Opinion
No. 2040238.
Decided June 30, 2005.
Appeal from Houston Circuit Court (DR-04-128), Jerry M. White, Judge.
Jack W. Smith, Dothan, Appellant.
Submitted on appellant's brief only.
On February 12, 2004, Richard Elgin Sumlin ("the husband") sued Barbara Ann Roebuck Sumlin ("the wife") for a divorce. On April 9, 2004, the wife, acting pro se, answered. On the motion of the husband, the matter was set for trial on May 19, 2004. By an agreement of the parties, the trial of the case was continued to June 10, 2004. On June 9, 2004, the trial court continued the case for a second time pursuant to an agreement of the parties. On June 16, 2004, the wife, no longer acting pro se, filed an amended answer to the complaint and a counterclaim to the husband's petition for divorce. On August 6, 2004, the wife moved 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 that was denied by the trial court. On October 12, 2004, the trial court called the case for trial; the record indicates that neither the wife nor her counsel were present at the trial. Following the presentation of ore tenus evidence, the trial court entered a default judgment against the wife on October 12, 2004, and on October 18, 2004, it entered a divorce judgment based upon the wife's default.
On October 29, 2004, the wife moved to set aside the default judgment. As grounds in support of her motion to set aside the default judgment, counsel for the wife alleged:
"That this 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, September 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 wife did not file an affidavit or any other evidence in support of her motion to set aside the default judgment.
In an entry on the case action summary sheet, the trial court denied the wife's motion to set aside the default judgment finding 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 filed a postjudgment motion that was subsequently denied. The wife timely appealed.
On appeal, the wife contends that the trial court abused its discretion by denying her motion to set aside the default judgment. Specifically, the wife argues that she submitted "sufficient reasons" in her motion to meet the criteria to set aside the default judgment. We disagree.
Our supreme court "now phrase[s] the question formerly framed in terms of whether a trial court `abused' its discretion in terms of whether the trial court `exceeded' its discretion" in ruling on a motion to set aside a default judgment. Ex parte Family Dollar Stores of Alabama, Inc., [Ms. 1031699, Jan. 7, 2005] ___ So.2d ___, ___ (Ala. 2005) (citing Vesta Fire Ins. Corp. v. Milam Co. Constr., Inc., [Ms. 1021196, Aug. 27, 2004] ___ So.2d ___ (Ala. 2004); Johnson v. Willis, 893 So.2d 1138 (Ala. 2004); and Zaden v. Elkus, 881 So.2d 993 (Ala. 2003)).
In Sampson v. Cansler, 726 So.2d 632 (Ala. 1998), our supreme court observed:
"In Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988), this Court held that the trial court has broad discretion in determining whether to grant or to deny a defendant's motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments — judicial economy and the defendant's right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.
"Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider `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.' Kirtland, 524 So.2d at 605."
In support of her position on appeal, the wife primarily relies on, and quotes extensively from, this court's holding in Smith v. Tyson Foods, Inc., 884 So.2d 861 (Ala.Civ.App. 2003). In Smith, this court reversed the trial court's denial of a motion to set aside a default judgment where the judgment of the trial court failed to indicate that the trial court considered either part of the two-step process set forth in Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988). Likewise, in the recent decision of Campbell v. Campbell, [Ms. 2030437, April 22, 2005] ___ So.2d ___ (Ala.Civ.App. 2005), this court, relying on Smith, held that the trial court committed reversible error when it denied a motion to set aside a default judgment pursuant to Rule 60(b), Ala. R. Civ. P., because it failed to consider whether the defendant had established excusable neglect and failed to apply the Kirtland factors.
In both Smith and Campbell, this court held that it was reversible error for a trial court to deny a motion to set aside a default judgment without applying the Kirtland factors. However, in Rudolph v. Philyaw, [Ms. 2040098, March 4, 2005] ___ So.2d ___ (Ala.Civ.App. 2005), we recognized an exception to this general rule when the defaulting party failed to meet its initial burden of demonstrating the Kirtland factors. Rudolph, ___ So.2d at ___ (citing Ex parte Family Dollar Stores of Alabama, Inc., [Ms. 1031699, Jan. 7, 2005] ___ So.2d ___, ___ (Ala. 2005), for the general proposition that a defaulting party has the initial burden of demonstrating the existence of the Kirtland factors).
In Rudolph v. Philyaw, the trial court entered a default judgment against the defendants, who then moved to set that judgment aside. In support of their motion to set the judgment aside, the defendants alleged that they had not retained an attorney until after the default judgment had been entered; that they were prepared to present evidence on the day of trial; and that the matter should be tried on the merits in the interest of justice. The defendants in Rudolph did not submit affidavits or any other evidence in support of their motion to set aside the default judgment.
On appeal, the defendants in Rudolph argued that the trial court's judgment was due to be set aside because nothing in the record indicated that the trial court had considered the Kirtland factors in determining whether to set aside the default judgment. This court declined to reverse the trial court's judgment. Citing the defendants' failure to meet their initial burden under all three Kirtland factors, this court noted that "[t]he defendants' motion to set aside the default judgment made no allegations that the defendants had a meritorious defense or that Philyaw would not be unfairly prejudiced if the default judgment were set aside, and the defendants failed to assert that the entry of the default judgment was not the result of their own culpable conduct." Rudolph, ___ So.2d at ___.
Like the defendants in Rudolph, the wife in this case failed to meet her initial burden of demonstrating the existence of the Kirtland factors in her motion to set aside the default judgment. Also, as noted earlier, the wife did not file an affidavit or any other evidence in support of her motion to set aside the default judgment. The wife's motion to set aside the default judgment, quoted in its entirety earlier in this opinion, fails to set forth any of the three factors the trial court is to consider under the Kirtland analysis.
In his dissent, Judge Murdock asserts that the wife adequately demonstrated the existence of the Kirtland factors, regardless of her failure to set forth those factors in her motion to set aside the default judgment. Even assuming that the wife demonstrated the existence of a meritorious defense in her answer, her failure to demonstrate the existence of the remaining Kirtland factors supports the trial court's denial of relief from the default judgment. With regard to the third Kirtland factor requiring consideration of culpable conduct on the part of the defaulting party, our supreme court has stated:
"Conduct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence by itself is insufficient. Willful and bad faith conduct is conduct characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority. . . . Such conduct justifies a finding of culpability and thus militates against an exercise of discretion in favor of the defaulting party. The strong policy of resolving legal issues on the merits must yield when a defaulting party has committed intentional acts that are contrary to procedural rules."
Kirtland, 524 So.2d at 607-08 (citations and footnote omitted).
The record in this case indicates that the final hearing in this matter was continued on two occasions and on the last occasion, when the trial court denied any further continuances, counsel for the wife willfully disregarded the final hearing date set by the trial court and failed to appear at the scheduled time. The motion to set aside the default judgment reveals that counsel for the wife knowingly disregarded the trial court's order and advised the wife not to appear in court. As noted by the supreme court in Kirtland, "[t]he strong policy of resolving legal issues on the merits must yield when a defaulting party has committed intentional acts that are contrary to procedural rules." 524 So.2d at 608.
In light of the foregoing, the judgment of the trial court denying the wife's motion to set aside the default judgment is due to be affirmed.
AFFIRMED.
Pittman, J., concurs.
Bryan, J., concurs in the result, with opinion.
Crawley, P.J., dissents, with opinion, which Murdock, J., joins.
Murdock, J., dissents, with opinion, which Crawley, P.J., joins.
Phillips v. Randolph, 828 So.2d 269, 278 (Ala. 2002), held that "when a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the [nonmovant] will not be unfairly prejudiced if the default judgment is set aside." See also Royal Ins. Co. of America v. Crowne Invs., Inc., [Ms. 1030310, December 17, 2004] ___ So.2d ___, ___ (Ala. 2004) (stating that the movant has the initial burden of demonstrating that the nonmovant will not be substantially prejudiced if the default judgement is set aside). Because the wife failed to make a prima facie showing that the husband would not be unfairly prejudiced if the default judgment were set aside, the trial court's denial of the motion to set aside the default judgment should be affirmed.
I join Judge Murdock's dissenting opinion, but I also write separately to point out that application of the process set out in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988) — which is essentially a balancing test that calls for weighing the competing interests in judicial economy against a litigant's right to defend on the merits — strongly suggests that in this case the balance should tip in favor of granting the wife's motion to set aside the default judgment.
Because this case involves child-custody issues, and because the wife's answer alleged matters that implicate a court's "`"`duty to guard and protect the interest of its infant wards with scrupulous care,'"'" see Davis v. Davis, 743 So.2d 486, 487 (Ala.Civ.App. 1999) (quoting Fesmire v. Fesmire, 738 So.2d 1284, 1287 (Ala.Civ.App. 1999), quoting in turn other cases), I believe that the trial court exceeded its discretion in denying the wife's motion.
Murdock, J., concurs.
"`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. . . . See C. Wright, A. Miller M. Kane, Federal Practice and Procedure, Civil, § 2693 (2d ed. 1983).'"
Ex parte Family Dollar Stores of Alabama, Inc., [Ms. 1031699, January 7, 2005] ___ So.2d ___, ___ (Ala. 2005) (quoting Kirtland 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 the second step in the Kirtland analysis.
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 the Supreme Court meant that each of those three factors must be completely 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. An approach in which all three factors are considered and "balanced," or weighed, against each other is consistent with federal jurisprudence. See generally C. Wright et al., Federal Practice Procedure, Civil, § 2693 (2d ed. 1983).
In addition, this 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 allow a case to be decided on its merits, despite the fact that one or more of the three 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.
Moreover, in Aldridge v. Hamilton, 708 So.2d 194 (Ala.Civ.App. 1997), this court held that the trial court 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 also Fries [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 sufficient to justify a refusal to set aside a default judgment. Rooney, 672 So.2d at 6; Fries, 559 So.2d at 562."
708 So.2d at 196. See also C. Wright et al., Federal Practice Procedure, Civil, § 2693 (2d ed. 1983) (discussing federal cases demonstrating an appropriate preference for the awarding of costs to compensate for any prejudice associated with setting aside a default judgment).
I turn now to a consideration of the three factors that compose the second part of the Kirtland test. As noted, the first of those factors is whether the defendant has a meritorious defense.
Unlike Rudolph v. Philyaw, [Ms. 2040098, March 4, 2005] ___ So.2d ___ (Ala.Civ.App. 2005), the present case is not one in which the default occurred because of the failure of a defendant to answer the complaint. Here, the wife answered the complaint, denying in detail various essential elements alleged by the husband and, moreover, in doing so, specifically alleged that the welfare of the parties' 13-year-old daughter would not be served by being in the custody of the husband but instead that the daughter's custody would be served by being placed in the custody and control of the wife. Moreover, the wife also included with her answer a counterclaim in which she specifically alleged that she did not abandon the child as alleged in the complaint but that, instead, the husband had "brutally forced the [wife] from the parties' home by assaulting her, and causing her such grievous mental suffering that she has now and has been under medical care, and she is unable to work, and she is need of support." The wife further alleged that it is the husband and not the wife who committed adultery. Further still, the counterclaim alleges that the minor daughter has made known her request to live with the wife through correspondence, a copy of which is attached to the counterclaim.
"[A] defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action. . . ." Kirtland, 524 So.2d at 606 (emphasis added). I therefore conclude that the record before us fully satisfies the first Kirtland factor in a manner that favors the adjudication of the issue of divorce and, particularly, the custody of the parties' child, on the merits.
Turning to the third Kirtland factor, I note that the wife's motion to set aside the default judgment includes a detailed explanation by her attorney as to how the trial court misunderstood him to be present in the Houston County courthouse at the time of the hearing in question. He specifically explains how he attempted to contact the trial court several days before the scheduled hearing but was unable to do so and that he was required to attend proceedings in four separate criminal cases in nearby Geneva County on the morning in question. He also explains in detail how he notified the husband's counsel of his conflict and requested agreement for a continuance but was told that the husband refused to agree to a continuance.
The case action summary sheet reveals that there were two previous continuances and that these were ordered by the court based upon the agreement of the parties.
"Conduct committed wilfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence by itself is insufficient. Willful and bad faith conduct is conduct characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness. . . .
"However, a defaulting party's reasonable explanation for inaction and non compliance may preclude a finding of culpability."
Kirtland, 524 So.2d at 607-08 (citations omitted). I therefore must conclude that an analysis of the third Kirtland factor favors the wife's request for relief from the default judgment and the litigation of this divorce and custody action on its merits.
Finally, I turn to the second Kirtland factor, whether the plaintiff will be unfairly prejudiced by setting aside the default judgment. I first note that the prejudice must be substantial. Ex parte Gilliam, 720 So.2d 902 (Ala. 1998). Mere delay or increased costs are not sufficient to justify refusal to set aside a default judgment. Gilliam, 720 So.2d at 904. As the Kirtland Court, itself, said:
"Federal cases construing [the second] requirement suggest that the prejudice must be substantial to justify a denial of a motion to set aside a default judgment. [Citations omitted.] The rationale for requiring substantial prejudice is that the federal courts are vested with discretionary power to impose costs as a means of alleviating the adverse affects of delay. The underlying presupposition is that minimal prejudice can be effectively offset `by requiring the defaulting party to provide a bond to secure costs, to pay court costs, or to cover expenses of the appeal.' C. Wright, [A. Miller, M. Kane, Federal Practice Procedure, Civil,] § 2200 [(2d ed. 1983)]; [other citations omitted].
"Awarding costs as a means of mitigating the prejudice suffered by the plaintiff upon the setting aside of a default judgment is a practical and fair rule, one that has received the imprimatur of this Court. In Mosaic Templars of America v. Hall, 220 Ala. 305, 124 So. 879 (1929), . . . we held, inter alia, that the `court may impose reasonable terms, such as the payment of costs, as a penalty for' an attorney's negligence in failing to appear. 220 Ala. at 306, 124 So. at 880. . . . Thus, we hold that the prejudice warranting denial of a Rule 55(c) motion must be substantial. If the harm suffered by the nondefaulting party, as by a delay in vindicating its rights, could be mitigated by the imposition of reasonable terms and conditions, the prejudice is not substantial. Moreover, the task of determining whether the defendant has caused substantial prejudice is a burden to be borne by the trial judge, after review of the facts, and not by the plaintiff."
Kirtland, 524 So.2d at 607.
I note secondly that our Supreme Court in Kirtland did not state which party had the burden of showing each of the Kirtland factors. Obviously, as a general rule, a movant has the burden of demonstrating those elements necessary to justify the trial court in granting the relief requested. This would be particularly appropriate as to the first and third Kirtland factors — the existence of a meritorious defense and the absence of culpability on the part of the movant in allowing the default judgment to occur — in that those factors speak to matters within the knowledge of the movant. The same is not true of the second factor, however. To put the burden of demonstrating the lack of prejudice to the nonmovant on the movant is, in the first instance, to ask the movant to prove a negative. Moreover, whether or not the nonmovant has been prejudiced in some manner, such as by the death or other unavailability of a witness, is information more commonly within the knowledge of the nonmovant.
Nonetheless, in Rudolph v. Philyaw, ___ So.2d ___, this court cited our Supreme Court's decision in Phillips v. Randolph, 828 So.2d 269 (Ala. 2002), for the proposition that the party that files a motion to set aside a default judgment has the initial burden of making a prima facie showing that the nonmovant will not be unfairly prejudiced if the default judgment is set aside. Rudolph v. Philyaw, ___ So.2d at ___ ("`If the movant makes a prima facie showing that the [nonmovant] will not be unfairly prejudiced, the burden then shifts to the [nonmovant] to present facts showing that [the nonmovant] will be unfairly prejudiced if the default judgment is set aside.'" (Quoting Phillips v. Randolph, 828 So.2d at 278)). In Phillips v. Randolph, however, all three of the Kirtland factors weighed in favor of denying the defendant's motion for relief from the default judgment. As noted, a failure to demonstrate that one or both of the second and third Kirtland factors supports the granting of relief from a default judgment is not necessarily fatal to a motion for such relief. Further, in the case now before us, the motion for relief from the default judgment was filed within a matter of days after the default judgment was entered, and there is nothing in the record to suggest that the husband will, in fact, be substantially prejudiced by having to litigate the case on its merits.
As noted earlier, our Supreme Court has referred to the Kirtland analysis as a process in which the trial court is called upon to "balance the equities." 524 So.2d at 605. In so doing, it has emphasized the paramount importance of affording litigants an opportunity to attain an adjudication on the merits:
"Article I, §§ 6 and 13, Alabama Constitution of 1901, by guaranteeing the due process rights of citizens, and Article I, § 10, by holding inviolate a person's right to defend himself in a civil action to which he is a party, elucidates this state's commitment to protect an individual's right to attain an adjudication on the merits and to afford litigants an opportunity to defend. We, therefore, emphatically hold that a trial court, in determining whether to grant or to deny a motion to set aside a default judgment, should exercise its broad discretionary powers with liberality and should balance the equities of the case with a strong bias toward allowing the defendant to have his day in court."
Kirtland, 524 So.2d at 605 (emphasis added).
In Ex parte Gilliam, 727 So.2d at 906, the Supreme Court found fault with the nonmovant for not presenting concrete facts indicating that any witnesses had become unavailable or that any evidence had been lost. Also, in Sampson v. Cansler, 726 So.2d 632, 634-35 (Ala. 1998), the Supreme Court indicated its favorable disposition toward a defendant's motion for relief from a default judgment on the ground that "Ms. Cansler [the nonmovant] has not argued prejudice except in the form of delay and increased costs." 726 So.2d at 635. Further, as recently as December of last year, our Supreme Court stated that "common sense dictates that a plaintiff [the nonmovant] is usually in a far better position to know what prejudice might befall him from the delay, and more importantly how substantial that prejudice would be," even as it indicated that the Court's holding in Phillips v. Randolph, 828 So.2d 269, required an initial showing by the movant. Royal Ins. Co. of America v. Crowne Invs., Inc., [Ms. 1030310, December 17, 2004] ___ So.2d ___, ___ (Ala. 2004). While this court's holding in Philyaw was to the same effect as the Supreme Court's holding in Phillips v. Randolph, both Phillips and Philyaw were cases in which the analysis of all three Kirtland factors weighed against granting relief from the default judgment. I am aware of no case in which this court or our Supreme Court has held that a "consideration" of the Kirtland factors and the necessary "balanc[ing] of the equities" made it appropriate to deny relief from a default judgment when both the meritorious defense factor and the culpable-conduct factor weighed in favor of such relief and, as in this case, neither the record nor the nonmovant suggests that there would be substantial prejudice if relief were granted. Nor do I believe it appropriate to interpret Phillips to that end, particularly in a case such as this, where so much (the proper custody of a 13-year-old child) is at stake and the record reflects that the defaulting party moved so promptly for relief.
Of particular significance, it may be noted that the analysis of the first Kirtland factor — the meritorious-defense factor — weighed against the granting of relief in both Phillips and Philyaw. Kirtland emphasized the first factor as a "threshold prerequisite" to the granting of relief. 524 So.2d at 605.
At the very least, in such a case, the ends of justice appear to require that the trial court grant a hearing to the movant if one has been requested, as it was in this case. See Rule 59(g), Ala. R. Civ. P. (requiring that parties have an opportunity to be heard on postjudgment motions). The "no probable merit" restriction on the operation of Rule 59(g), see, e.g., Hollander v. Nance, should not be deemed satisfied under such circumstances.
Crawley, P.J., concurs.