Divorce Judgment Dismissed

As in many cases one party may file a complaint and the defendant does not file an answer within 30 days. If the defendant does not file an answer in time, the plaintiff will file for a default judgment for the lack of the defendant not answering the Complaint.   The court generally does not like Default Judgments in divorce cases because the court believes that both sides deserve due process and a chance to be heard in court.  There are more default judgments thrown out in divorce court than in any other type of case. 

In the case of Quintana v. Quiroz from Jefferson County, Alabama, the mother filed a complaint seeking to receive custody of her three children.  The father filed an answer to the complaint and a counterclaim in which he alleged that the parties have been married since August of 2007.  The father was seeking custody of the children as well as child support. The trial court entered a pendente light order in which it awarded the mother and the father alternating weeks of physical custody.

The trial court said the matter for a final hearing on November 26, 2019. The father and his attorney appeared for the trial but the mother or her lawyer did not appear. The trial court entered a divorce judgment in which it awarded custody of all three children to the father, awarded the mother visitation at the discretion of the father and the and the father's attorney was awarded a $4,500 attorney fee.  The mother filed a motion to set aside the default judgment. 

The mother and her attorney argued that the dates were confused with a hearing set for a PFA hearing.   The court denied the mother’s post-trial motion.  The mother appealed the decision. 

The appellate court ruled ex meru motu, which means on its own accord, that the default judgment was not a final judgment and therefore the divorce was set aside.  As a matter the appellate court ruled that it was a long standing precedent that default judgment’s entered in divorce actions, particularly those involving child custody, should be set aside.   

The appellate court ruled that the father had requested child support and the trial court neglected to order the mother to pay child support.  The court ruled “where a party has requested child support and the trail court’s judgment does not contain a conclusive child support obligation, the trail court has not completely addressed the matters between the parties.  Therefore the appeal was dismissed on the merits. 

This case is a good example of a trial court trying to dispose of a case without giving both sides due process.  The appellate court took the correct action to dismiss the divorce judgment.

If you are seeking a divorce lawyer, contact Ingram Law LLC at 205-335-2640.
Categories: