Steele v. Jenkins (Ex parte Jenkins)

• Decision Date: 14 August 2020
• Docket Number: 2190272
• Citation: 318 So.3d 515
• Court: Alabama Court of Civil Appeals
• Parties: EX PARTE Loyd JENKINS (In re: Charon Steele v. Loyd Jenkins )

318 So.3d 515

EX PARTE Loyd JENKINS

(In re: Charon Steele

v.Loyd Jenkins )

2190272

Court of Civil Appeals of Alabama.

August 14, 2020

Sebrina L. Martin of Montgomery Divorce Law, Montgomery, for petitioner.

Lawrence F. Johnson, Birmingham, for respondent.

MOORE, Judge.

Loyd Jenkins ("the father") appeals from a default judgment entered by the Montgomery Circuit Court ("the trial court") in favor of Charon Steele ("the mother") modifying custody of the parties' two children ("the children"); he also challenges the trial court's denial of his motion to set aside the default judgment and the denial of his motion for relief from the judgment. We elect to treat the appeal as a petition for the writ of mandamus, and we grant the petition.

Procedural History

The trial court awarded the father sole physical custody of the children on August 21, 2017. On May 10, 2018, the mother filed in the trial court a form entitled "Petition to Modify." In that petition, the mother did not specifically request a change of custody of the children but, instead, requested the trial court's assistance with exercising the visitation and communication with the children to which she was entitled pursuant to the August 21, 2017, judgment.

On November 8, 2018, the trial court entered an order noting that service had not been perfected on the father and ordering the mother to take action within 14 days to serve the father or the matter would be dismissed. Thereafter, the mother filed in the trial court a printout from the United States Postal Service Web site indicating that, on May 29, 2018, a package had been delivered to Hutto, Texas, zip code 78634, and that the package had been left with an unnamed individual.

After the father had not filed any response to the petition, the mother, on June 5, 2019, filed a motion for a default judgment against the father. After a hearing, the trial court entered, on September 30, 2019, a default judgment awarding the mother sole legal and sole physical custody of the children. The judgment specifically reserved jurisdiction over the issue of child support pending the parties' submission of child-support forms within 10 days of the entry of the default judgment.

On October 30, 2019, the father filed a motion to set aside the default judgment; that motion was denied on November 27, 2019. On December 12, 2019, the father filed a verified motion for relief from the default judgment, purportedly pursuant to Rule 60(b)(1), (4), and (6), Ala. R. Civ. P., arguing that he had not been properly served. That motion was denied,¹ and the father filed a notice of appeal to this court on December 23, 2019.

Discussion

Initially, we note that the September 30, 2019, default judgment was not a final judgment because it reserved the issue of child support pending the parties' submission of child-support forms. See, e.g., S.M. v. C.A., 267 So. 3d 851, 852 (Ala. Civ. App. 2018). An appeal will not lie from a nonfinal judgment, id., and a "nonfinal order will not support a Rule 60(b), Ala. R. Civ. P., motion." Edwards v. Edwards, 951 So. 2d 699, 702 (Ala. Civ. App. 2006). Because of both the posture and the nature of this case, in which father asserts that the trial court has deprived him of custody of his children through a void judgment, this court, in its discretion, has elected to treat his appeal from the interlocutory default judgment as a petition for a writ of mandamus. See generally Ex parte Montgomery Cty. Dep't of Human Res., 291 So. 3d 1194, 1197 (Ala. Civ. App. 2019).²

" ‘[M]andamus will lie to direct a trial court to vacate a void judgment or order,’ Ex parte Sealy, L.L.C., 904 So. 2d 1230, 1232 (Ala. 2004), and ‘[i]f a court lacks jurisdiction of a particular person, or if it denied that person due process, then the court's judgment is void.’ Ex parte Pate, 673 So. 2d 427, 429 (Ala. 1995)."

Ex parte Bashinsky, 319 So. 3d 1240, 1253 (Ala. 2020).

"Failure of proper service under Rule 4 [, Ala. R. Civ. P.,] deprives a court of jurisdiction and renders its judgment void." Ex parte Pate, 673 So. 2d 427, 428–29 (Ala. 1995). "When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally." Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983). " ‘[S]trict compliance with the rules regarding service of process is required.’ " Johnson v. Hall, 10 So. 3d 1031, 1037 (Ala. Civ. App. 2008) (quoting Ex parte Pate, 673 So. 2d at 429 ).

Rule 4(i)(2)(B)(ii), Ala. R. Civ. P., provides that an attorney or party who attempts service by certified mail must, "[u]pon mailing, ... immediately file with the court an ‘Affidavit of Certified Mailing of Process and Complaint.’ " Rule 4(i)(2)(C), Ala. R. Civ. P., provides, in part, that "[s]ervice by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee's agent as evidenced by signature on the return receipt." Rule 4(i)(2)(C) further provides that an agent's authority to receive and deliver mail to the party is conclusively established "when the addressee acknowledges actual receipt of the summons and complaint or the court determines that the evidence proves the addressee did actually receive the summons and complaint in time to avoid a default."

In the present case, the father points out that the materials submitted to this court contain no "Affidavit of Certified Mailing of Process and Complaint" and no signed return receipt. Although the trial court found that the mother submitted a tracking form from the United States Postal Service indicating that service by certified mail was completed to "328 Brown Street,"³ that finding is not supported by the materials. The tracking form in the record indicates only that service was perfected in "Hutto, TX," without referencing the actual street address. There is no evidence indicating that the father or his agent received the certified mail containing the summons and complaint and signed for it.

The mother argues that the father admitted that he had received the summons and complaint when he acknowledged in his motion to set aside the default judgment that "[t]he father did not answer the petition." That statement is not an admission by the father that he received service. The mother also points out that the trial court forwarded a copy of the complaint to the father's Texas attorney in July 2019. However, generally speaking, "[n]either the Alabama Code nor our Rules of Civil Procedure authorize process service on the defendant's attorney ...." Colvin v. Colvin, 628 So. 2d 802, 803 (Ala. Civ. App. 1993). The mother has not argued or attempted to prove that any exception to this general rule applies in this case. Thus, we conclude that the materials before this court show that the father was never properly served.

The mother further contends that the father waived service.

"An argument as to insufficient or improper service of process may be waived if it is not raised in a motion to dismiss or in the first responsive pleading or a proper amendment thereto. See Rule 12(h)(1), Ala. R. Civ. P. A general appearance by a party either in person or through an attorney waives any objection to improper service of process. Kingvision Pay–Per–View, Ltd. v. Ayers, 886 So. 2d 45, 53 (Ala. 2003) (quoting Lonning v. Lonning, 199 N.W.2d 60, 62 (Iowa 1972) ) (‘ "A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court." ’). An appearance may be made by filing an answer or other pleading, id. (‘ "The filing of a pleading is a general appearance." ’), or by voluntarily appearing for and participating in trial. Boudreaux v. Kemp, 49 So. 3d 1190, 1197 (Ala. 2010) (stating that ‘it is true that [the Alabama Supreme] Court has previously acknowledged that a defendant may waive defects in service by voluntarily appearing in the proceedings’ but concluding that the parties in question had not appeared or participated in the proceedings at issue)."

D.D. v. Calhoun Cty. Dep't of Human Res., 81 So. 3d 377, 380-81 (Ala. Civ. App. 2011).

The materials before this court indicate that no attorney ever entered a general appearance on behalf of the father in the trial court. The father's Texas attorney contacted the trial court and requested copies of the pleadings in this case and in the previous case between the parties, but it is undisputed that he did so for the purpose of initiating a custody case on behalf of the father in a Texas court.⁴ The father's Texas attorney did not appear in the underlying Alabama proceedings at all. The father did retain an Alabama attorney to appear at the default-judgment hearing, but the father's Alabama attorney did not actually appear at the hearing, having arrived after it was concluded. The father's Alabama attorney subsequently filed a motion to set aside the default judgment on the basis that the trial court lacked subject-matter jurisdiction. An appearance by an attorney for the sole purpose of objecting to the jurisdiction of the court is not considered a general appearance. See Persons v. Summers, 274 Ala. 673, 681, 151 So. 2d 210, 215 (1963). Therefore, we conclude that no waiver of service of process took place in this case.

Because service was not perfected on the father in strict compliance with the Alabama Rules of Civil Procedure and because the father did not waive service, we conclude that the trial court's default judgment is void. Pate, 673 So. 2d at 428–29. We also conclude that, even if service had been proper, the default judgment would still be void because, as the father correctly asserts, he was denied due process when the trial court modified custody of the children when that specific relief was not requested in the mother's petition.⁵ See Rule 54(c), Ala. R. Civ. P. (providing that "[a] judgment...