This case involved the modification of a divorce in St. Clair County, Alabama. This case is noteworthy, because if you do not have a lawyer and fail to keep your address current with the court, your case may be dismissed. It is just as important that if you have counsel, to keep you lawyer informed of an address change. This is essentially what happened in this case, but the court failed to consider the wife’s claims before she had the order reversed on appeal.
The former wife filed a petition for modification and contempt in July2012.
Her attorney was permitted to withdraw from her case on February 27, 2014.
The clerk did not have the wife’s address on file.
On April 3, 2014, the trial court issued an order setting the case for June 11, 2014. The former wife never received that notice. The trial court took testimony and entered a judgment denying the petition filed by the former wife, dismissing the case with prejudice, and ordering the former wife to pay a $5,000 attorney fee. The former wife filed a motion to set aside the judgment on August 6, 2014. The trial court noted that the motion was filed more than 30 days after the entry of the final judgment and it denied the motion.
The former wife appealed. Reversed an appeal. A Rule 60(b)(4) may be filed at any time. Therefore, the trial court erred by denying the former wife’s motion based on untimeliness. “However, unless a court clerk voluntarily assumes the obligations to notify a litigant of a scheduled trial date, the clerk’s failure to so notify a litigant does not violate the due-process rights of the litigant, who is under a duty to inform the clerk of his or her service address and to keep apprised of the status of his or her own case.” Because no such showing was made in this case, the former wife’s due process rights were not violated. (2) The former wife also argued that her failure to advise the clerk of her address was a result of excusable neglect. Marks v. Marks.
A Rule 60(b)(1) motion for excusable neglect must be filed within four months of the date of the entry of the judgment. In this case, the former wife’s motion was filed within two months of the final judgment. If a motion is filed based on excusable neglect, the trial court must consider the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., Here, the court summarily denied the former wife’s motion and did not consider those factors. Accordingly, the judgment of the trial court is due to be reversed.
Most courts will bend over backwards to protect parties due process rights to be heard in a case. In fact most courts, generally follow the precedent of the Kirtland case to protect parties. This case looks as if the court just failed to consider the justifying circumstances or did not think the former wide would appeal. Justice prevailed in this case. The former wife will have her opportunity to be heard on the facts and issues in the case.