Summary
In Dubose v. Dubose, 369 So. 3d 1061 (Ala. Civ. App. 2022), this court held that it could not correct a judgment awarding visitation "as agreed upon by the parties" because the noncustodial parent had failed to point out to the trial court that the judgment erroneously gave the custodial parent discretion over the visitation schedule and to seek correction of that error in the proceedings below.
Summary of this case from A.R. v. T.R.Opinion
2200737
05-06-2022
Demetric James Dubose v. Jana Ward Dubose
Appeals from Sumter Circuit Court (DR-16-900019)
THOMPSON, PRESIDING JUDGE
On October 3, 2016, Demetric James Dubose ("the husband") filed in the Sumter Circuit Court ("the trial court") a complaint seeking a divorce from Jana Ward Dubose ("the wife"). In his complaint, the husband also sought a division of the parties' marital property and debts and an award of custody of "one or all of the parties' children." The wife filed an answer and a counterclaim in which she sought a divorce, a division of the parties' marital property and debts, an award of custody of the parties' three minor children, and an award of child support.
The trial of the action was scheduled, and rescheduled, several times, often on the motion of one of the parties. In pertinent part, the record demonstrates that, on February 27, 2020, the wife filed a motion to continue the trial, which was then scheduled for March 4, 2020, because, she said, the husband's attorney had been arrested on several criminal charges; the trial court entered an order granting that motion on March 2, 2020. On September 8, 2020, the trial court entered another order stating:
"The above-styled action is hereby continued on the motion of the [wife] because it appears that [the husband's] notice went to his attorney … who is presently not practicing law. [The husband] has thirty (30) days to obtain an attorney.
"It is further ORDERED that the Clerk of Court notify [the husband] of any future hearings in this cause at [the husband's home address]."
It is not clear if the trial court was referring to the wife's February 27, 2020, motion, or to a subsequent motion made by the wife that is not included in the record.
On March 2, 2021, the trial court conducted a trail at which it received ore tenus evidence, but the husband did not appear at the trial. On March 9, 2021, the trial court entered a judgment divorcing the parties, dividing their marital property and debts, and awarding the parties joint legal custody of their three children, with the wife having sole physical custody of the children. The March 9, 2021, judgment also awarded the husband visitation at all reasonable times agreed upon by the parties and ordered the husband to pay the wife child support.
On March 10, 2021, a new attorney filed a notice of appearance on behalf of the husband. Also on that date, the husband filed a postjudgment motion seeking to set aside the March 9, 2021, judgment and requesting a new trial. The husband then filed a motion to set his postjudgment motion for a hearing. On May 27, 2021, the trial court entered an order denying the motion to set the postjudgment motion for a hearing. The March 10, 2021, postjudgment motion was denied by operation of law on June 8, 2021. Rule 59.1, Ala. R. Civ. P. ("No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59[, Ala. R. Civ. App., ] shall remain pending in the trial court for more than ninety (90) days …."). On June 16, 2021, the husband timely filed a notice of appeal. Rule 4(a)(1) and (3), Ala. R. App. P. (requiring a notice of appeal be filed within 42 days of the entry of a judgment or, if applicable, the denial of any postjudgment motion).
On appeal, the husband first argues that the trial court erred in denying his postjudgment motion because, he says, he was not provided an opportunity to be heard. The husband first cites Knight v. Davis, 356 So.2d 156 (Ala. 1978), for the proposition that a new trial should be granted after the entry of a default judgment when no notice was provided concerning the trial date. In that case, Larry Knight's attorney was allowed to withdraw three days before the scheduled trial, and the trial court rescheduled the matter for trial three days later. Knight was not provided notice that the trial had been rescheduled, and a default judgment was entered against Knight when he failed to appear at trial. Our supreme court reversed the default judgment, stating: "[I]n the absence of any notification, the trial [c]ourt abused its discretion by entering a default judgment where, as here, the attorney of record withdrew from the cause immediately prior to trial." Knight v. Davis, 356 So.2d at 158.
The case-action summary for the action below indicates that, on January 27, 2021, the action was "set" for a trial on March 2, 2021, and that notice was provided to the parties electronically. Also, a February 22, 2021, entry on the case-action summary indicates that a notice about the March 2, 2021, hearing was sent to "all plaintiffs." The husband argues that the record does not indicate that he was provided a "Zoom link," i.e., a link allowing him access to the rial that was to be conducted via the video-conferencing software "Zoom," for the hearing scheduled for March 2, 2021. However, the record demonstrates that the husband was notified of the electronic trial. The husband's attorney represented in the husband's postjudgment motion that the husband "was unaware of the trial scheduled in this matter for March 2, 2021." However, the husband did not submit any evidence to support the allegation that he was unaware of the scheduled trial or that he had not received notice of that trial.
Moreover, as the wife points out, the husband had a duty to keep track of the status of the litigation. Smith v. Cowart, 68 So.3d 802, 812 (Ala. 2011). In this case, the record indicates that the trial had been rescheduled numerous times and that the action had been pending for four and a half years at the time it was finally called for the trial. Two earlier trial settings -- one in March 2020 and another in September 2020 -- had been continued because the husband's original attorney had been arrested and because the notice of the second trial setting had gone to the husband's original attorney, who was no longer practicing law, rather than to the husband. The trial court's September 8, 2020, order provided the husband with 30 days to obtain new counsel. As the wife points out, the husband's new counsel filed a notice of appearance and a postjudgment motion the day following the entry of the judgment; the wife argues that the timing of the filing of the husband's postjudgment motion, i.e., before the judgment could be mailed to him, indicates that the husband had been aware of the trial and had elected not to attend. Given the number of years this action had been pending, the numerous opportunities the trial court afforded to the husband to obtain a new attorney, and the notice of the March 2, 2021, trial that the case-action summary indicates was provided in this case, the husband has not demonstrated that the trial court denied him an opportunity to be heard. Smith v. Cowart, 68 So.3d at 812-13.
We note that, in his postjudgment motion before the trial court, the husband asserted an argument pertaining to Rule 40, Ala. R. Civ. P., which specifically addresses the assignment of cases set for trial. The husband has not advanced a similar argument based on that rule before this court, and, therefore, any such argument is waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982) ("When an appellant fails to argue an issue in its brief, that issue is waived."); Black v. Allen, 587 So.2d 349, 349 (Ala. Civ. App. 1991).
The husband also contends that the trial court erred in allowing his postjudgment motion to be denied by operation of law without making findings regarding the factors set forth in Kirtland v. Fort Morgan Authority Sewer Services, Inc., 524 So.2d 600 (Ala. 1988), to be considered when determining whether a default judgment should be set aside. Initially, we note that it is questionable whether the husband's March 10, 2021, postjudgment motion was one filed pursuant to Rule 55, Ala. R. Civ. P., which governs default judgments, rather than a motion filed pursuant to Rule 59, Ala. R. Civ. P. However, out of an abundance of caution, for the purposes of resolving this issue on appeal, we elect to treat the postjudgment motion as a motion to set aside a default judgment under Rule 55(c), and we address the husband's argument.
"'A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988). In reviewing an appeal from a trial court's order refusing to set aside a default judgment, [an appellate court] must determine whether in refusing to set aside the default judgment the trial court exceeded its discretion. 524 So.2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant's right to defend an action on the merits. 524 So.2d at 604. These interests must be balanced under the two-step process established in Kirtland.
"'We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala. 1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: "1) whether the defendant has a meritorious
Brantley v. Glover, 84 So.3d 77, 80-81 (Ala. Civ. App. 2011) (quoting Zeller v. Bailey, 950 So.2d 1149, 1152-53 (Ala. 2006)).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.'"
The husband argues that the record does not demonstrate that the trial court considered the Kirtland factors before allowing his postjudgment motion to be denied by operation of law. "However, in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the party filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors." Brantley v. Glover, 84 So.3d at 81. See also Tucker v. Nixon, 215 So.3d 1102, 1105 (Ala. Civ. App. 2016); Rudolph v. Philyaw, 909 So.2d 200, 204 (Ala. Civ. App. 2005) ("We find no precedent for holding a trial court in error for allowing a motion to set aside a default judgment to be denied by operation of law where the defaulting party submitted nothing to the trial court regarding the three Kirtland factors."); and Maiden v. Federal Nat'l Mortg. Ass'n, 69 So.3d 860, 867 n.3 (Ala. Civ. App. 2011) (same).
In his postjudgment motion, the husband alleged that he had been "unaware" of the scheduled trial. Thus, the husband, at a minimum, addressed the issue regarding whether the entry of the default judgment was a result of his own culpable conduct. Kirtland, 524 So.2d at 605. However, in that motion, the husband did not argue or allege that he had a meritorious defense against the wife's counterclaims, and he did not address the issue of whether the wife would be unfairly prejudiced if the trial court's March 9, 2021, judgment was set aside. Kirtland, 524 So.2d at 605. Moreover, the husband did not attempt to present any evidence in support of any of the Kirtland factors. Thus, the husband did not trigger the trial court's duty to analyze the Kirtland factors. See Tucker v. Nixon, 215 So.3d at 1106. Accordingly, we will not reverse the trial court's decision to allow the husband's postjudgment motion to be denied by operation of law without its having analyzed the Kirtland factors. Brantley v. Glover, 84 So.3d at 82. See also Carroll v. Williams, 6 So.3d 463, 468 (Ala. 2008); Tucker v. Nixon, 215 So.3d at 1106; and Rudolph v. Philyaw, 909 So.2d at 204.
The husband also argues that the evidence does not support a conclusion that the trial court's division of the parties' marital property was equitable. See Golden v. Golden, 681 So.2d 605, 608 (Ala. Civ. App. 1996) ("A division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court."). However, the husband does not develop that argument in his appellate brief; he does not make any argument concerning the award to him as opposed to the award to the wife. Furthermore, in her testimony, the wife did not present evidence concerning the value of the parties' marital property, other than some small items of personal property that she stated the husband had taken but in which she wanted to be awarded an interest. The wife testified that the parties had divided all other personal property. There was no evidence regarding the valuation of marital assets such as vehicles, land, or the marital home, and no evidence was presented regarding any indebtedness the parties might have. There is, therefore, no evidence from which this court can determine whether the monetary value of the division of that property was equitable. See McCrimon v. McCrimon, 207 So.3d 49, 56 (Ala. Civ. App. 2016). Accordingly, we affirm the judgment as to this issue.
The husband also raises a one-sentence "argument" pertaining to the trial court's child-support award. However, the husband did not raise that argument in his postjudgment motion before the trial court. "This Court cannot reverse a trial court's judgment for an alleged error that is raised for the first time on appeal. The purpose of this rule is to give trial courts an opportunity to correct errors that, if left unaddressed, would require reversal." Adriatic Ins. Co. v. Willingham, 567 So.2d 1282, 1282 (Ala. 1990). This court has explained:
considered by the trial court.'). As our supreme court has stated:"The long-established precedent in Alabama caselaw is that an appellate court cannot reverse a trial court's judgment on an argument that was not first presented to the trial court. See Belcher v. Belcher, 18 So.3d 946, 948 (Ala. Civ. App. 2009) (holding that a party had failed to preserve an argument for appellate review when that party had failed to argue the issue to the trial court 'either at trial or in his postjudgment motion'); Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala. 1988) ('[T]his Court will not reverse the trial court's judgment on a ground raised for the first time on appeal.'); and Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) (citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala. 1991)) ('This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments
"'" '"[I]t is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to a court; ... fairness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to; ... the rule promotes efficient trial proceedings; ... reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not produce the desired result; and ... there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right...." '" '
A.M.F. v. Tuscaloosa Cnty. Dep't of Hum. Res., 75 So.3d 1206, 1210 n.3 (Ala. Civ. App. 2011). Accordingly, we do not address the husband's assertion concerning the trial court's child-support award."Birmingham Hockey Club, Inc. v. National Council On Comp. Ins., Inc., 827 So.2d 73, 80 (Ala. 2002) (quoting Ex parte Elba Gen. Hosp., 828 So.2d 308, 314 (Ala. 2001), quoting in turn Cantu v. State, 660 So.2d 1026, 1031-32 (Ala. 1995) (Maddox, J., concurring in part and dissenting in part), quoting in turn State v. Applegate, 39 Or.App. 17, 21, 591 P.2d 371, 373 (1979))."
Similarly, in his appellate brief, the husband sets forth a two-sentence "argument" that the trial court's award of visitation was erroneous. However, as with the child-support issue discussed above, the husband did not raise the issue of visitation in the trial court, and, therefore, the husband did not afford the trial court the opportunity to address that issue. See Adriatic Ins. Co. v. Willingham, supra. This court may not tell "''" 'a [trial] court it was wrong when it never was presented with the opportunity to be right...."'"' "A.M.F. v. Tuscaloosa Cnty. Dep't of Hum. Res., 75 So.3d at 1210 n.3 (internal citations omitted). See also State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala. 2005) ("This Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal."). We note, however, that an award of visitation is always subject to modification and, therefore, that the husband could seek to modify the visitation award in a separate action. B.W. v. S.S., [Ms. 2200869, Feb. 18, 2022] ___ So. 3d___, ___ (Ala. Civ. App. 2022); Hoag v. Stinson, 268 So.3d 66, 69 (Ala. Civ. App. 2018); Baird v. Hubbart, 98 So.3d 1158, 1163 (Ala. Civ. App. 2012).
The husband's argument on the issue of visitation, in its entirety, reads as follows:
"Secondly, the court awarded the husband visitation with the minor children at 'all reasonable times and places as agreed upon by the parties tak[ing] into account the best interest of the minor children.'
"This court has repeatedly held that an award of visitation requires specificity. M.C. v Jefferson County Department of Human Resources, 198 So.3d 518 (Ala. Civ. App. 2015); K.L.U. v M.C., 809 So.2d 837 (Ala. Civ. App. 2001); D.B. v Madison County Department of Human Resources, 937 So.2d 535 (Ala. Civ. App. 2006); C.W.S. v. C.M.P., 99 So.3d 864, 869 (Ala. Civ. App. 2012)."As is explained in the body of this opinion, the husband failed to preserve this argument by failing to raise it in the trial court. The dissent's interpretation of the husband's argument as not only having been preserved, but also as addressing the trial court's discretion to determine the best interests of the children as it relates to a visitation award, is a generous interpretation of the husband's postjudgment motion and his two-sentence "argument" on appeal.
AFFIRMED.
Moore, Hanson, and Fridy, JJ., concur.
Edwards, J., concurs in part and dissents in part, with opinion.
EDWARDS, Judge, concurring in part and dissenting in part.
I concur in the main opinion insofar as it rejects the following arguments asserted by Demetric James Dubose ("the husband"): (1) that the Sumter Circuit Court ("the trial court") erred by failing to set aside the March 9, 2021, default judgment ("the default divorce judgment") divorcing him from Jana Ward Dubose ("the wife") based on the trial court's alleged failure to notify the husband of the March 2, 2021, trial, (2) that the trial court erred by failing to address the factors outlined in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988), in the default divorce judgment, (3) that the trial court erred by allegedly dividing the parties' property inequitably in the default divorce judgment, and (4) that the trial court erred in calculating the husband's child-support obligation. However, I respectfully dissent from that portion of the main opinion that affirms that part of the default divorce judgment awarding the husband visitation with the parties' children at the sole discretion of the wife. Our caselaw makes clear that "a visitation order awarding '"reasonable visitation with the minor children at the discretion of the [custodial parent]"' generally should not be allowed because it authorizes the custodial parent to deny visitation altogether, which would not be in the best interests of the children." Pratt v. Pratt, 56 So.3d 638, 643 (Ala. Civ. App. 2010) (quoting Bryant v. Bryant, 739 So.2d 53, 56 (Ala. Civ. App. 1999)). The record is devoid of evidence indicating that the best interests of the children would be served by an award of visitation at the sole discretion of the wife. Accordingly, I would reverse the default divorce judgment insofar as it awarded the husband visitation with the children solely at the wife's discretion.