meeting with his attorney in Montgomery on October 24, 2016 and will perhaps settle his workmen's compensation case on that date or on the court date which is October 25, 2016. I now understand the case has been put off until a later date. I do not know the amount of any settlement that he may obtain but I contend that I should be awarded one-half (1/2) of any workmen's compensation amount payable to him for the maintenance, care and support of our minor child.

"In addition to the above, [the husband] has a vested retirement with International Paper Company, one of his former employe[r]s, with a current value of approximately $18,500.00 as shown by International Paper Retirement Plan Statement dated June 30, 2016, a copy of which is attached hereto.... I believe that I should be awarded at least one-half (1/2) of this retirement plan as alimony in gross or property settlement and that a lien should be imposed on the remainder to secure payment by [the husband] of future child support.

"I employed J. Garrison Thompson P.C. of Selma, Alabama as my attorney in this matter and he is representing me throughout these proceedings. Today, I have paid him the total sum of $855.00 which includes all court costs incurred to date. I do not have sufficient funds to pay Mr. Thompson an adequate fee for representing me in this cause and believe that [the husband] should be required to reimburse me for what I have paid plus a reasonable attorney's fee to Mr. Thompson."

On November 1, 2016, the trial court entered a "default decree" that divorced the parties based on incompatibility of temperament and granted sole physical custody of the parties' child to the wife. The trial court also ordered, among other things:

"5. As child support herein, the [the husband] is ordered to pay [the wife] (1/2) of any and all workmen's compensation benefits which he may receive in that certain workmen's compensation action filed by him against Lear Corporation EEDS and Interiors, being case number CV–2013–901029 in the Circuit Court of Montgomery County, Alabama.

"6. The Court retains jurisdiction of this cause for entry of additional orders regarding child support as may be necessary.

"7. As alimony in gross and property settlement, the Court does hereby award to the [wife] one-half (1/2) of any and all retirement benefits which [the husband] may have with International Paper Company. ...

"8. [The husband] is ordered to pay to J. Garrison Thompson, attorney for the [wife], attorney's fee and costs in the sum of $1,266.12, for which execution may issue."

On November 10, 2016, the husband filed a motion seeking to set aside the November 1, 2016, default judgment. In the motion, the husband claimed that he and the wife had been living together during the proceedings, that a hearing had been held on the wife's application for a default judgment without the knowledge of the husband, and that the wife had concealed the existence of that hearing. The husband also asserted, among other things, that he had not been properly served with the complaint and that the judgment violated § 25–5–86(2), Ala. Code 1975, with regard to the award of worker's compensation benefits. Only the first page of the husband's motion is contained in the record on appeal. On November 11, 2016, the trial court entered an order granting the husband's motion to set aside the default judgment and setting a hearing for January 30, 2017.

On January 26, 2017, the wife filed a motion seeking to have the trial court reconsider its order granting the husband's motion to set aside the default judgment. On January 30, 2017, the trial court entered an order stating that a hearing had been held and directing the parties to submit proposed orders within 10 days.

On February 3, 2017, the trial court entered the following order:

"This matter coming on to be heard upon the [wife's] Motion to Reconsider this Court's Order granting [the husband's] Motion to Set Aside the Default Judgement of Divorce entered herein on November 1, 2016; and,

"The parties being present before the Court, together with their respective attorneys, and the Court having considered the Motions above described, the representations made by counsel, and the entire record in said cause, does find as follows:

"1. The [husband] herein was duly served with Summons and Compliant [sic] by the Sheriff of Dallas County, Alabama, on August 23rd 2016, as shown by the return of service appearing of record, which return is prima facie evidence of the fact of personal service of process. Wright v. Rogers, 435 So.2d 90 (Ala. Civ. App. 1983).

"2. In addition to personal service by the Sheriff, the [husband] did receive notice of the proceeding by ordinary mail from [the wife's] attorney upon his filing Application for Entry of Default on October 20th 2016 and [the husband] continued to take no action.

"3. The [husband] has produced no evidence establishing lack of service, nor discharged his burden of establishing lack of service by clear and convincing proof. AAA Sewing Machine Co. v. Shelby Finance Company, 384 So.2d 126 (Ala. Civ. App. 1980).

"4. It therefore appears that the default was the result of [the husband's] own culpable conduct. Kirtland v. Fort Morgan Authority Sewer Services, Inc., 524 So.2d 600 (Ala. 1988).

"5. With regard to [the husband's] assertion that he is uneducated, the Certificate of Divorce filed herein on November 28th 2016 shows that [the husband] has a high school education. It further appears to the Court from the representations made by counsel that [the husband] has worked at responsible jobs including International Paper Company and Renosol Company and further, that at the time the Divorce proceedings were pending, [the husband] was represented by counsel in prosecuting a workman's compensation action.

"6. [The husband] incorrectly asserts that the Divorce Decree violates Section 25–5–81(2), 1975 Alabama Code in that the Alabama Supreme Court has held that child support is not a ‘debt’, nor constitutes an exemption under the Alabama Workmen's Compensation Laws. Ex Parte McCall, 596 So.2d 4 (Ala. 1992).

"7. [The husband] has further failed to show that he has a meritorious defense to the Complaint nor that [the wife] will not be unfairly prejudiced if the Default Judgment is set aside. Kirtland v. Fort Morgan Authority Sewer Services, Inc., supra ; IT IS

"THEREFORE ORDERED AND ADJUDGED BY THE COURT that the [wife's] Motion to Reconsider is hereby granted, the Order of the Court of November 11, 2016 granting [the husband's] Motion to Set Aside

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