JONES v. JONES (1998)

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.

CRAWLEY, Judge.

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