REL: December 1, 2023

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, 2023-2024

_________________________

CL-2023-0243

_________________________

Fred M. Long 

v.

Teresa Carol Long

Appeal from Tuscaloosa Circuit Court

(DR-21-901026)

MOORE, Judge.

Fred M. Long ("the husband") appeals from a judgment entered by 

the Tuscaloosa Circuit Court ("the trial court") denying his Rule 60(b)(4), 

Ala. R. Civ. P., motion seeking to set aside a divorce judgment entered by 

the trial court. We affirm the trial court's judgment.
CL-2023-0243

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Background

On September 29, 2021, Teresa Carol Long ("the wife") filed in the 

trial court a complaint for a divorce against the husband. On that same 

date, the wife filed a Form CS-47 "Domestic Relations/Child-Support 

Information Sheet," see Rule 32.1, Ala. R. Jud. Admin., that indicated

that the husband resided at an address in Tuscaloosa, and the wife 

completed a summons form indicating that the husband could be served 

at that Tuscaloosa address. After several attempts to serve the husband 

at that address failed, on June 24, 2022, the wife filed a motion to extend 

the time to complete service. In her motion, the wife asserted that the 

husband was aware of the divorce proceeding but that she had been 

unable to serve the husband despite having hired a private-process 

server because, she stated, he had been avoiding service. The wife 

requested an additional 30 days to serve the husband personally at his 

place of employment, which she had ascertained to be in Orange Beach. 

The trial court granted the wife's motion.

On July 9, 2022, Stacie J. Tucker certified on the return of service 

portion of the summons form that the husband had walked away when 
CL-2023-0243

3

she had attempted personal service on him. On July 27, 2022, Tucker 

signed an affidavit attesting that the husband had left Tuscaloosa 

surreptitiously and had relocated; that the husband had been found in 

Baldwin County; that an attempt to serve the husband at his place of 

employment in Orange Beach was made when he was there but that the 

husband would not accept the service papers and had walked away. On 

July 28, 2022, the wife filed a motion requesting that the trial court enter 

an order finding that the husband had refused to accept service of process

and directing that the trial-court clerk perfect service on the husband by 

first-class mail. The wife attached to her motion the return of service and 

the affidavit executed by Tucker. The trial court granted the motion on 

that same date.

The Alabama State Judicial Information System Case Detail sheet 

("the SJIS case-action-summary sheet") for the divorce action indicates 

that, on July 29, 2002, the clerk sent the summons and complaint to the 

husband via first-class mail. The husband verified that the trial-court

clerk had sent the mail to the Tuscaloosa address that the wife had 

provided when she filed the complaint for a divorce. The SJIS case-
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4

action-summary sheet indicates that the mail was returned to the trialcourt clerk on August 12, 2022. On September 19, 2022, the trial court 

entered an order setting the matter for a status conference to be held on 

October 19, 2022. The SJIS case-action-summary sheet indicates that 

the trial-court clerk mailed a copy of that order to the husband; that mail 

also was returned to the clerk. 

On October 19, 2022, the date set for the status conference, the 

husband did not appear, and the wife moved for a default judgment. The 

trial court received testimony from the wife and an exhibit detailing the 

terms that the wife proposed for the divorce judgment. On October 20, 

2022, the trial court, noting that it had reviewed the record and was 

satisfied that the husband had been properly served and notified of the

proceedings, entered a default judgment divorcing the parties in 

accordance with the terms proposed by the wife. 

On November 17, 2022, the husband filed a verified motion for relief 

from the default judgment. In that motion, the husband stated that he 

had not resided at the Tuscaloosa address designated in the summons 

since May 2021, four months before the wife filed the complaint for a 
CL-2023-0243

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divorce; that the wife knew that he no longer resided there; that the wife 

had not attempted personal service on him as stated in Tucker's affidavit; 

and that all mail that had been sent by the trial-court clerk to the 

Tuscaloosa address, including the first-class mail containing the 

summons and complaint, had been returned because he did not reside 

there. The husband maintained that he had not attended the status 

conference as ordered because he had not been served with any pleadings 

or notice. The husband asserted that he had discovered that the trial 

court had entered a judgment divorcing the parties on November 8, 2022, 

"when he contacted counsel to check and see if [the wife] had been 

granted a divorce." The husband requested that the trial court set aside 

the default judgment "[g]iven the lack of service in this case with the 

attendant issues of due process related to the service issue ...."

On March 2, 2023, the trial court conducted a hearing on the 

husband's motion. At that hearing, the husband was personally served 

with the summons and complaint. On March 15, 2023, the trial court 

entered a judgment denying the motion to set aside "[a]fter considering 

the arguments of [c]ounsel[] and the [s]ubmissions ...." On March 22, 
CL-2023-0243

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2023, the husband filed a motion to reconsider the denial of his motion to 

set aside, arguing, for the first time, that the default judgment should be 

set aside pursuant to Rule 55(c), Ala. R. Civ. P., as construed by Kirtland 

v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1998), 

and attaching an affidavit in support of his new theory. The trial court 

entered an order denying the motion to reconsider on that same date, 

explaining that it had found that the husband had avoided service, that 

his due-process rights had not been violated, and that the husband had 

not previously moved to set aside the default judgment pursuant to Rule 

55(c) and Kirtland. On April 14, 2023, the husband filed a notice of 

appeal to this court.

Appellate Jurisdiction

Before proceeding to the merits, we must first address whether we 

have jurisdiction over this appeal. The trial court entered a default 

judgment on October 20, 2022. The husband filed his motion for relief 

from the default judgment on November 17, 2022. In his motion, the 

husband asserted that he had not been served and that the default 

judgment had been entered without due process because of the alleged 
CL-2023-0243

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lack of service. The husband claimed that the default judgment should 

be vacated because it was void. In Slocumb Law Firm, LLC v. 

Greenberger, 332 So. 3d 903, 905-06 (Ala. Civ. App. 2020), this court 

determined that a postjudgment motion filed by a defendant within 30 

days of the entry of a default judgment alleging that the judgment should 

be vacated because of lack of service was, in substance, a motion filed 

pursuant to Rule 60(b)(4), Ala. R. Civ. P., which authorizes a trial court 

to vacate a void judgment upon the motion of a party. We likewise 

conclude in this case that, on November 17, 2022, the husband filed a 

Rule 60(b)(4) motion.

Ordinarily, a postjudgment motion may remain pending for only 90 

days without ruling, after which it will be deemed denied by operation of 

law. See Rule 59.1, Ala. R. Civ. P. However, Rule 59.1 does not apply to 

a Rule 60(b) motion, because such a motion does not present for review 

the merits of the underlying judgment but, instead, is a collateral attack

on the final judgment. Greenberger, 332 So. 3d at 906. Thus, the trial 

court had jurisdiction to deny the Rule 60(b)(4) motion when it entered 

its March 15, 2023, judgment to that effect.
CL-2023-0243

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A party has 42 days to appeal from a judgment denying a Rule 

60(b)(4) motion. See Rule 4, Ala. R. App. P. In this case, instead of 

immediately appealing, the husband purported to file a motion to 

reconsider the judgment denying the Rule 60(b)(4) motion and to assert 

an untimely Rule 55(c) motion. See Rule 55(c), Ala. R. Civ. P. (requiring 

a motion to set aside a default judgment to be filed within 30 days of entry 

of the judgment). However, once the trial court denied the Rule 60(b)(4) 

motion, its jurisdiction ended, and its subsequent proceedings were null 

and void. See Ex parte Keith, 771 So. 2d 1018, 1022 (Ala. 1998) ("After a 

trial court has denied a postjudgment motion pursuant to Rule 60(b), that 

court does not have jurisdiction to entertain a successive postjudgment 

motion to 'reconsider' or otherwise review its order denying the Rule 60(b) 

motion ...."). 

The husband filed his notice of appeal on April 14, 2023, within 42 

days of the entry of the judgment denying his Rule 60(b)(4) motion. This 

court has jurisdiction to review that judgment, but we cannot review the 

merits of the underlying judgment or the merits of the void orders that 

were entered after the denial of the Rule 60(b)(4) motion. We can 
CL-2023-0243

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consider only whether the underlying judgment is void and, thus, 

whether the Rule 60(b)(4) motion should have been granted. See Ex parte

J.L.P., 230 So. 3d 396, 401 (Ala. Civ. App. 2017).

Standard of Review

"This Court reviews de novo the trial court's decision on a Rule

60(b)(4) motion to set aside a judgment as void, because the question of 

the validity of a judgment is a question of law." Allsopp v. Bolding, 86 

So. 3d 952, 957 (Ala. 2011). 

"The standard of review on appeal from the denial of relief 

under Rule 60(b)(4)[, Ala. R. Civ. P.,] 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. A judgment is void only if the 

court rendering it lacked jurisdiction of the subject matter or 

of the parties, or if it acted in a manner inconsistent with due 

process. Satterfield v. Winston Industries, Inc., 553 So. 2d 61 

(Ala. 1989)."

Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 

212 (Ala. 1991). If this court determines that a defendant has been 

properly served in accordance with the law so that no due-process 

violation has occurred, we must affirm the denial of the Rule 60(b)(4) 

motion. See Allsopp, supra.
CL-2023-0243

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Discussion

Rule 4(e), Ala. R. Civ. P., states:

"If service of process is refused, and the certified mail receipt 

or the return of the person serving process states that service 

of process has been refused, the clerk shall send by ordinary 

mail a copy of the summons or other process and complaint or 

other document to be served to the defendant at the address 

set forth in the complaint or other document to be served. 

Service shall be deemed complete when the fact of mailing is 

entered of record."

(Emphasis added.). By its plain language, Rule 4(e) provides that, if the 

process server states in the return of service that a defendant has refused 

service, the clerk shall serve the defendant by sending the summons and 

complaint by ordinary mail to the address designated by the plaintiff in 

the complaint and noting the fact of mailing in the record. In this case, 

Tucker stated on the return of service and in an affidavit, in substance, 

that the husband had refused personal service of the summons and 

complaint. The clerk of the trial court sent the summons and complaint 

via first-class mail to the husband's Tuscaloosa address, the address that 

had been provided by the wife when she filed the complaint. On July 29, 

2022, the trial-court clerk made an entry in the SJIS case-action-
CL-2023-0243

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summary sheet noting the fact of mailing. Service on the husband was 

deemed complete on that date.

We could not locate any caselaw applying Rule 4(e) when a private 

process server stated that a defendant had refused service, but we did 

locate cases applying Rule 4(e) after a defendant refused service by 

certified mail. In Martin v. Robbins, 628 So. 2d 614 (Ala. 1993), our 

supreme court determined that a defendant who had twice refused 

service by certified mail had been properly served pursuant to Rule 4(e) 

when the clerk of the court subsequently delivered service by ordinary 

mail. In Fuller v. Fuller, 991 So. 2d 285, 287 (Ala. Civ. App. 2008), this 

court likewise held that a defendant had been properly served by the 

clerk of the court by ordinary mail pursuant to Rule 4(e) after attempts 

at service by certified mail had been refused as indicated by the certifiedmail receipt showing that it had been "unclaimed refused." See also

Corcoran v. Corcoran, 353 So. 2d 805 (Ala. Civ. App. 1978); cf. John H.

Peterson, Sr., Enters., Inc. v. Chaney, 486 So. 2d 1307, 1309 (Ala. Civ. 

App. 1986) (holding that service purportedly perfected pursuant to Rule 

4(e) was invalid when certified mail was merely "unclaimed" but not 
CL-2023-0243

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refused). Those cases support the proposition that service in accordance 

with Rule 4(e) is valid and confers upon the trial court personal 

jurisdiction over the defendant.

In his brief on appeal, the husband neither cites nor questions the 

applicability of Rule 4(e). The husband disputes that he refused service 

and notes that the trial-court clerk served him by ordinary mail at the 

Tuscaloosa address where, according to him, he had not resided since 

May 2021. However, the husband makes no argument that those facts 

render service pursuant to Rule 4(e) improper. In Fuller, this court 

recognized that a trial court may find that a defendant has refused 

service even though the defendant disputes that fact. In this case, Tucker 

detailed the circumstances in which personal service had been attempted 

and refused. In his verified motion for relief from the default judgment, 

the husband simply denied that those events had occurred. The trial 

court could have determined that Tucker, not the husband, was telling 

the truth. On our de novo review, the husband does not ask this court to 

determine otherwise. Additionally, Rule 4(e) plainly states that the trialcourt clerk shall serve the defendant by ordinary mail "at the address set 
CL-2023-0243

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forth in the complaint or other document to be served," which, in this 

case, was the Tuscaloosa address.

The husband also laments that the wife did not attempt to serve 

him by publication. We note, however, that this argument was not 

presented to the trial court. This 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." Andrews v. 

Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992). Moreover, Rule 4.3, Ala. 

R. Civ. P., which governs service by publication, applies only when a 

defendant avoids service and his or her present location is unknown; it 

does not apply when the plaintiff knows of the location of the defendant 

and the defendant refuses service. Rule 4(e) applies in the latter 

situation. See Chaney, supra. 

Conclusion

The record discloses that the wife and the trial-court clerk complied

with Rule 4(e) to the letter and, thereby, properly served the husband. 

Thus, we reject the husband's sole argument on appeal that "[t]he entry 

of default judgment by the trial court is void because service of process 
CL-2023-0243

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was not perfected in strict compliance with the rules of civil procedure." 

The husband's brief, p. 5. Based on the foregoing, the judgment denying 

the husband's Rule 60(b)(4) motion to set aside the default judgment is 

affirmed.

AFFIRMED.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.