Michael Riddle v. Phyllis Riddle (Appeal from Elmore Circuit Court: DR-24-900109).

Rel: March 14, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2024-0856
_________________________

Michael Riddle

v.

Phyllis Riddle

Appeal from Elmore Circuit Court
(DR-24-900109)

MOORE, Presiding Judge.

Michael Riddle ("the husband") appeals from a judgment entered

by the Elmore Circuit Court ("the trial court") denying his motion to set

aside a default judgment divorcing him from Phyllis Riddle ("the wife").
CL-2024-0856

We reverse the trial court's judgment and remand the case to the trial

court with instructions.

Procedural History

On May 29, 2024, the wife filed in the trial court a complaint

seeking a divorce from the husband; she asserted that the parties had

married on April 21, 2000, that there were no children born of the

marriage, that there was a complete incompatibility of temperament

such that the parties could no longer live together, and that there had

been an irretrievable breakdown of the marriage. The wife sought,

among other things, an equitable division of the parties' property and

debts. On June 12, 2024, the husband was served with the summons and

the complaint. On August 8, 2024, the wife filed an "application to the

court for [the] entry of [a] default judgment" based on the husband's

failure to plead, answer, or otherwise defend against the wife's complaint;

the wife's counsel filed an affidavit in support of that application. On

that same date, the wife filed an "affidavit on default judgment," which

provides, in pertinent part:

"My name is Phyllis Riddle. I am over the age of
nineteen (19) years and have been a bona fide resident citizen
of the State of Alabama.

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"I am requesting [that] the [trial] court enter a final
decree of divorce and divide the assets and debts of my
marriage as follows to which I am entitled and upon the
following terms. I further request the following relief:

"REAL PROPERTY

"1. The wife is awarded the residence along with the
contents of the premises located [on] Commodore Street,
Montgomery, Alabama .... A clerk's deed shall issue if the
husband refuses to execute a [quitclaim] deed thereto.

"2. The wife is awarded the lot located [on] East Fleming
Road, Montgomery, Alabama .... The husband will execute a
[quitclaim] deed within thirty (30) days of the execution of this
final decree. A clerk's deed shall issue if the husband refuses
to execute said [quitclaim] deed.

"3. Any real property not specifically awarded to the
husband herein is awarded to the wife who shall hold the
husband harmless as to any indebtedness thereon.

"PERSONAL PROPERTY

"4. The wife is awarded the following vehicles: one (1)
2004 Explorer Sportstrack, one (1) 2014 Camaro, and one (1)
Chrysler 300 and shall hold the husband harmless as to any
indebtedness thereon.

"5. The wife is awarded the following personal property
currently in her possession:

"a. John Deere 717A Zero turn lawn mower
...;

"b. 8' Utility Trailer ....

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"6. The wife is awarded all other vehicles not specifically
awarded to the husband herein and shall hold the husband
harmless as to any indebtedness thereon.

"7. All other personal property having been already
divided, the parties are awarded all said property in their
possession, not specifically set out herein.

"DEBT DIVISION

"8. Other than the debts specifically set out herein, each
of the parties shall be responsible for and hold the other party
harmless as to any indebtedness held solely in their respective
name.

"9. Except and unless otherwise specifically set out
herein, neither party shall at any time hereinafter obligate or
charge to the other party's credit in any manner whatsoever,
or contract any debts, charges, or liabilities of any nature for
which the other party shall or may become liable to answer.

"BANK ACCOUNTS

"10. Each party is awarded ownership of any bank
accounts held solely in their own name and any assets
therein.

"11. Each party shall remove their name as signator on
any bank account held in the name of the other party.

"12. Any joint bank accounts shall be closed.

"BUSINESS ENTITIES

"13. The wife is awarded the parties' business, Recovery
Services, LLC, and all equipment and wreckers associated
with said business. The wife is awarded all assets of said

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LLC. The bank account for the business with the wife's name
listed along with all monies therein is awarded to the wife.

"RETIREMENT

"14. Each party is awarded any retirement asset or
account listed solely in their own name unless stated
otherwise herein.

"15. Both parties waive their rights to any retirement
account(s) or retirement asset(s) held by the other party not
specifically listed herein.

"ALIMONY

"16. Neither party shall be entitled to alimony. No issue
of alimony is reserved.

"TAXES

"17. The parties will file separately for the 2024 [sic] and
thereafter. The husband will be responsible for any past or
present tax debt owed by himself or any business he has
operated in the past. Said business to include but not limited
to Recovery Services, LLC. The husband shall indemnify the
wife against any and all tax liability incurred by himself or
any such business." 1

1The wife's affidavit appears to be missing at least one page. The
final page of her affidavit states only "conditions of the Final Decree of
Divorce or for the damages in the breach of the same," before the wife's
signature and the notarization of the document appear. The clerk of this
court communicated with the trial-court clerk's office and confirmed that
the wife's affidavit, which was electronically filed in the trial court,
appears in the trial court's records as it does in the record on appeal.
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On August 8, 2024, the wife also filed a motion for the entry of a

"final decree of divorce/default judgment" and a proposed final judgment.

In addition to the property division outlined in the wife's affidavit, which

was restated verbatim in the proposed judgment, the proposed judgment

also provides that the parties are divorced on account of incompatibility

of temperament; that neither party may again contract marriage until 60

days of the date of the entry of the judgment, except to each other; that

each party shall be responsible for his or her own attorney's fees and

costs; that "the parties shall execute and/or deliver any documentation

necessary to effectuate the" final divorce judgment, including quitclaim

deeds, transfer of business interests, and other documents necessary to

transfer title and ownership within 30 days "of the execution of this

agreement"; that each of the parties shall refrain from harassing,

annoying, or alarming the other "subsequent to the signing"; that the wife

shall have the right to resume the use of the name Pippin should she so

choose; and that either party who violates the terms of the final judgment

shall be liable for the expenses, costs, and attorney's fees resulting from

the bringing of any suit or other proceeding to enforce the performance of

any terms or conditions of the final divorce judgment. On August 8, 2024,

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the trial court entered a judgment adopting in its entirety the wife's

proposed final judgment.

On September 6, 2024, the husband filed, pursuant to Rule 55(c),

Ala. R. Civ. P., a motion to set aside the default judgment. He asserted,

among other things, that, after he was served with the summons and the

complaint, he and the wife had engaged in settlement discussions in an

effort to resolve the divorce; that his failure to timely file his answer was

the result of mistake, inadvertence, or excusable neglect and not the

result of any willful or culpable conduct on his part; that Elmore County

was not the proper venue for the divorce action; and that the wife had

failed to submit sufficient evidence in support of a default judgment in

accordance with Rule 55(e), Ala. R. Civ. P. The husband filed in support

of his motion his own affidavit, in which he attested, among other things,

that he and the wife had engaged in ongoing settlement discussions in an

attempt to settle the divorce; that he had had no notice that the wife

wanted to move forward with the divorce case at the time he received a

copy of the default judgment; that, at the time of the commencement of

the divorce case, neither party had resided in Elmore County and the

parties had not separated while residing in Elmore County; that he

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"disagree[d] with the claims made by the wife"; and that he "would like

the opportunity to present [his] own claims and defenses in order [to]

obtain a divorce with an equitable division." On September 6, 2024, the

husband also filed a motion for a change of venue; he asserted that,

pursuant to Ala. Code 1975, § 30-2-4, Elmore County was an improper

venue for the filing of the divorce action and requested an order

transferring the case to the Montgomery Circuit Court.

On September 9, 2024, the wife filed an objection to the husband's

motion to set aside the default judgment and an objection to the

husband's motion for a change of venue. On September 17, 2024, a

hearing was conducted on the husband's motions. In response to the

arguments presented by the husband's counsel in support of the

husband's motion to set aside the default judgment and the motion for a

change of venue, the wife's counsel made certain assertions of fact; we

note, however, that "[t]he unsworn statements, factual assertions, and

arguments of counsel are not evidence." Ex parte Russell, 911 So. 2d 719,

725 (Ala. Civ. App. 2005). Additionally, the wife's counsel argued that

the husband had waived the issue of improper venue; that the wife's

assertion in her affidavit that she was entitled to the property outlined

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therein was sufficient to support the division of the marital property; and

that the husband's failure to respond to the summons and the complaint

did not amount to inadvertence, mistake, or excusable neglect. The wife's

counsel conceded that the parties did not reside and had not separated in

Elmore County but, the wife's counsel argued, "[y]ou can file in a foreign

venue if there is no objection."

On October 3, 2024, the trial court entered an order denying the

husband's motion to set aside the default judgment and all other pending

motions; it concluded that the husband had not presented a meritorious

defense, that the wife would be unfairly prejudiced if the default

judgment were to be set aside, and that

"the default judgment was a result of the [husband's] own
culpable conduct as he was served with the [divorce
complaint] and had full knowledge and input concerning this
matter with no excuse as to his failure to follow proper legal
procedure which was available to him through the paperwork
[that] was served upon him."

On October 25, 2024, the husband timely filed a notice of appeal to this

court.

Analysis

The husband first argues on appeal that the trial court erred in

denying his motion to set aside the default judgment because, he says,

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the trial court lacked statutory authority to enter the judgment. To the

extent that the husband argues that the judgment should be reversed

based on the absence of an entry of default against the husband before

the trial court entered the default judgment, see Griffin v. Blackwell, 57

So. 3d 161 (Ala. Civ. App. 2010) (discussing that the failure to follow the

procedure that a party must follow in order to obtain a default judgment

pursuant to Rule 55, Ala. R. Civ. P., amounts to reversible error), we note

that the husband failed to raise that argument before the trial court.

Accordingly, we cannot consider this issue for the first time on appeal.

See Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992) ("[An

appellate] court cannot consider arguments raised for the first time on

appeal; rather, our review is restricted to the evidence and arguments

considered by the trial court.").

The husband also argues, as he did before the trial court, that the

trial court erred in entering the default judgment because there was not

a sufficient evidentiary basis for the judgment. Rule 55(e) provides:

"Proof Required Despite Default in Certain Cases. No
judgment by default shall be entered against minors,
incompetents, or parties to an action for divorce or annulment
of marriage unless the claimant establishes the party's claim
or right to relief by evidence."

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In Mendia v. Encarnacion, 275 So. 3d 158, 162 (Ala. Civ. App. 2018),

this court concluded that a default judgment of divorce was due to be set

aside because there had been no evidence presented in support of the

grounds upon which the divorce had been granted. In Miller v. Miller,

[Ms. CL-2023-0251, Sept. 29, 2023] ___ So. 3d ___ (Ala. Civ. App. 2023),

this court overruled Mendia insofar as it concluded that the lack of

evidence of a ground for a divorce judgment renders a judgment void for

lack of subject-matter jurisdiction. This court affirmed in Miller,

however, that a trial court lacks statutory authority to enter a divorce

judgment without evidence in support of a ground for divorce. ___ So. 3d

at ___. See also Johnson v. Johnson, 168 So. 3d 61, 64 (Ala. Civ. App.

2014) (reversing a judgment of divorce because the record contained no

evidence to support the ground for divorce contained in the judgment or

the orders regarding custody, support and visitation); Dubose v. Dubose,

132 So. 3d 17, 21 (Ala. Civ. App. 2013) (reversing a judgment divorcing

the parties as having been entered without statutory authority because

the judgment was not based on any evidence indicating that the parties

were incompatible or that there had been an irretrievable breakdown of

the marriage).

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In the present case, the wife presented only her affidavit as

evidence in support of her motion for the entry of a default judgment.

Although the wife's counsel argued at the September 17, 2024, hearing

that the division of the marital property was sufficiently supported by

the wife's assertion in her affidavit that she was entitled to the property,

the wife's counsel did not argue that the wife's assertions in her affidavit

presented evidence that would support grounds for a divorce. The wife's

affidavit -- her only evidentiary submission -- fails to present any

evidence regarding her asserted grounds for the divorce. Because the

wife failed to present any such evidence, the trial court lacked statutory

authority to enter the default judgment divorcing the parties and

purporting to divide the parties' property. See Miller, supra; Helms v.

Helms, 50 Ala. App. 453, 455, 280 So. 2d 159, 161-62 (Ala. Civ. App. 1973)

("[T]his court having determined that there was no authority in the trial

court to grant a divorce, there can be no property settlement due to the

dissolution of the marriage."). Accordingly, we reverse the trial court's

judgment to the extent that it denied relief to the husband under Rule

55(c). Having determined that the trial court lacked statutory authority

to enter the default judgment, we decline to consider the husband's

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argument on appeal that the trial court exceeded its discretion in denying

his motion to set aside the default judgment based on the analysis

outlined in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524

So. 2d 600 (Ala. 1988).

The husband also argues on appeal that the trial court erred in

denying his motion for a change of venue. Section 30-2-4, Ala. Code 1975,

provides:

"Complaints for divorce may be filed in the circuit court
of the county in which the defendant resides, or in the circuit
court of the county in which the parties resided when the
separation occurred, or if the defendant is a nonresident, then
in the circuit court of the county in which the other party to
the marriage resides."

In the present case, the wife failed to make any assertions before the trial

court indicating that venue was proper in Elmore County. The wife's

counsel argued at the September 17, 2024, hearing that the husband had

waived the issue of improper venue. Rule 82(d)(1), Ala. R. Civ. P.,

provides: "When an action is commenced laying venue in the wrong

county, the court, on timely motion of any defendant, shall transfer the

action to the court in which the action might have been properly filed and

the case shall proceed as though originally filed therein."

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In Ex parte Lugo de Vega, 65 So. 3d 886, 894 (Ala. 2010), our

supreme court acknowledged that "Rule 82[(d)(1), Ala. R. Civ. P.,] does

not define what constitutes a 'timely motion' for a change of venue." It

looked first to Rule 1(c), Ala. R. Civ. P., which provides that the rules of

civil procedure "shall be construed and administered to secure the just,

speedy and inexpensive determination of every action," and then to cases

that had addressed the timeliness of a motion under Rule 82(d)(1) for

guidance; it stated, in pertinent part:

"In Ex parte Starr[, 419 So. 2d 222 (Ala. 1982)], this
Court held: 'The first time the defendant raised the venue
issue came some nine months after the complaint was filed.
This is not a timely objection under Alabama Rules of Civil
Procedure, Rule 82.' 419 So. 2d at 223. In that case, the
defendant moved to set aside a default judgment against him
on the ground that his 'failure to file an answer was due to
inadvertence or mistake.' Id. The trial court set aside the
default judgment, and the plaintiffs challenged its ruling by a
petition for a writ of mandamus to this Court. After this Court
denied the plaintiffs' petition for a writ of mandamus, the
defendant moved the trial court to transfer the action under
Rule 82. The trial court denied the motion on the basis that
it was untimely filed, and the defendant then petitioned this
Court for a writ of mandamus directing the trial court to
transfer the action. This Court denied the petition,
concluding that, '[u]nder these facts, we hold that [the
defendant's] objection to venue comes too late.' 419 So. 2d at
223. In explaining its decision, this Court noted that the
defendant had 'put the plaintiffs to considerable expense, both
in terms of time and money, and has sought and received
relief from a default judgment' and that '[o]nly after the

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plaintiffs failed in this Court to have the judgment reinstated
did he raise the venue issue.' Id."

65 So. 3d at 894. The supreme court also discussed Ex parte Movie

Gallery, 31 So. 3d 104 (Ala. 2009), and Ex parte Michelin North America,

Inc., 56 So. 3d 604 (Ala. 2010). It observed that, in both of those cases,

the defendants had answered the complaints, raising the defense of

improper venue but had failed to file motions to transfer venue until

months after they had filed their answers; nevertheless, in both cases,

our supreme court concluded that the motions were not untimely.

Clearly, based on Ex parte Movie Gallery and Ex parte Michelin,

the passage of time alone will not cause a motion to transfer venue to be

considered untimely. In the present case, the husband timely filed a

motion to set aside the default judgment within 30 days after the entry

of the judgment, pursuant to Rule 55(c), and less than three months after

he had been served with the summons and the complaint. The husband

presented his affidavit in support of his assertion that his failure to file

an answer to the wife's complaint was negligent, and not willful, based

on the parties' ongoing attempts to negotiate a settlement. See Camping

World, Inc. v. McCurdy, 111 So. 3d 738, 742-43 (Ala. Civ. App. 2012)

(discussing that the failure to file an answer as the result of a good-faith

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belief that ongoing settlement negotiations obviated the need to answer

the complaint was, at worst, negligence). Unlike in Ex parte Starr, 419

So. 2d 222 (Ala. 1982), the husband promptly filed his motion for a change

of venue on the date of his first appearance before the trial court. The

only filings that had been presented were the complaint and those filings

presented in support of the wife's request for a default judgment, which

we have determined was not properly supported by sufficient evidence.

Thus, we cannot conclude that any delay in the husband's filing for a

motion for a change of venue was prejudicial to the wife. The husband

supported his motion with his affidavit containing facts indicating that

venue was improper in Elmore County, and the wife's counsel effectively

conceded at the September 17, 2024, hearing that venue was improper

pursuant to § 30-2-4. Based on the relevant authority and under the

present circumstances, we cannot determine that the husband's motion

was untimely or that he waived the defense of improper venue.

Accordingly, we conclude that the trial court erred in denying the

husband's motion for a change of venue.

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Conclusion

We reverse the trial court's judgment insofar as it denied the

husband's motion to set aside the default judgment and denied the

husband's motion to transfer venue. We remand the case for the trial

court to enter an order setting aside the default judgment, to vacate its

order denying the husband's motion for a change of venue, and to transfer

the case to Montgomery County.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Hanson, Fridy, and Lewis, JJ., concur.

Edwards, J., concurs in the result, without opinion.

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