Alabama Appellate Watch : Blog Published by Lightfoot Franklin & White : Alabama Litigation Lawyer & Attorney : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

A residential association sued a defendant for money owed. The defendant argued that she had not been served with process. The record showed that, indeed, process had been delivered to, and signed in the name of, someone other than the defendant. When the defendant did not answer the complaint, the residential association obtained a default judgment against her, and attempted to execute on that judgment.

The defendant filed a motion under Rule 60(b)(4) to vacate the default judgment. Because she had not been served with process, she argued, the trial court never acquired jurisdiction over her and the default judgment was void. The circuit court denied her motion and the defendant appealed.

The Court of Civil Appeals reversed. The court began by explaining that rulings under Rule 60(b)(4) are reviewed under a de novo standard. Moreover:

The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside.

The default judgment in this case was void, as the defendant argued, because she had not been served with process. When service "is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally." The residential association had not shown this. It had not proved that service had been made in any of the ways prescribed by Rule 4 of the Alabama Rules of Civil Procedure. Consequently, the trial court had not acquired personal jurisdiction over the defendant. The default judgment it entered against her was void, and the lower court erred by failing to vacate that order under Rule 60(b)(4).

The Court of Civil Appeals reversed the lower court's order, and directed that the default judgment be vacated.

The husband moved under Rule 59(e) to alter, amend or vacate a divorce judgment. Ninety days later, under Rule 59.1, this motion was denied by operation of law . Ten days after this denial, the trial court entered an order purporting to rule on the husband’s 59(e) motion. The wife moved to “strike” this order. The trial court refused, and the wife petitioned the Court of Civil Appeals for a writ of mandamus.

The appellate court first decided to treat the mandamus petition as an appeal. The wife’s motion, the court reasoned, was essentially one under Rule 60(b)(4), because it claimed that the trial court lacked jurisdiction to enter the challenged order. The denial of a 60(b)(4) motion is reviewable by appeal. The appellate court invoked its power to treat the mandamus petition as an appeal. Quoting the Supreme Court of Alabama, the Court of Civil Appeals explained: “[T]here is no bright-line test for determining when this Court will treat a particular filing as a mandamus petition and when it will treat it as a notice of appeal.” The court “elected” to treat the wife’s filing as an appeal.

Then, on the merits, the appellate court held that the trial court had indeed lacked jurisdiction to enter its late order. Because the trial court did not rule upon the husband’s post-judgment motion within 90 days of its filing, the motion was denied by operation of law under Rule 59.1, and the trial court “lost jurisdiction” to rule upon the motion.

The husband attempted to save the late order by arguing that it merely “corrected” the divorce judgment under Rule 60(a). (Such corrections may be made “at any time,” so that the trial court’s order would not be void because late.) The Court of Civil Appeals rejected this contention. Rule 60(a) orders are meant to correct “errors of a ministerial nature in order to reflect what was actually intended at the time of the entry of the order.” Rule 60(a) orders “cannot be used to enlarge or modify a judgment” or to make it “say something other than what was originally said.” The trial court’s late order here attempted just that. It sought to modify substantive terms of the divorce judgment — although these terms been addressed and decided in that “final” judgment. (The terms in question related to the division of equity in the parties’ marital home.)

Consequently, the trial court’s late order was not entered pursuant to Rule 60(a).  It was an attempt to change that judgment in response to the husband’s post-judgment motion to alter, amend, or vacate. Because the trial court had already “lost jurisdiction” to rule on that motion, the challenged order was void. The wife should have been granted relief from that order under Rule 60(b)(4). The case was reversed and remanded.