Justice v. Wallace, [Ms. 2170332, Sept. 14, 2018] __ So. 3d __ (Ala. Civ. App. 2018). This unanimous decision by Judge Donaldson reverses a default judgment entered by the Winston Circuit Court in a custody modification proceeding. The mother filed a responsive pleading to the motion to modify nine days after expiration of the 30-day deadline for serving an answer or responsive pleading set out in Rule 12(a), Ala. R. Civ. P. Ms. *2. That same day, despite the fact that no default had been entered, the mother filed a “motion to set aside default.” Ibid.
At a hearing on August 14, 2017, the circuit court entered a default judgment modifying custody of the parties’ child. Ms. *3.
The court reversed, applying settled law, that “‘a party must first obtain an entry of default by the clerk of the trial court before he or she can obtain a default judgment from the trial court.’” Ms. *6, quoting Griffin v. Blackwell, 57 So. 3d 161, 163 (Ala. Civ. App. 2010). The court also noted that the mother had not been determined to be in default at the time she filed her responsive pleading and, therefore, the default judgment entered on August 14, 2017 was improper. Ms. *6, citing T.A. Fin., Inc. v. Discover Bank, 967 So. 2d 90, 91 (Ala. 2007), for the proposition that an answer filed before a hearing on a default judgment motion cures the default.