Sumlin v. Sumlin

• Decision Date: 02 December 2005
• Docket Number: 2040238.
• Citation: Sumlin v. Sumlin, 931 So.2d 40 (Ala. Civ. App. 2005)
• Parties: Barbara Ann Roebuck SUMLIN v. Richard Elgin SUMLIN.
• Court: Alabama Court of Civil Appeals

931 So.2d 40

Barbara Ann Roebuck SUMLIN v.Richard Elgin SUMLIN.

2040238.

Court of Civil Appeals of Alabama.

December 2, 2005.

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Jack W. Smith, Dothan, for appellant.

Submitted on appellant's brief only.

On Rehearing Ex Mero Motu

MURDOCK, Judge.

This court's opinion of November 4, 2005, is withdrawn, and the following is substituted therefor.

The wife in this divorce action appeals from the trial court's denial of her motion to set aside a default judgment divorcing the parties and awarding custody of the parties' 13-year-old daughter to the husband.We reverse and remand.

This action began on February 12, 2004, when the husband, Richard Elgin Sumlin, sued the wife, Barbara Ann Roebuck Sumlin, for a divorce.Acting pro se, the wife filed an answer to the husband's complaint.

The matter was set for trial initially on May 19, 2004.By agreement of the parties, however, the court ordered that the trial be continued until June 10, 2004.On June 9, 2004, the case was continued a second time, again pursuant to an agreement of the parties.Sometime before June 16, 2004, the wife retained an attorney who, on that day, filed on behalf of the wife an amended answer to the complaint, as well as a counterclaim.

On August 6, 2004, the wife filed a motion asking the trial court to set the case for trial.Thereafter, the trial court entered an order setting the case for trial on October 12, 2004.

On October 8, 2004, the wife filed a motion to continue; the trial court denied that motion.The trial court called the case for trial on October 12, 2004, and neither the wife nor her counsel were present at that time.Consequently, the trial court proceeded to enter a default judgment against the wife on the same day.An entry of the court's case action summary sheet reads: "October 12, 2004 — Defendant failed to appear.Entry of default made against defendant.Testimony taken.[¹]Plaintiff's attorney to submit proposed decree."Several days later, on October 18, 2004, the trial court entered a judgment of divorce awarding custody of the parties' 13-year-old daughter to the husband based upon the wife's default.

On October 29, 2004, the wife, through her counsel, filed a motion to set aside the default judgment, stating, in part, as follows:

"[T]his matter was set for trial on Tuesday, October 12, 2004, at 9:00 a.m., at which time counsel also had several criminal cases set for trial in the Circuit Court of Geneva County.

"Counsel states that on Thursday, October 7th and Friday, October 8th, he tried several times to see the trial judge at his office, and on one occasion in the courtroom, regarding a continuance in this cause, and he missed His Honor on all said occasions.He was unable to talk to the trial judge regarding the matter, as counsel discovered it was an extended holiday weekend (Columbus Day), and the courthouse was closed on Monday, October 11, 2004.

"This counsel further discussed the matter with plaintiff's attorney, Douglas Bates, Esq., and advised him of the conflict in his calendar and the urgency of the criminal cases set in Geneva County on said date, and he told him he was filing a Motion to Continue, said Mr. Bates said he would have to appear because his client would not cooperate with a continuance.Counsel then called the defendant who resides in north Alabama, which is over five hours traveling time away from Dothan, and he advised the defendant of the conflict and that he had filed a Motion to Continue, and he told her not to come as he would not be able to appear in Court on said date."

The case action summary sheet contains an entry in which the trial court denies the wife's motion to set aside the default judgment.The trial court states in this entry that counsel for the wife "was in the courthouse in Dothan at [the] time and on [the] date [the] case was set for trial."

The wife contends on appeal that the trial court abused its discretion in denying her motion to set aside the default judgment.We agree.

Rule 55(c), Ala. R. Civ. P., states:

"In its discretion, the court may set aside an entry of default at any time before judgment.The court may on its own motion set aside a judgment by default within thirty (30) days after the entry of the judgment.The court may also set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment."

"`By its plain language, Rule 55(c)[, Ala. R. Civ. P.,] confers broad discretionary authority upon trial judges.This discretion, however, is not boundless.Rule 1(c), Ala. R. Civ. P., states: "These rules shall be construed to secure the just, speedy and inexpensive determination of every action."Thus, Rule 1 mandates that trial courts construe Rule 55(c) to effectuate an expeditious, efficient, and just resolution of litigation. . . .SeeC. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Civil, § 2693 (2d ed.1983).'"

Ex parte Family Dollar Stores of Alabama, Inc.,906 So.2d 892, 898(Ala.2005)(emphasis added)(quotingKirtland v. Fort Morgan Auth. Sewer Serv., Inc.,524 So.2d 600, 604(Ala.1988)).

The Kirtland Court established a two-step process for evaluating motions under Rule 55(c).This two-step process is designed to balance the two competing policy interests of judicial economy and a litigant's right to defend on the merits.Kirtland,524 So.2d at 604.

The first of the two steps is that the trial court must 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 a 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, seeKirtland,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)(quotingFesmire v. Fesmire,738 So.2d 1284, 1287(Ala.Civ. App.1999), quoting in turnother cases that establish a court's "`"`duty to guard and protect the interest of its infant wards with scrupulous care'"'").

The second step of the two-step process was described in Kirtland as follows:

"[A]trial court's broad discretionary authority under Rule 55(c) should not be exercised without considering the following three factors: 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."

524 So.2d at 605(emphasis added).Nothing in Kirtland indicates that each of these three factors must be resolved in the movant's favor in order for the movant to obtain relief from a default judgment.The rule only states that the trial court must "consider" all three factors.The Supreme Court also referred to the Kirtland analysis as one requiring the court to "balance the equities."524 So.2d at 605.We also note that an approach in which all three factors are considered and "balanced," or weighed, against each other is consistent with federal jurisprudence.See generallyC. Wright et al., Federal Practice & Procedure, Civil§ 2693 (2d ed.1983).

In addition, a balancing approach is demonstrated by those cases in which our Supreme Court has held that a trial court abused its discretion in failing to set aside a default judgment and to allow a case to be decided on its merits, despite the fact that one or both of the second and third Kirtland factors was decided against the movant.In Fries Correctional Equipment, Inc. v. Con-Tech, Inc.,559 So.2d 557, 561(Ala.1990), for example, the Supreme Court held that a showing of culpable conduct — the third Kirtland factor — standing alone, did not preclude relief from the default judgment where the judgment was large, liability was sharply in dispute, and damages were both contested and speculative.While the present case does not deal with monetary damages, the judgment at issue, particularly insofar as it relates to the custody of the parties' daughter, is without question "large," and "liability" is sharply disputed.

In Aldridge v. Hamilton,708 So.2d 194(Ala.Civ.App.1997), this court held that the trial court had erred in failing to set aside a default judgment despite the fact that both the second and third Kirtland factors weighed against granting relief:

"[W]ith deference to the diligent and well-meaning trial court, we conclude that the default judgment should have been set aside.In Rooney v. Southern Dependacare, Inc.,672 So.2d 1(Ala.1995), our supreme court stated as follows regarding the factor of the defendant's culpable conduct:

"`[T]his Court has held that if there is a dispute as to liability and damages, even avoidance of service or ignoring service is not sufficient grounds for the trial court to refuse to set aside a default judgment.Rather, to deal with such situations, the trial court should impose costs on the defendants.'

"672 So.2d at 4(emphasis added).See alsoFries[ Correctional Equip., Inc. v. Con-Tech, Inc.], 559 So.2d [557,] 563[(Ala.1990)](`[A]defendant's avoidance of service might be grounds for imposition of costs or other sanctions, but should not be grounds for a refusal to set aside such a large default judgment.'(Emphasis added.))In discussing the factor of prejudice to the plaintiff, the court stated in Rooney and Fries that the prejudice must be substantial and that mere delay in the plaintiff's recovery on the claim is not...