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REL: 05/10/2013

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



REL: 05/10/2013

Southern Reporter
Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2012-2013
2120102
Curtis Austin v.
Comelia Austin
Appeal from Jefferson Circuit Court (DR-04-421.01)
On Application for Rehearing
THOMAS, Judge.
The opinion of March 8, 2013, is withdrawn, and the following is substituted therefor.
Curtis Austin ("the father") and Comelia Austin ("the mother") were divorced in July 2004. The judgment of divorce incorporated an agreement of the parties, and, among other



2120102
things, the agreement awarded the parties joint legal custody of the parties' children, awarded the mother primary physical custody of the children, ordered the father to pay child support in the amount of $400 per month, and ordered the father to be responsible for half of the noncovered medical expenses incurred by the children. In December 2011, the mother, who was a that time acting pro se, filed a form petition seeking modification of the father's child-support obligation. The petition did not indicate that the father had not paid child support as previously ordered. According to the signed return of service contained in the record on appeal, the father was served with the mother's petition on April 5, 2012.
On April 26, 2012, the mother moved to have the matter set for a trial. In response, the trial court entered a scheduling order on May 11, 2012, that set the action for a trial to be held on June 21, 2012. Notice of the entry of the scheduling order was sent to the mother. However, the record does not indicate that notice was sent to the father, who had yet to answer the mother's petition.

2



2120102
things, the agreement awarded the parties joint legal custody of the parties' children, awarded the mother primary physical custody of the children, ordered the father to pay child support in the amount of $400 per month, and ordered the father to be responsible for half of the noncovered medical expenses incurred by the children. In December 2011, the mother, who was a that time acting pro se, filed a form petition seeking modification of the father's child-support obligation. The petition did not indicate that the father had not paid child support as previously ordered. According to the signed return of service contained in the record on appeal, the father was served with the mother's petition on April 5, 2012.
On April 26, 2012, the mother moved to have the matter set for a trial. In response, the trial court entered a scheduling order on May 11, 2012, that set the action for a trial to be held on June 21, 2012. Notice of the entry of the scheduling order was sent to the mother. However, the record does not indicate that notice was sent to the father, who had yet to answer the mother's petition.

2



2120102
things, the agreement awarded the parties joint legal custody of the parties' children, awarded the mother primary physical custody of the children, ordered the father to pay child support in the amount of $400 per month, and ordered the father to be responsible for half of the noncovered medical expenses incurred by the children. In December 2011, the mother, who was a that time acting pro se, filed a form petition seeking modification of the father's child-support obligation. The petition did not indicate that the father had not paid child support as previously ordered. According to the signed return of service contained in the record on appeal, the father was served with the mother's petition on April 5, 2012.
On April 26, 2012, the mother moved to have the matter set for a trial. In response, the trial court entered a scheduling order on May 11, 2012, that set the action for a trial to be held on June 21, 2012. Notice of the entry of the scheduling order was sent to the mother. However, the record does not indicate that notice was sent to the father, who had yet to answer the mother's petition.

2



2120102
On May 22, 2012, the mother, who had employed an attorney, filed an amended petition again seeking modification of the father's child-support obligation and alleging in addition that the father had not paid his child-support obligation after June 2011 and that the father had not paid his half of the noncovered medical expenses incurred by the children. Like the original petition, the amended petition sought an increase in the father's child-support obligation; however, the amended petition further sought past-due child support and interest, past-due noncovered medical expenses that had been incurred by the children, and an attorney fee. The amended petition did not specifically mention the word contempt, but the allegations contained in the amended petition stated a claim for contempt against the father. See Rule 8(f), Ala. R. Civ. P. (stating that pleadings "shall be so construed as to do substantial justice"); Waters v. Jolly,
582 So. 2d 1048, 1056 (Ala. 1991) (explaining that, under Rule
8(f), "[a]ll that is required is that the complaint adequately notify the [defendant] of the plaintiffs' claims"). Although the mother's amended petition was filed less than 42 days before the trial setting, the mother did not seek leave of

3



2120102
On May 22, 2012, the mother, who had employed an attorney, filed an amended petition again seeking modification of the father's child-support obligation and alleging in addition that the father had not paid his child-support obligation after June 2011 and that the father had not paid his half of the noncovered medical expenses incurred by the children. Like the original petition, the amended petition sought an increase in the father's child-support obligation; however, the amended petition further sought past-due child support and interest, past-due noncovered medical expenses that had been incurred by the children, and an attorney fee. The amended petition did not specifically mention the word contempt, but the allegations contained in the amended petition stated a claim for contempt against the father. See Rule 8(f), Ala. R. Civ. P. (stating that pleadings "shall be so construed as to do substantial justice"); Waters v. Jolly,
582 So. 2d 1048, 1056 (Ala. 1991) (explaining that, under Rule
8(f), "[a]ll that is required is that the complaint adequately notify the [defendant] of the plaintiffs' claims"). Although the mother's amended petition was filed less than 42 days before the trial setting, the mother did not seek leave of

3



2120102
On May 22, 2012, the mother, who had employed an attorney, filed an amended petition again seeking modification of the father's child-support obligation and alleging in addition that the father had not paid his child-support obligation after June 2011 and that the father had not paid his half of the noncovered medical expenses incurred by the children. Like the original petition, the amended petition sought an increase in the father's child-support obligation; however, the amended petition further sought past-due child support and interest, past-due noncovered medical expenses that had been incurred by the children, and an attorney fee. The amended petition did not specifically mention the word contempt, but the allegations contained in the amended petition stated a claim for contempt against the father. See Rule 8(f), Ala. R. Civ. P. (stating that pleadings "shall be so construed as to do substantial justice"); Waters v. Jolly,
582 So. 2d 1048, 1056 (Ala. 1991) (explaining that, under Rule
8(f), "[a]ll that is required is that the complaint adequately notify the [defendant] of the plaintiffs' claims"). Although the mother's amended petition was filed less than 42 days before the trial setting, the mother did not seek leave of

3



2120102
On May 22, 2012, the mother, who had employed an attorney, filed an amended petition again seeking modification of the father's child-support obligation and alleging in addition that the father had not paid his child-support obligation after June 2011 and that the father had not paid his half of the noncovered medical expenses incurred by the children. Like the original petition, the amended petition sought an increase in the father's child-support obligation; however, the amended petition further sought past-due child support and interest, past-due noncovered medical expenses that had been incurred by the children, and an attorney fee. The amended petition did not specifically mention the word contempt, but the allegations contained in the amended petition stated a claim for contempt against the father. See Rule 8(f), Ala. R. Civ. P. (stating that pleadings "shall be so construed as to do substantial justice"); Waters v. Jolly,
582 So. 2d 1048, 1056 (Ala. 1991) (explaining that, under Rule
8(f), "[a]ll that is required is that the complaint adequately notify the [defendant] of the plaintiffs' claims"). Although the mother's amended petition was filed less than 42 days before the trial setting, the mother did not seek leave of

3



2120102
court, as she was required to do by Rule 15(a), Ala. R. Civ. P. (indicating that a party must seek leave of court to amend a pleading if the amendment comes less than 42 days before the first trial setting).
The trial was held as scheduled on June 21, 2012; however, the father, who had never answered the mother's petition or amended petition, did not appear. The trial court entered a default judgment on June 29, 2012, finding the father to be in contempt, calculating the arrearages of child support and medical expenses owed by the father, increasing the father's child-support obligation to $1,115 per month, awarding the mother a costs judgment of $267,1 and awarding the mother's attorney a $1,500 attorney fee. In that judgment, the trial court noted that the father could purge himself of contempt by paying $7,900, plus interest. On the same date, the trial court entered an order of attachment ordering that the father be placed in the Jefferson County jail until further order of the trial court.
1The June 29, 2012, judgment actually awarded the mother $303 in costs; however, the trial court entered an order on
July 5, 2012, pursuant to Rule 60(a), Ala. R. Civ. P., correcting a clerical error and reducing the amount of costs awarded in the judgment to $267.

4



2120102
court, as she was required to do by Rule 15(a), Ala. R. Civ. P. (indicating that a party must seek leave of court to amend a pleading if the amendment comes less than 42 days before the first trial setting).
The trial was held as scheduled on June 21, 2012; however, the father, who had never answered the mother's petition or amended petition, did not appear. The trial court entered a default judgment on June 29, 2012, finding the father to be in contempt, calculating the arrearages of child support and medical expenses owed by the father, increasing the father's child-support obligation to $1,115 per month, awarding the mother a costs judgment of $267,1 and awarding the mother's attorney a $1,500 attorney fee. In that judgment, the trial court noted that the father could purge himself of contempt by paying $7,900, plus interest. On the same date, the trial court entered an order of attachment ordering that the father be placed in the Jefferson County jail until further order of the trial court.
1The June 29, 2012, judgment actually awarded the mother $303 in costs; however, the trial court entered an order on
July 5, 2012, pursuant to Rule 60(a), Ala. R. Civ. P., correcting a clerical error and reducing the amount of costs awarded in the judgment to $267.

4



2120102
court, as she was required to do by Rule 15(a), Ala. R. Civ. P. (indicating that a party must seek leave of court to amend a pleading if the amendment comes less than 42 days before the first trial setting).
The trial was held as scheduled on June 21, 2012; however, the father, who had never answered the mother's petition or amended petition, did not appear. The trial court entered a default judgment on June 29, 2012, finding the father to be in contempt, calculating the arrearages of child support and medical expenses owed by the father, increasing the father's child-support obligation to $1,115 per month, awarding the mother a costs judgment of $267,1 and awarding the mother's attorney a $1,500 attorney fee. In that judgment, the trial court noted that the father could purge himself of contempt by paying $7,900, plus interest. On the same date, the trial court entered an order of attachment ordering that the father be placed in the Jefferson County jail until further order of the trial court.
1The June 29, 2012, judgment actually awarded the mother $303 in costs; however, the trial court entered an order on
July 5, 2012, pursuant to Rule 60(a), Ala. R. Civ. P., correcting a clerical error and reducing the amount of costs awarded in the judgment to $267.

4



2120102
court, as she was required to do by Rule 15(a), Ala. R. Civ. P. (indicating that a party must seek leave of court to amend a pleading if the amendment comes less than 42 days before the first trial setting).
The trial was held as scheduled on June 21, 2012; however, the father, who had never answered the mother's petition or amended petition, did not appear. The trial court entered a default judgment on June 29, 2012, finding the father to be in contempt, calculating the arrearages of child support and medical expenses owed by the father, increasing the father's child-support obligation to $1,115 per month, awarding the mother a costs judgment of $267,1 and awarding the mother's attorney a $1,500 attorney fee. In that judgment, the trial court noted that the father could purge himself of contempt by paying $7,900, plus interest. On the same date, the trial court entered an order of attachment ordering that the father be placed in the Jefferson County jail until further order of the trial court.
1The June 29, 2012, judgment actually awarded the mother $303 in costs; however, the trial court entered an order on
July 5, 2012, pursuant to Rule 60(a), Ala. R. Civ. P., correcting a clerical error and reducing the amount of costs awarded in the judgment to $267.

4



2120102
court, as she was required to do by Rule 15(a), Ala. R. Civ. P. (indicating that a party must seek leave of court to amend a pleading if the amendment comes less than 42 days before the first trial setting).
The trial was held as scheduled on June 21, 2012; however, the father, who had never answered the mother's petition or amended petition, did not appear. The trial court entered a default judgment on June 29, 2012, finding the father to be in contempt, calculating the arrearages of child support and medical expenses owed by the father, increasing the father's child-support obligation to $1,115 per month, awarding the mother a costs judgment of $267,1 and awarding the mother's attorney a $1,500 attorney fee. In that judgment, the trial court noted that the father could purge himself of contempt by paying $7,900, plus interest. On the same date, the trial court entered an order of attachment ordering that the father be placed in the Jefferson County jail until further order of the trial court.
1The June 29, 2012, judgment actually awarded the mother $303 in costs; however, the trial court entered an order on
July 5, 2012, pursuant to Rule 60(a), Ala. R. Civ. P., correcting a clerical error and reducing the amount of costs awarded in the judgment to $267.

4



2120102

On July 15, 2012, the father, who had been incarcerated as a result of the order of attachment, filed a motion pursuant to Rule 55(c), Ala. R. Civ. P., seeking vacation of the trial court's June 29, 2012, judgment and attachment order.2 In the same motion, the father sought immediate release from incarceration.3 The father amended his postjudgment motion on July 16, 2012, and again on August 1, 2012. With his third amended postjudgment motion, the father

2The father relied on Rule 59, Ala. R. Civ. P., in his motion, but, because the judgment entered by the trial court was, in effect, a default judgment, see Triple D Trucking,  Inc. v. Tri Sands, Inc., 840 So. 2d 869, 871 n.2 (Ala. 2002) (construing a judgment entered in favor of a plaintiff after the failure of the defendants to appear as a default judgment), we construe his motion seeking to vacate the judgment as a motion to set aside a default judgment under Rule 55(c). See R.J.G. v. S.S.W., 42 So. 3d 747, 753 (Ala. Civ. App. 2009) (treating a motion styled as a Rule 59 motion as a Rule 55(c) motion when the motion sought "the type of relief properly sought in a motion filed pursuant to Rule 55(c)," which permits a trial court to set aside a default judgment); see also Englebert v. Englebert, 791 So. 2d 975 (Ala. Civ. App. 2000) (construing a motion filed within 30 days of the entry of a default judgment as a Rule 55(c) motion as opposed to a Rule 60(b) motion) ; see, generally, Ex parte  Mutual Sav. Life Ins. Co., 765 So. 2d 649, 650 (Ala. 1998) (stating that an appellate court "looks to the essence of a motion, not just to its title, to determine how the motion should be treated under our Rules of Civil Procedure").
3The record reflects that the father ultimately sought a writ of habeas corpus from a different circuit court judge, which was granted.

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2120102

On July 15, 2012, the father, who had been incarcerated as a result of the order of attachment, filed a motion pursuant to Rule 55(c), Ala. R. Civ. P., seeking vacation of the trial court's June 29, 2012, judgment and attachment order.2 In the same motion, the father sought immediate release from incarceration.3 The father amended his postjudgment motion on July 16, 2012, and again on August 1, 2012. With his third amended postjudgment motion, the father

2The father relied on Rule 59, Ala. R. Civ. P., in his motion, but, because the judgment entered by the trial court was, in effect, a default judgment, see Triple D Trucking,  Inc. v. Tri Sands, Inc., 840 So. 2d 869, 871 n.2 (Ala. 2002) (construing a judgment entered in favor of a plaintiff after the failure of the defendants to appear as a default judgment), we construe his motion seeking to vacate the judgment as a motion to set aside a default judgment under Rule 55(c). See R.J.G. v. S.S.W., 42 So. 3d 747, 753 (Ala. Civ. App. 2009) (treating a motion styled as a Rule 59 motion as a Rule 55(c) motion when the motion sought "the type of relief properly sought in a motion filed pursuant to Rule 55(c)," which permits a trial court to set aside a default judgment); see also Englebert v. Englebert, 791 So. 2d 975 (Ala. Civ. App. 2000) (construing a motion filed within 30 days of the entry of a default judgment as a Rule 55(c) motion as opposed to a Rule 60(b) motion) ; see, generally, Ex parte  Mutual Sav. Life Ins. Co., 765 So. 2d 649, 650 (Ala. 1998) (stating that an appellate court "looks to the essence of a motion, not just to its title, to determine how the motion should be treated under our Rules of Civil Procedure").
3The record reflects that the father ultimately sought a writ of habeas corpus from a different circuit court judge, which was granted.

5



2120102

On July 15, 2012, the father, who had been incarcerated as a result of the order of attachment, filed a motion pursuant to Rule 55(c), Ala. R. Civ. P., seeking vacation of the trial court's June 29, 2012, judgment and attachment order.2 In the same motion, the father sought immediate release from incarceration.3 The father amended his postjudgment motion on July 16, 2012, and again on August 1, 2012. With his third amended postjudgment motion, the father

2The father relied on Rule 59, Ala. R. Civ. P., in his motion, but, because the judgment entered by the trial court was, in effect, a default judgment, see Triple D Trucking,  Inc. v. Tri Sands, Inc., 840 So. 2d 869, 871 n.2 (Ala. 2002) (construing a judgment entered in favor of a plaintiff after the failure of the defendants to appear as a default judgment), we construe his motion seeking to vacate the judgment as a motion to set aside a default judgment under Rule 55(c). See R.J.G. v. S.S.W., 42 So. 3d 747, 753 (Ala. Civ. App. 2009) (treating a motion styled as a Rule 59 motion as a Rule 55(c) motion when the motion sought "the type of relief properly sought in a motion filed pursuant to Rule 55(c)," which permits a trial court to set aside a default judgment); see also Englebert v. Englebert, 791 So. 2d 975 (Ala. Civ. App. 2000) (construing a motion filed within 30 days of the entry of a default judgment as a Rule 55(c) motion as opposed to a Rule 60(b) motion) ; see, generally, Ex parte  Mutual Sav. Life Ins. Co., 765 So. 2d 649, 650 (Ala. 1998) (stating that an appellate court "looks to the essence of a motion, not just to its title, to determine how the motion should be treated under our Rules of Civil Procedure").
3The record reflects that the father ultimately sought a writ of habeas corpus from a different circuit court judge, which was granted.

5



2120102

presented his own affidavit and the affidavit of his employer, Billy Gaines, the owner of a barber salon; the father's affidavit stated that he had been terminated from his employment with Alabama Power Company in June 2011, and both affidavits stated that the father's income was $700 per month. The trial court did not hold a hearing on the father's motion, and it was deemed denied by operation of law on October 15, 2012.4 The father filed a notice of appeal on October 22,
2012.

4We note that the State Judicial Information System detail sheet reflects that the postjudgment motion was disposed of by separate order on July 31, 2012. However, no separate order appears in the record on appeal, and, after a request from this court's clerk's office, the Jefferson Circuit Clerk searched its records and found no separate order. Thus, because we have no order indicating whether the postjudgment motion was granted or denied, we must conclude that it was not disposed of by the trial court on July 31, 2012, or on any other date.
Moreover, Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the father's filing of his postjudgment motion on
July 15, 2012, was Saturday, October 13, 2012. Therefore, the
father's postjudgment motion was deemed denied on Monday, October 15, 2012. See First Alabama State Bank v. McGowan, 758 So. 2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So. 2d 621 (Ala. 1983); see also Williamson v. Fourth Ave.  Supermarket, Inc., 12 So. 3d 1200, 1203-04 (Ala. 2009).

6



2120102

presented his own affidavit and the affidavit of his employer, Billy Gaines, the owner of a barber salon; the father's affidavit stated that he had been terminated from his employment with Alabama Power Company in June 2011, and both affidavits stated that the father's income was $700 per month. The trial court did not hold a hearing on the father's motion, and it was deemed denied by operation of law on October 15, 2012.4 The father filed a notice of appeal on October 22,
2012.

4We note that the State Judicial Information System detail sheet reflects that the postjudgment motion was disposed of by separate order on July 31, 2012. However, no separate order appears in the record on appeal, and, after a request from this court's clerk's office, the Jefferson Circuit Clerk searched its records and found no separate order. Thus, because we have no order indicating whether the postjudgment motion was granted or denied, we must conclude that it was not disposed of by the trial court on July 31, 2012, or on any other date.
Moreover, Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the father's filing of his postjudgment motion on
July 15, 2012, was Saturday, October 13, 2012. Therefore, the
father's postjudgment motion was deemed denied on Monday, October 15, 2012. See First Alabama State Bank v. McGowan, 758 So. 2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So. 2d 621 (Ala. 1983); see also Williamson v. Fourth Ave.  Supermarket, Inc., 12 So. 3d 1200, 1203-04 (Ala. 2009).

6



2120102

presented his own affidavit and the affidavit of his employer, Billy Gaines, the owner of a barber salon; the father's affidavit stated that he had been terminated from his employment with Alabama Power Company in June 2011, and both affidavits stated that the father's income was $700 per month. The trial court did not hold a hearing on the father's motion, and it was deemed denied by operation of law on October 15, 2012.4 The father filed a notice of appeal on October 22,
2012.

4We note that the State Judicial Information System detail sheet reflects that the postjudgment motion was disposed of by separate order on July 31, 2012. However, no separate order appears in the record on appeal, and, after a request from this court's clerk's office, the Jefferson Circuit Clerk searched its records and found no separate order. Thus, because we have no order indicating whether the postjudgment motion was granted or denied, we must conclude that it was not disposed of by the trial court on July 31, 2012, or on any other date.
Moreover, Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the father's filing of his postjudgment motion on
July 15, 2012, was Saturday, October 13, 2012. Therefore, the
father's postjudgment motion was deemed denied on Monday, October 15, 2012. See First Alabama State Bank v. McGowan, 758 So. 2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So. 2d 621 (Ala. 1983); see also Williamson v. Fourth Ave.  Supermarket, Inc., 12 So. 3d 1200, 1203-04 (Ala. 2009).

6



2120102

presented his own affidavit and the affidavit of his employer, Billy Gaines, the owner of a barber salon; the father's affidavit stated that he had been terminated from his employment with Alabama Power Company in June 2011, and both affidavits stated that the father's income was $700 per month. The trial court did not hold a hearing on the father's motion, and it was deemed denied by operation of law on October 15, 2012.4 The father filed a notice of appeal on October 22,
2012.

4We note that the State Judicial Information System detail sheet reflects that the postjudgment motion was disposed of by separate order on July 31, 2012. However, no separate order appears in the record on appeal, and, after a request from this court's clerk's office, the Jefferson Circuit Clerk searched its records and found no separate order. Thus, because we have no order indicating whether the postjudgment motion was granted or denied, we must conclude that it was not disposed of by the trial court on July 31, 2012, or on any other date.
Moreover, Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the father's filing of his postjudgment motion on
July 15, 2012, was Saturday, October 13, 2012. Therefore, the
father's postjudgment motion was deemed denied on Monday, October 15, 2012. See First Alabama State Bank v. McGowan, 758 So. 2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So. 2d 621 (Ala. 1983); see also Williamson v. Fourth Ave.  Supermarket, Inc., 12 So. 3d 1200, 1203-04 (Ala. 2009).

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presented his own affidavit and the affidavit of his employer, Billy Gaines, the owner of a barber salon; the father's affidavit stated that he had been terminated from his employment with Alabama Power Company in June 2011, and both affidavits stated that the father's income was $700 per month. The trial court did not hold a hearing on the father's motion, and it was deemed denied by operation of law on October 15, 2012.4 The father filed a notice of appeal on October 22,
2012.

4We note that the State Judicial Information System detail sheet reflects that the postjudgment motion was disposed of by separate order on July 31, 2012. However, no separate order appears in the record on appeal, and, after a request from this court's clerk's office, the Jefferson Circuit Clerk searched its records and found no separate order. Thus, because we have no order indicating whether the postjudgment motion was granted or denied, we must conclude that it was not disposed of by the trial court on July 31, 2012, or on any other date.
Moreover, Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the father's filing of his postjudgment motion on
July 15, 2012, was Saturday, October 13, 2012. Therefore, the
father's postjudgment motion was deemed denied on Monday, October 15, 2012. See First Alabama State Bank v. McGowan, 758 So. 2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So. 2d 621 (Ala. 1983); see also Williamson v. Fourth Ave.  Supermarket, Inc., 12 So. 3d 1200, 1203-04 (Ala. 2009).

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presented his own affidavit and the affidavit of his employer, Billy Gaines, the owner of a barber salon; the father's affidavit stated that he had been terminated from his employment with Alabama Power Company in June 2011, and both affidavits stated that the father's income was $700 per month. The trial court did not hold a hearing on the father's motion, and it was deemed denied by operation of law on October 15, 2012.4 The father filed a notice of appeal on October 22,
2012.

4We note that the State Judicial Information System detail sheet reflects that the postjudgment motion was disposed of by separate order on July 31, 2012. However, no separate order appears in the record on appeal, and, after a request from this court's clerk's office, the Jefferson Circuit Clerk searched its records and found no separate order. Thus, because we have no order indicating whether the postjudgment motion was granted or denied, we must conclude that it was not disposed of by the trial court on July 31, 2012, or on any other date.
Moreover, Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the father's filing of his postjudgment motion on
July 15, 2012, was Saturday, October 13, 2012. Therefore, the
father's postjudgment motion was deemed denied on Monday, October 15, 2012. See First Alabama State Bank v. McGowan, 758 So. 2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So. 2d 621 (Ala. 1983); see also Williamson v. Fourth Ave.  Supermarket, Inc., 12 So. 3d 1200, 1203-04 (Ala. 2009).

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On appeal, the father makes several arguments. He first argues that the trial court erred in not "granting him a new trial" because, he says, he was never served with the scheduling order. He next argues that the trial court lacked subject-matter jurisdiction because the mother paid only one filing fee and because, he contends, a contempt petition and a modification petition cannot be included in the same pleading. The father then argues that the trial court improperly allowed the amended modification and contempt petition to be tried despite the fact that the mother's modification petition was amended without leave of court, which leave was required by Rule 15(a). Further, the father argues that the evidence submitted in support of his postjudgment motion established that he was unable to pay his child-support obligation and, thus, that he could not be held in contempt. Finally, the father argues that he was not properly served with the mother's amended petition; he contends that, because he was a party in default for failure to appear and because the mother's amended petition asserted a new claim against him, the mother was required by Rule 5(a), Ala. R. Civ. P., to serve the amended petition on him pursuant

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On appeal, the father makes several arguments. He first argues that the trial court erred in not "granting him a new trial" because, he says, he was never served with the scheduling order. He next argues that the trial court lacked subject-matter jurisdiction because the mother paid only one filing fee and because, he contends, a contempt petition and a modification petition cannot be included in the same pleading. The father then argues that the trial court improperly allowed the amended modification and contempt petition to be tried despite the fact that the mother's modification petition was amended without leave of court, which leave was required by Rule 15(a). Further, the father argues that the evidence submitted in support of his postjudgment motion established that he was unable to pay his child-support obligation and, thus, that he could not be held in contempt. Finally, the father argues that he was not properly served with the mother's amended petition; he contends that, because he was a party in default for failure to appear and because the mother's amended petition asserted a new claim against him, the mother was required by Rule 5(a), Ala. R. Civ. P., to serve the amended petition on him pursuant

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to Rule 4, Ala. R. Civ. P., by either personal service or certified mail.
We first consider the father's argument that the trial court lacked subject-matter jurisdiction because the mother's amended petition coupled a modification action with a contempt action. The father, relying on Opinion of the Clerk No. 21,
375 So. 2d 1066 (Ala. 1979), argues that the mother failed to
properly institute her contempt action because she did not file her contempt action separately or pay a separate filing fee. Although it appears that the opinion the father relies upon supports his contention, as does Opinion of the Clerk No.  25, 381 So. 2d 58, 59 (Ala. 1980) ("The basic differences between contempt proceedings and proceedings to modify a final decree preclude the inclusion of a petition for rule nisi and a petition to modify in the same pleading."), we note that both opinions predate the adoption of Rule 70A, Ala. R. Civ. P., which now governs contempt proceedings arising out of civil actions. See Ex parte Boykin, 656 So. 2d 821, 827 n.5 (Ala. Civ. App. 1994) (recognizing that, as of July 11, 1994, contempt proceedings arising from civil actions are no longer

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to Rule 4, Ala. R. Civ. P., by either personal service or certified mail.
We first consider the father's argument that the trial court lacked subject-matter jurisdiction because the mother's amended petition coupled a modification action with a contempt action. The father, relying on Opinion of the Clerk No. 21,
375 So. 2d 1066 (Ala. 1979), argues that the mother failed to
properly institute her contempt action because she did not file her contempt action separately or pay a separate filing fee. Although it appears that the opinion the father relies upon supports his contention, as does Opinion of the Clerk No.  25, 381 So. 2d 58, 59 (Ala. 1980) ("The basic differences between contempt proceedings and proceedings to modify a final decree preclude the inclusion of a petition for rule nisi and a petition to modify in the same pleading."), we note that both opinions predate the adoption of Rule 70A, Ala. R. Civ. P., which now governs contempt proceedings arising out of civil actions. See Ex parte Boykin, 656 So. 2d 821, 827 n.5 (Ala. Civ. App. 1994) (recognizing that, as of July 11, 1994, contempt proceedings arising from civil actions are no longer

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to Rule 4, Ala. R. Civ. P., by either personal service or certified mail.
We first consider the father's argument that the trial court lacked subject-matter jurisdiction because the mother's amended petition coupled a modification action with a contempt action. The father, relying on Opinion of the Clerk No. 21,
375 So. 2d 1066 (Ala. 1979), argues that the mother failed to
properly institute her contempt action because she did not file her contempt action separately or pay a separate filing fee. Although it appears that the opinion the father relies upon supports his contention, as does Opinion of the Clerk No.  25, 381 So. 2d 58, 59 (Ala. 1980) ("The basic differences between contempt proceedings and proceedings to modify a final decree preclude the inclusion of a petition for rule nisi and a petition to modify in the same pleading."), we note that both opinions predate the adoption of Rule 70A, Ala. R. Civ. P., which now governs contempt proceedings arising out of civil actions. See Ex parte Boykin, 656 So. 2d 821, 827 n.5 (Ala. Civ. App. 1994) (recognizing that, as of July 11, 1994, contempt proceedings arising from civil actions are no longer

8



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to Rule 4, Ala. R. Civ. P., by either personal service or certified mail.
We first consider the father's argument that the trial court lacked subject-matter jurisdiction because the mother's amended petition coupled a modification action with a contempt action. The father, relying on Opinion of the Clerk No. 21,
375 So. 2d 1066 (Ala. 1979), argues that the mother failed to
properly institute her contempt action because she did not file her contempt action separately or pay a separate filing fee. Although it appears that the opinion the father relies upon supports his contention, as does Opinion of the Clerk No.  25, 381 So. 2d 58, 59 (Ala. 1980) ("The basic differences between contempt proceedings and proceedings to modify a final decree preclude the inclusion of a petition for rule nisi and a petition to modify in the same pleading."), we note that both opinions predate the adoption of Rule 70A, Ala. R. Civ. P., which now governs contempt proceedings arising out of civil actions. See Ex parte Boykin, 656 So. 2d 821, 827 n.5 (Ala. Civ. App. 1994) (recognizing that, as of July 11, 1994, contempt proceedings arising from civil actions are no longer

8



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governed by Rule 33.3, Ala. R. Crim. P., and instead are governed by Rule 70A).
Rule 70A expressly provides that contempt proceedings arising out of civil actions are instituted by the filing of a petition and that such a contempt proceeding is governed by the Alabama Rules of Civil Procedure. Rule 18, Ala. R. Civ. P., provides that a party may assert as many claims as he or she has against an individual in the same action. Thus, based on the application of Rule 70A and Rule 18, we cannot agree with the father that the mother was not permitted to join her modification claim and her contempt claim in the same action.
However, we agree with the father that the mother's amended petition, which added her contempt claim, was not a proper amendment under Rule 15(a). That rule reads, in part: "Unless a court has ordered otherwise,

herwise, a party may of court, but subject

court has ordered amend a pleading without leave
to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause."

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governed by Rule 33.3, Ala. R. Crim. P., and instead are governed by Rule 70A).
Rule 70A expressly provides that contempt proceedings arising out of civil actions are instituted by the filing of a petition and that such a contempt proceeding is governed by the Alabama Rules of Civil Procedure. Rule 18, Ala. R. Civ. P., provides that a party may assert as many claims as he or she has against an individual in the same action. Thus, based on the application of Rule 70A and Rule 18, we cannot agree with the father that the mother was not permitted to join her modification claim and her contempt claim in the same action.
However, we agree with the father that the mother's amended petition, which added her contempt claim, was not a proper amendment under Rule 15(a). That rule reads, in part: "Unless a court has ordered otherwise,

herwise, a party may of court, but subject

court has ordered amend a pleading without leave
to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause."

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governed by Rule 33.3, Ala. R. Crim. P., and instead are governed by Rule 70A).
Rule 70A expressly provides that contempt proceedings arising out of civil actions are instituted by the filing of a petition and that such a contempt proceeding is governed by the Alabama Rules of Civil Procedure. Rule 18, Ala. R. Civ. P., provides that a party may assert as many claims as he or she has against an individual in the same action. Thus, based on the application of Rule 70A and Rule 18, we cannot agree with the father that the mother was not permitted to join her modification claim and her contempt claim in the same action.
However, we agree with the father that the mother's amended petition, which added her contempt claim, was not a proper amendment under Rule 15(a). That rule reads, in part: "Unless a court has ordered otherwise,

herwise, a party may of court, but subject

court has ordered amend a pleading without leave
to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause."

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governed by Rule 33.3, Ala. R. Crim. P., and instead are governed by Rule 70A).
Rule 70A expressly provides that contempt proceedings arising out of civil actions are instituted by the filing of a petition and that such a contempt proceeding is governed by the Alabama Rules of Civil Procedure. Rule 18, Ala. R. Civ. P., provides that a party may assert as many claims as he or she has against an individual in the same action. Thus, based on the application of Rule 70A and Rule 18, we cannot agree with the father that the mother was not permitted to join her modification claim and her contempt claim in the same action.
However, we agree with the father that the mother's amended petition, which added her contempt claim, was not a proper amendment under Rule 15(a). That rule reads, in part: "Unless a court has ordered otherwise,

herwise, a party may of court, but subject

court has ordered amend a pleading without leave
to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause."

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governed by Rule 33.3, Ala. R. Crim. P., and instead are governed by Rule 70A).
Rule 70A expressly provides that contempt proceedings arising out of civil actions are instituted by the filing of a petition and that such a contempt proceeding is governed by the Alabama Rules of Civil Procedure. Rule 18, Ala. R. Civ. P., provides that a party may assert as many claims as he or she has against an individual in the same action. Thus, based on the application of Rule 70A and Rule 18, we cannot agree with the father that the mother was not permitted to join her modification claim and her contempt claim in the same action.
However, we agree with the father that the mother's amended petition, which added her contempt claim, was not a proper amendment under Rule 15(a). That rule reads, in part: "Unless a court has ordered otherwise,

herwise, a party may of court, but subject

court has ordered amend a pleading without leave
to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause."

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The mother's amended petition was filed less than 42 days before the trial setting; thus, she was required to seek leave of court to amend her petition.
A party who fails to seek leave to amend a pleading under Rule 15(a) may suffer severe consequences. Our supreme court has adopted the United States Court of Appeals for the Eleventh Circuit's view on "the legal effect of an attempt to amend a complaint without obtaining leave of court" under Rule 15(a) .5 Image Marketing, Inc. v. Florence Television, L.L.C.,
884 So. 2d 822, 825-26 (Ala. 2003). According to our supreme court,
"'[i]n general, if an amendment that cannot be made as of right is served without obtaining the court's leave or the opposing party's consent, it is without legal effect  and any new matter it contains will not be  considered unless the amendment is  resubmitted for the court's approval.'"

5As our supreme court has noted, because "'the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when [an appellate court is] called upon to construe the Alabama Rules.'" Image Marketing, Inc. v. Florence Television,  L.L.C., 884 So. 2d 822, 825 (Ala. 2003) (quoting City of  Birmingham v. City of Fairfield, 396 So. 2d 692, 696 (Ala. 1981)).

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The mother's amended petition was filed less than 42 days before the trial setting; thus, she was required to seek leave of court to amend her petition.
A party who fails to seek leave to amend a pleading under Rule 15(a) may suffer severe consequences. Our supreme court has adopted the United States Court of Appeals for the Eleventh Circuit's view on "the legal effect of an attempt to amend a complaint without obtaining leave of court" under Rule 15(a) .5 Image Marketing, Inc. v. Florence Television, L.L.C.,
884 So. 2d 822, 825-26 (Ala. 2003). According to our supreme court,
"'[i]n general, if an amendment that cannot be made as of right is served without obtaining the court's leave or the opposing party's consent, it is without legal effect  and any new matter it contains will not be  considered unless the amendment is  resubmitted for the court's approval.'"

5As our supreme court has noted, because "'the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when [an appellate court is] called upon to construe the Alabama Rules.'" Image Marketing, Inc. v. Florence Television,  L.L.C., 884 So. 2d 822, 825 (Ala. 2003) (quoting City of  Birmingham v. City of Fairfield, 396 So. 2d 692, 696 (Ala. 1981)).

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The mother's amended petition was filed less than 42 days before the trial setting; thus, she was required to seek leave of court to amend her petition.
A party who fails to seek leave to amend a pleading under Rule 15(a) may suffer severe consequences. Our supreme court has adopted the United States Court of Appeals for the Eleventh Circuit's view on "the legal effect of an attempt to amend a complaint without obtaining leave of court" under Rule 15(a) .5 Image Marketing, Inc. v. Florence Television, L.L.C.,
884 So. 2d 822, 825-26 (Ala. 2003). According to our supreme court,
"'[i]n general, if an amendment that cannot be made as of right is served without obtaining the court's leave or the opposing party's consent, it is without legal effect  and any new matter it contains will not be  considered unless the amendment is  resubmitted for the court's approval.'"

5As our supreme court has noted, because "'the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when [an appellate court is] called upon to construe the Alabama Rules.'" Image Marketing, Inc. v. Florence Television,  L.L.C., 884 So. 2d 822, 825 (Ala. 2003) (quoting City of  Birmingham v. City of Fairfield, 396 So. 2d 692, 696 (Ala. 1981)).

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The mother's amended petition was filed less than 42 days before the trial setting; thus, she was required to seek leave of court to amend her petition.
A party who fails to seek leave to amend a pleading under Rule 15(a) may suffer severe consequences. Our supreme court has adopted the United States Court of Appeals for the Eleventh Circuit's view on "the legal effect of an attempt to amend a complaint without obtaining leave of court" under Rule 15(a) .5 Image Marketing, Inc. v. Florence Television, L.L.C.,
884 So. 2d 822, 825-26 (Ala. 2003). According to our supreme court,
"'[i]n general, if an amendment that cannot be made as of right is served without obtaining the court's leave or the opposing party's consent, it is without legal effect  and any new matter it contains will not be  considered unless the amendment is  resubmitted for the court's approval.'"

5As our supreme court has noted, because "'the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when [an appellate court is] called upon to construe the Alabama Rules.'" Image Marketing, Inc. v. Florence Television,  L.L.C., 884 So. 2d 822, 825 (Ala. 2003) (quoting City of  Birmingham v. City of Fairfield, 396 So. 2d 692, 696 (Ala. 1981)).

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The mother's amended petition was filed less than 42 days before the trial setting; thus, she was required to seek leave of court to amend her petition.
A party who fails to seek leave to amend a pleading under Rule 15(a) may suffer severe consequences. Our supreme court has adopted the United States Court of Appeals for the Eleventh Circuit's view on "the legal effect of an attempt to amend a complaint without obtaining leave of court" under Rule 15(a) .5 Image Marketing, Inc. v. Florence Television, L.L.C.,
884 So. 2d 822, 825-26 (Ala. 2003). According to our supreme court,
"'[i]n general, if an amendment that cannot be made as of right is served without obtaining the court's leave or the opposing party's consent, it is without legal effect  and any new matter it contains will not be  considered unless the amendment is  resubmitted for the court's approval.'"

5As our supreme court has noted, because "'the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when [an appellate court is] called upon to construe the Alabama Rules.'" Image Marketing, Inc. v. Florence Television,  L.L.C., 884 So. 2d 822, 825 (Ala. 2003) (quoting City of  Birmingham v. City of Fairfield, 396 So. 2d 692, 696 (Ala. 1981)).

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Image Marketing, 884 So. 2d at 826 (quoting Hoover v. Blue  Cross & Blue Shield of Alabama, 855 F.2d 1538, 1544 (11th Cir.
1988)).
However, our supreme court noted that the Hoover court had indicated that "'an untimely amended pleading served without judicial permission may be considered as properly introduced when leave to amend would have been granted had it been sought.'" Image Marketing, 884 So. 2d at 826 (quoting Hoover, 855 F.2d at 1544) . Because we consider it likely that the trial court in the present case would have granted the mother leave to amend had leave been sought, which conclusion is bolstered by the trial court's failure to grant the father's postjudgment motion despite his argument that the amended petition violated Rule 15(a), we cannot agree that the mother's failure to seek leave to amend her petition renders her pleading a nullity under the facts of this case. The mother's failure to seek leave to amend her petition, therefore, does not benefit the father.
The father's argument that the mother's amended petition was not properly served upon him, however, does prove successful for the father. As the father pointed out in his

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Image Marketing, 884 So. 2d at 826 (quoting Hoover v. Blue  Cross & Blue Shield of Alabama, 855 F.2d 1538, 1544 (11th Cir.
1988)).
However, our supreme court noted that the Hoover court had indicated that "'an untimely amended pleading served without judicial permission may be considered as properly introduced when leave to amend would have been granted had it been sought.'" Image Marketing, 884 So. 2d at 826 (quoting Hoover, 855 F.2d at 1544) . Because we consider it likely that the trial court in the present case would have granted the mother leave to amend had leave been sought, which conclusion is bolstered by the trial court's failure to grant the father's postjudgment motion despite his argument that the amended petition violated Rule 15(a), we cannot agree that the mother's failure to seek leave to amend her petition renders her pleading a nullity under the facts of this case. The mother's failure to seek leave to amend her petition, therefore, does not benefit the father.
The father's argument that the mother's amended petition was not properly served upon him, however, does prove successful for the father. As the father pointed out in his

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Image Marketing, 884 So. 2d at 826 (quoting Hoover v. Blue  Cross & Blue Shield of Alabama, 855 F.2d 1538, 1544 (11th Cir.
1988)).
However, our supreme court noted that the Hoover court had indicated that "'an untimely amended pleading served without judicial permission may be considered as properly introduced when leave to amend would have been granted had it been sought.'" Image Marketing, 884 So. 2d at 826 (quoting Hoover, 855 F.2d at 1544) . Because we consider it likely that the trial court in the present case would have granted the mother leave to amend had leave been sought, which conclusion is bolstered by the trial court's failure to grant the father's postjudgment motion despite his argument that the amended petition violated Rule 15(a), we cannot agree that the mother's failure to seek leave to amend her petition renders her pleading a nullity under the facts of this case. The mother's failure to seek leave to amend her petition, therefore, does not benefit the father.
The father's argument that the mother's amended petition was not properly served upon him, however, does prove successful for the father. As the father pointed out in his

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Image Marketing, 884 So. 2d at 826 (quoting Hoover v. Blue  Cross & Blue Shield of Alabama, 855 F.2d 1538, 1544 (11th Cir.
1988)).
However, our supreme court noted that the Hoover court had indicated that "'an untimely amended pleading served without judicial permission may be considered as properly introduced when leave to amend would have been granted had it been sought.'" Image Marketing, 884 So. 2d at 826 (quoting Hoover, 855 F.2d at 1544) . Because we consider it likely that the trial court in the present case would have granted the mother leave to amend had leave been sought, which conclusion is bolstered by the trial court's failure to grant the father's postjudgment motion despite his argument that the amended petition violated Rule 15(a), we cannot agree that the mother's failure to seek leave to amend her petition renders her pleading a nullity under the facts of this case. The mother's failure to seek leave to amend her petition, therefore, does not benefit the father.
The father's argument that the mother's amended petition was not properly served upon him, however, does prove successful for the father. As the father pointed out in his

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postjudgment motion and explains on appeal, Rule 5(a), Ala. R. Civ. P., despite stating that service need not be made on parties in default for failure to appear, requires that "pleadings asserting new or additional claims for relief against [parties in default for failure to appear] shall be served upon them in the manner provided for service of summons in Rule 4, [Ala. R. Civ. P.]." See Elliott v. Burch, 293 Ala. 244, 246, 301 So. 2d 557, 559 (1974) ("As we understand the portion of the Rule quoted above, it applies to a plaintiff who amends his complaint and asserts new or additional claims against one who fails to appear ...."); see also Rule 5(a)(2), Fed. R. Civ. P., and Varnes v. Local 91, Glass Bottle Blowers  Ass'n of United States and Canada, 674 F.2d 1365, 1368 (11th Cir. 1982) ("Rule 4, [Fed. R. Civ. P.,] and Rule 5(a)[, Fed. R. Civ. P.,] as it applies to parties in default for failure to appear, reflect a policy that a defendant should receive notice of all claims for relief upon which a court may enter judgment against him. Formal personal service impresses upon a defendant that judicial process has been invoked to effect a coercive remedy against him. Whether the notice be that an action has commenced or that the moving party has added a new

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or additional claim for relief against a party in default for
failure to appear, the need for notice is the same."). We
note that the federal courts, in construing the analogous
federal rule, have concluded that a party is "in default for
failure to appear" when that party does not appear in an
action; no formal adjudication of default by a court is
necessary. Varnes, 674 F.2d at 1368 n.3. Thus, the father,
because he did not answer the mother's petition, was a party
"in default for failure to appear," and, pursuant to Rule
5(a), the mother's amended petition had to be personally
served on the father in compliance with Rule 4.
"Strict compliance regarding service of process is
required," Aaron v. Aaron, 571 So. 2d 1150, 1151 (Ala. Civ.
App. 1990), and "failure of proper service under Rule 4,
A[la]. R. Civ. P., deprives a court of jurisdiction and
renders [a] judgment by default void." Shaddix v. Shaddix,
603 So. 2d 1096, 1099 (Ala. Civ. App. 1992); see also Bunbury
v. Bunbury, 553 So. 2d 612 (Ala. Civ. App. 1989).
"One of the requisites of personal jurisdiction over a defendant is 'perfected service of process giving notice to the defendant of the suit being
brought. ' parte Volkswagenwerk
Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983) . .... A judgment rendered against a defendant in the

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or additional claim for relief against a party in default for
failure to appear, the need for notice

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