Jones v. Jones

Court of Civil Appeals of Alabama

Jones v. Jones

717 So. 2d 434, 1998 Ala. Civ. App. LEXIS 454, 1998 WL 321977

CourtCourt of Civil Appeals of Alabama

DecidedJune 19, 1998

Docket2970343

StatusPublished

Cited by1 cases

This text of 717 So. 2d 434 (Jones v. Jones) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jones v. Jones, 717 So. 2d 434, 1998 Ala. Civ. App. LEXIS 454, 1998 WL 321977 (Ala. Ct. App. 1998).

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Opinion

CRAWLEY, Judge.

In January 1997, after 30 years of marriage, Shirley Jean Jones sued James Allen Jones for a divorce, alleging incompatibility and requesting a division of property. The husband answered and counterclaimed for a divorce, alleging incompatibility and requesting a division of property and asking for attorney fees. The wife’s attorney filed a motion to withdraw, which the trial court granted. The wife did not appear at trial, and the trial court entered a default divorce judgment against her. The wife, represented by new counsel, filed a motion to set aside the default judgment; the trial court denied the motion. The wife appeals.

The wife filed her motion to set aside the default judgment pursuant to Rule 55(c), Ala. R.Civ.P. The trial court denied the Rule 55(c) motion without any indication that it had considered the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). Therefore, we reverse the judgment and remand the cause for the trial court to consider the Kirtland factors for determining whether to set aside the default judgment. See CHO Real Estate Holding, Inc. v. Wyatt, 680 So.2d 372 (Ala.Civ.App.1996); and White v. Westmoreland, 680 So.2d 348 (Ala.Civ.App.1996).

The husband, pursuant to Rule 38, Ala.R.App.P., has filed a motion for damages, based on his claim that the wife has filed a frivolous appeal. That motion is denied. The husband’s motion for an attorney fee on appeal is also denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, MONROE, and THOMPSON, JJ., concur. ROBERTSON, P.J., dissents.

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CRAWLEY, Judge.

In January 1997, after 30 years of marriage, Shirley Jean Jones sued James Allen Jones for a divorce, alleging incompatibility and requesting a division of property. The husband answered and counterclaimed for a divorce, alleging incompatibility and requesting a division of property and asking for attorney fees. The wife’s attorney filed a motion to withdraw, which the trial court granted. The wife did not appear at trial, and the trial court entered a default divorce judgment against her. The wife, represented by new counsel, filed a motion to set aside the default judgment; the trial court denied the motion. The wife appeals.

The wife filed her motion to set aside the default judgment pursuant to Rule 55(c), Ala. R.Civ.P. The trial court denied the Rule 55(c) motion without any indication that it had considered the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). Therefore, we reverse the judgment and remand the cause for the trial court to consider the Kirtland factors for determining whether to set aside the default judgment. See CHO Real Estate Holding, Inc. v. Wyatt, 680 So.2d 372 (Ala.Civ.App.1996); and White v. Westmoreland, 680 So.2d 348 (Ala.Civ.App.1996).

The husband, pursuant to Rule 38, Ala.R.App.P., has filed a motion for damages, based on his claim that the wife has filed a frivolous appeal. That motion is denied. The husband’s motion for an attorney fee on appeal is also denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, MONROE, and THOMPSON, JJ., concur. ROBERTSON, P.J., dissents.

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717 So. 2d 434, 1998 Ala. Civ. App. LEXIS 454, 1998 WL 321977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-alacivapp-1998.

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