source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Adam Dan HILYER v. Betti FORTIER, individually and as mother and next friend of M.M., a minor
    1140991
    Supreme Court of Alabama.
    January 6, 2017

      John W. Dodson'and Robert A. Arn-wine, Jr., of- Dodson Gregory, LLP, Birmingham, for appellant;
    Julia A. Beasley of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
   PARKER, Justice.

Adam Dan Hilyer appeals from the order of the Elmore Circuit Court (“the circuit court”), following this Court’s remand of the case, denying Hilyer’s motion filed pursuant to Rule 55(c), Ala. R. Civ. P., to set aside the default judgment entered against him and in favor of Betti Fortier, individually and as mother and next friend of M.M., a minor. For the reasons explained below, we reverse and remand.

Facts and Procedural History

This case has previously been before this Court. See Hilyer v. Fortier, 176 So.3d 809 (Ala. 2015)(“Hilyer I“). The following facts from Hilyer I are pertinent to our review:

“On the evening of July 29, 2013, Hi-lyer was backing a tractor-trailer rig used to transport logs into his private driveway on Kennedy Avenue. At the time, Hilyer was blocking both lanes of traffic on Kennedy Avenue. M.M., a minor, was driving Fortier’s van and was traveling westbound on Kennedy Avenue. B.D., M.M.’s brother; R.W., M.M.’s flaneé; and B.H., a friend of B.D.’s, were also in the vehicle with M.M. M.M.’s vehicle collided with Hilyer’s trailer, and M.M. sustained injuries.
“On October 30, 2013, Fortier, individually and as the mother and next friend of M.M., sued Hilyer, asserting claims of negligence and wantonness. In her complaint, Fortier alleged that, at the time of the accident, it was dark and that Hilyer’s tractor-trailer was blocking both lanes of travel on Kennedy Avenue, which caused M.M.’s vehicle to collide with the trailer. Fortier alleged:
“1. That Hilyer negligently and wantonly blocked both lanes of travel on Kennedy Avenue in the dark while attempting to back the tractor-trailer rig into his private driveway;
“2. That Hilyer negligently and wantonly failed to give adequate warnings to motorists approaching on Kennedy Avenue that the tractor-trailer rig was blocking both lanes of travel on Kennedy Avenue;
“3.' That Hilyer negligently and wantonly failed to have adequate and/or proper lighting on the truck and/or the trailer.
“4. That Hilyer negligently and wantonly violated certain provisions of the Alabama Rules of the Road.
“A summons and a copy of the complaint were served on Hilyer by certified mail on November 6, 2013. On January 27, 2014, Fortier filed a motion for a default judgment against Hilyer and requested a hearing on damages.
“On January 28, 2014, the trial court entered an order granting Fortier’s motion for a default judgment and stating: ‘Damages to be proven by affidavit and proposed judgment in 15 days.’ Subsequently, Fortier submitted a ‘proposed judgment,’ in which she requested that the trial court enter a judgment against Hilyer in the amount of $550,000 and ‘to find that the proposed settlement of the claim of the minor, M.M. is just, fair, reasonable, in keeping with the evidence, and is in the minor’s best interest.’ In support of her request, Fortier attached an affidavit from her counsel regarding the injuries sustained by M.M. and the expenses that had been incurred as a result of those injuries.
“On February 12, 2014, the trial court entered a judgment against Hilyer in the amount of $550,000 and found ‘that the proposed settlement of the claim of the minor, M.M. is just, fair, reasonable, in keeping with the evidence, and is in the minor’s best interest.’
“On March 7, 2014, Hilyer filed a motion to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P.[] In his motion, Hilyer addressed the requirements for setting aside a default judgment set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988). He also attached to his motion his affidavit; an affidavit from his neighbor, Wyman Earl Jackson, who witnessed the accident; an affidavit from Roberto Lozano, a claims manager for Alteris Insurance Services (‘Alteris’), which was the third-party administrator for Hilyer’s commercial-insurance policy; letters Fortier’s counsel had sent to Lozano; an affidavit from Christopher Wyatt, an employee of Crawford & Company, which Alteris had hired to investigate the accident; copies of letters Wyatt had sent to Fortier’s counsel; and a copy of a letter Fortier’s counsel had sent to Wyatt after the default judgment had been entered.”

The affidavits Hilyer attached to his Rule 55(c) motion to set aside the default judgment contain facts pertinent to our review in the present case. In Hilyer’s affidavit, Hilyer stated that he backed the tractor-trailer rig into his driveway at least twice a week for six years before the accident. He stated that his general practice in backing the tractor-trailer rig into the driveway was to drive past his driveway, stop, turn on the four-way flashers, make sure that the road was clear, and back into his driveway. According to Hilyer, the stretch of road in front of his house was never very busy, and, on most occasions, he stated, he did not see any vehicles while backing the tractor-trailer rig into his driveway.

Additionally, according to Hilyer’s affidavit, on the night of the accident, Hilyer followed his general practice of backing into his driveway. Hilyer stated that he stopped after passing his driveway and turned on the four-way flashers. He further stated that he looked in all directions and, not seeing any vehicles approaching, began backing into his driveway.

Hilyer also stated that, at some point, he saw a minivan coming toward his tractor-trailer rig. According to Hilyer, the driver of the minivan should have seen his tractor-trailer rig. Hilyer stated that there was a streetlight behind his tractor-trailer rig, that the four-way flashers were on, and that there was reflective tape running along the length of the side of the trailer. According to Hilyer, he flashed his lights to get the driver’s attention but the minivan crashed into the tractor-trailer rig. Hilyer stated that the minivan appeared to be going well over the 35 m.p.h. speed limit.

According to Hilyer, he notified his insurance agent at Ledkins Insurance Agency (“Ledkins”) of the accident on July 30, 2013, the day after the accident. Hilyer stated that, based on that conversation, it was his understanding that his insurance company was investigating the accident and would defend him if a lawsuit was filed against him.

In the affidavit filed by Hilyer’s neighbor, Wyman Earl Jackson, Jackson stated that on the night of the accident the headlights on the tractor-trailer rig were on. Jackson further stated that the hazard lights began flashing once Hilyer began backing the rig into his driveway. According to Jackson, he saw the minivan approach, and it appeared to Jackson that the minivan was going faster than the 35 m.p.h. speed limit. Jackson stated that, as the minivan approached, Hilyer flashed the headlights on the tractor-trailer rig and honked the horn. Jackson further stated that there were reflectors on the trailer.

In Roberto Lozano’s affidavit, Lozano, á claims adjuster for Alteris Insurance Services, stated that Sparta Insurance (“Sparta”) had issued Hilyer a commercial automobile policy that was in effect on the day of the accident. Lozano stated that, on July 30, 2013, Ledkins reported a claim arising out of the accident involving Hilyer and that, as a result, Lozano established a claim number for Hilyer’s claim. Lozano further stated that, on August 2, 2013, he hired Crawford & Company, a property and casualty company, to investigate the accident. • >

Lozano stated that he intended to assign responsibility for Hilyer’s claim to another Alteris adjuster and that, thinking he had done so, he did not monitor Hilyer’s claim.' Lozano stated that, because of his belief that he had assigned the ease to another Alteris adjuster, he did not read or respond to any further correspondence he received from Fortier’s counsel. According to Lozano, when the default judgment against Hilyer was brought to his attention, he realized that he had not assigned the claim to another adjuster as he had thought he had done. He stated that he then retained counsel and that “had [he] realized sooner a complaint had been filed, [he] would have immediately retained counsel to defend-Hilyer.”

The letters from Fortier’s counsel Hi-lyer attached to his Rule 55(c) motion also include facts pertinent to our review of the ruling before us. One letter, a letter-from Fortier’s counsel to Lozano dated August 8, 2013, indicates that counsel was representing Fortier with reference to the accident and requested, among other things, that future correspondence be sent to her. It is undisputed that Lozano read this letter, but the letter does not mention an intent to- file a lawsuit against- Hilyer. Another letter from Fortier’s counsel to Lo-zano, dated October 31, 2013, references a complaint filed against Hilyer in the circuit court. A third letter from Fortier’s- counsel to Lozano, dated January 2, 2014, advises Lozano, among other things, that an answer had not yet been filed on Hilyer’s behalf. On January:28, 2014, the circuit court entered the default judgment.

On March 7, 2014, the same day Hilyer filed his motion to set aside the default judgment, Hilyer filed his answer to Fortier’s complaint and asserted affirmative defenses.

“The trial court subsequently entered an order setting a hearing on Hilyer’s motion to set aside the default judgment,
“On April il, 2014, Fortier filed her opposition to Hilyer’s motion to set aside. In support of her opposition, For-tier attached her. affidavit; affidavits from M.M., B.D., and R.W.; an affidavit -from Marc McHenry, ■ an investigator with Fortier’s counsel’s law firm; copies of correspondence from Fortier’s counsel; an 'affidavit from Fortier’s counsel; and an affidavit from Shannon Rattan, the secretary for Fortier’s counsel.”

Hilyer I, 176 So.3d at 812.

The affidavits Fortier attached to her motion opposing Hilyer’s Rule 55(c) motion contain facts pertinent to our review in the present case. In M.M.’s affidavit, M.M. stated that she had slowed to 20 m.p.h. before the accident. She stated that shé never heard a horn or saw any lights, flashers,' or reflectors before the accident. In B.D.’s affidavit, B.D. stated that there were no lights on the tractor or the trailer on the night of the accident. B.D. stated that there was no warning that the tractor-trailer rig was blocking the lane in which they were traveling. In R.W.’s affidavit, R.W. stated that the reflectors on the trailer were “dirty,” R.W. also stated > that, while waiting to leave the scene of the accident, he ran his hand along the side of the trailer. According to R.W., when he ran his hand along the side of the trailer, he felt dirt, rust, and chipped paint.

In Marc McHenry’s affidavit, McHenry, an investigator for Fortier’s counsel’s law firm, stated that he spoke with Lozano on August 7, 2013. According to McHenry; he asked Lozano if he could inspect the tractor and the trailer -as soon as possible. McHenry stated that Lozano told him that he, Lozano, had authority to allow McHen-ry to see the tractor and trailer but that McHenry needed to, communicate with Christopher Wyatt, the investigator hired by Crawford,&.Company to investigate the accident. McHenry stated that he contacted Wyatt, who, in turn, stated that he would continue to try to make contact with Hilyer to coordinate McHenry’s inspection of the tractor-trailer rig. McHenry stated that he spoke to Hilyer about accessing the tractor-trailer rig; however, Hilyer apparently directed McHenry to Wyatt.

McHenry stated that, during a conversation he had with Wyaft on September 18, 2013, Wyatt stated that he had already inspected and photographed the tractor and trailer. According to McHenry, Wyatt also told him that the tractor was repaired two days after the accident. McHenry stated that he sent an e-mail to Wyatt requesting copies of the photographs of the tractor, the trailer, and the parts that were removed but that he never received a response.

Finally, in her affidavit, Fortier’s counsel stated that she telephoned Lozano to see if an answer would be filed on Hilyer’s behalf. Fortier’s counsel stated that Loza-no did not answer ,the call and that she left him a voicemail. It is unclear as to when Fortier’s counsel made the telephone call, and Fortier’s counsel does not describe the contents of the voiQemail.

“On April 16, 2014, .the trial court entered an order stating that the hearing on the motion to set aside had been held and that- the issue remained under advisement. The record does not include a transcript of the hearing.
“On May 13, 2014, Hilyer filed a supplement to his motion to set aside the default judgment, in which he submitted an affidavit from Scott Kramer, a member. of the Coosada Volunteer Fire Department (‘the CVFD’), who was the on-scene supervisor for the accident,”

Hilyer I, 176 So.3d at 812.

Scott Kramer stated that he-drove a fire engine from the station to' the scene of the accident; that he was traveling north on Kennedy Avenue and approached the accident scene from the south;, that, in the area just south of the accident, Kennedy Avenue curves from west to north; that, when he entered the curve, he could see across his right to the area where the curve ended; that he could see the lights of Hilyer’s tractor-trailer rig and the lights of a police vehicle at the.accident scene; that he could clearly see the running lights and headlights of the tractor-trailer rig; that the hazard lights on the tractor-trailer rig were flashing; and that the tractor-trailer rig and the police vehicle were approximately one-quarter of a mile away when he first saw them. He further stated that, when he arrived at the scene, M.M.’s vehicle was on fire; that the tractor-trailer rig was parked in the road and its running lights were on; that he looked at the running lights to maneuver the fire engine between the police vehicle and the tractor-trailer rig; that he did not see anything that night to explain why M.M. would not have seen the tractor-trailer rig; and that anyone traveling the 36 m.p.h. speed limit would have had ample time to avoid a collision. Finally,'Kramer stated that he lived in Coosada; that he was familiar with traffic on Kennedy Avenue; that Kennedy Avenue was not a heavily traveled road; that’he had previously seen Hilyer backing his tractor-trailer rig into his driveway; and that it never took Hilyer very long to get his tractor-trailer rig out of the road.

“On May 21, 2014, Fortier .filed a reply to Hilyer’s supplement to his motion to set aside the default judgment and a motion to strike Kramer’s affidavit.!] Hilyer’s motion to set aside the default judgment was denied by operation of law on June 5, 2014. Hilyer appealed.”

Hilyer I, 176 So.3d at 812.

On appeal in Hilyer I, this Court considered whether Hilyer’s Rule 55(c) motion had properly alleged the three factors set out in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988). 176 So.3d at 814. We held both that Hilyer’s Rule 55(c) motion met the threshold showing of each of the three Kirtland factors and that those factors were not considered in the denial by operation of law of Hilyer’s Rule 55(c) motion. 176 So.3d at 820-21. Therefore, we reversed the denial of Hilyer’s Rule 55(c) motion and remanded the case with instructions for the circuit court to consider the three Kirtland factors in determining whether to grant or to deny Hilyer’s Rule 55(c) motion. 176 So.3d at 820-21. We noted:

“ ‘ “[0]ur mandate in this case ‘is not to be construed to mean that the trial court must set aside the default judgment, [but] only that the trial court must apply the Kirtland factors in deciding whether to set aside the default judgment.’ ” Richardson v. Integrity Bible Church, Inc., 897 So.2d 345, 349 (Ala. Civ. App. 2004), quoting White v. Westmoreland, 680 So.2d 348, 349 (Ala. Civ. App. 1996).’ [D.B. v. D.G.] 141 So.3d [1066,] 1072 [ (Ala. Civ. App. 2013) ].”

176 So.3d at 821.

On May 27, 2015, the circuit court held a hearing on" Hilyer’s Rule 55(c) motion. No new evidence was offered. Following the hearing, the circuit court entered the following order:

“This case coming on before this Court upon the remand from the appellate court for this Court to consider the Kirtland factors in whether the default judgment that is entered in this cause should be set aside. The parties appearing and submitting only evidence through pleading and no new evidence being presented on the date of this hearing through testimony. Only argument being presented, this Court finds as follows:
“This Court hearing the argument and reviewing the pleadings as to the 1. Meritorious defense of the Defendant, 2. The plaintiff unfair prejudice and 3. [WJhether the default was a product of the Defendant’s own conduct, with the idea that all three factors must be shown for the Kirtland analysis to be applied.
“Parties stating through counsel that Agent Lazono [sic] received the correspondence from [Fortier], received phone calls and text messages along with letters that he placed in the claim file but mistakenly thought he had assigned the claim to another. Agent Lazo-no [sic] failed to respond to letters asking if he was going to respond. [Fortier] making direct contact with the adjuster for the carrier but was unable to get the carrier to arrange for [Fortier] to review the vehicle of [Hilyer], even though the same was in [Hilyer’s] possession. Lazo-no [sic] knew the suit was pending.
“This Court finds that Lazono [sic], the employee of the carrier, exhibited ‘intentional non-responsiveness.’
“Upon review of the Kirtland factors, this Court finds that the default judgment entered herein should remain. Motion to set aside is denied. DONE this 27th Day of May 2015.”
Hilyer appealed.

Standard of Review

“In reviewing a trial court’s denial of a motion to set aide a default judgment, this Court has stated:

“ ‘A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988). In reviewing an appeal from a trial court’s order refusing to set aside a default judgment, this Court must determine whether in refusing to set aside the default judgment the trial court exceeded its discretion. 524 So.2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits. 524 So.2d at 604. These interests must be balanced under the two-step process- established in Kirtland.
“‘We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala. 1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: “1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.” 524 So.2d at 605.’
“Zeller v. Bailey, 950 So.2d 1149, 1152-53 (Ala. 2006).”

Manci v. Ball, Koons & Watson, 995 So.2d 161, 165 (Ala. 2008).

Discussion

Hilyer argues that the circuit court exceeded its discretion when it denied his Rule 55(c) motion because, he argues, each of the three Kirtland factors weigh in favor of granting the motion.

A. Whether the Defendant Has a Meritorious Defense

Concerning whether the defendant has alleged a meritorious defense under Kirt-land, this Court has stated:

“To present a meritorious defense, for Rule 55(c) purposes, does not require that the movant satisfy the trial court that, the movant would necessarily prevail at a trial on the merits, only that the movant show the court that the movant is prepared to present a plausible defense. Kirtland, 524 So.2d at 605.
‘“The defense proffered by the defaulting party must be of such merit as to induce the trial court reasonably to infer that allowing the defense to be' litigated could foreseeably alter the outcome of the case. To be more precise, a defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means-to warrant submission of the case to the jury.
‘“The allegations set forth in the answer and in the motion must be more than mere bare legal conclusions without factual support; they must counter the cause of action averred in the complaint with specificity—namely, by setting forth relevant legal grounds substantiated by a credible factual basis. Such allegations would constitute a “plausible defense.” ’
“Kirtland, 524 So.2d at 606.”

Sampson v. Cansler, 726 So.2d 632, 634 (Ala. 1998).

In her complaint, Fortier alleged negligence and wantonness claims against Hi-lyer. As set out above, we summarized Fortier’s claims against Hilyer in Hilyer I as follows:

“1. That Hilyer negligently and wantonly blocked both lanes of travel on Kennedy Avenue in the dark while attempting to back the tractor-trailer rig into his private driveway;
“2. That Hilyer negligently and wantonly failed to give adequate warnings to motorists approaching on Kennedy Avenue that the tractor-trailer rig' was blocking both lanes of travel on Kennedy Avenue;
“3. That Hilyer negligently and wantonly failed to have adequate and/or proper lighting on the truck and/or the trailer.
“4. That Hilyer negligently and wantonly violated certain provisions of the Alabama Rules of the Road.”

176 So.3d at 811.

We first address whether, for Rule 55(c) purposes, Hilyer presented a meritorious defense to Fortier’s claims that Hilyer negligently and wantonly failed to give adequate warnings and that Hilyer negligently and wantonly failed to have adequate and/or proper lighting on the tractor-trailer rig.

In Lemley v. Wilson, 178 So.3d 834 (Ala. 2015), this Court set out the elements a plaintiff must prove to establish negligence and wantonness:

“ ‘To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate .causation; and (4) damage or injury. Albert v. Hsu, 602 So.2d 895, 897 (Ala. 1992). To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains. Smith v. Davis, 599 So.2d 586 (Ala. 1992).’ ”

Lemley, 178 So.3d at 841-42 (quoting Martin v. Arnold, 643 So.2d 564, 567 (Ala. 1994)) (emphasis omitted).

In the past, this Court has held that a defendant presents a meritorious defense under the first Kirtland factor when he or she provides affidavit testimony that directly disputes the circumstances described in the plaintiffs complaint. See, e.g., Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 901 (Ala. 2005)(holding that the defendant had presented a “plausible defense” under the first Kirtland factor because “[t]he affidavit of [the defendant] directly disputes the circumstances described by the [plaintiffs] in their complaint concerning the March 17, 2002, incident and, if believed by the fact-finder, would completely undermine the theories of liability asserted by the [plaintiffs]”); Summit Photographix, Inc. v. Scott, 763 So.2d 956, 960 (Ala. 2000) (“Through [the witness’s) affidavit, [the defendant] has specifically refuted [the plaintiffs] claims; therefore, [the defendant] has made a showing that it could present a meritorious defense. See Kirtland, 624 So.2d at 605-06.”).

In Hilyer’s Rule 55(c) motion, Hilyer provided the affidavit testimony of his neighbor, Jackson. Jackson specifically stated that the lights on Hilyer’s tractor-trailer rig were on and visible and that Hilyer honked the horn before the accident, Additionally, Hilyer provided his own affidavit testimony in which he stated that the headlights and four-way flashers of his tractor were on when he was backing into his driveway, Hilyer also stated that he flashed his lights when it was evident to him that the minivan driven by M.M. was not going to stop. Thus, the facts alleged in the affidavit testimony provided by Hilyer in his Rule 55(c) motion, if true, directly contradict the factual basis for both Fortier’s claim that Hilyer negligently and. wantonly failed to give adequate warnings and Fortier’s claim that Hilyer negligently and wantonly failed to have adequate and/or proper lighting on the tractor-trailer rig. Therefore, Hilyer has' presented a meritorious defense, for Rule 56(c) purposes, to those claims. ,

We next address whether Hilyer has presented a meritorious defense, for Rule 55(c) purposes, to Fortier’s claim that “Hilyer negligently and wantonly blocked both lanes of travel on Kennedy Avenue in the dark while attempting to back the tractor-trailer rig into his private driveway” and to Fortier’s claim that “Hilyer negligently and wantonly violated certain provisions of the Alabam'a Rules of the Road.”

“ ‘Contributory negligence is an affirmative and complete defense to a claim based, on negligence. In order to establish contributory, negligence, the defendant bears the burden of proving that the plaintiff 1) had knowledge of the dangerous condition; .2) had an appreciation of the danger under the surrounding circumstances;, and 3) failed to exercise reasonable care, by placing himself in the way of danger.’
“Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 606 (Ala. 1998).”

Norfolk S. Ry. v. Johnson, 75 So.3d 624, 639 (Ala. 2011).

It is undisputed that Hilyer blocked both lanes of travel while backing his tractor-trailer rig into his private driveway; however, in his Rule 55(c) motion to set aside the default judgment, Hilyer alleged that the collision was the result of contributory negligence on M.M.’s part. Specifically, Hilyer alleged that the accident was the result of M.M.’s.failure to keep a proper lookout and M.M.’s excessive speed. Hilyer supported his allegation that M.M. was contributorily negligent with affidavit testimony of himself, Jackson, and Kramer.

In Hilyer’s affidavit, Hilyer stated that there was a streetlight behind his tractor-trailer rig. He stated that his trailer had reflective tape and that the tractor’s four-way flashers were on. He alleged that M.M. should have seen his tractor-trailer rig.

In Jackson’s affidavit, Jackson stated that the minivan appeared to be speeding. Jackson also stated that Hilyer flashed the lights on the tractor-trailer rig and honked the horn when M.M.’s vehicle approached the tractor-trailer rig. And Jackson stated that the tractor’s hazard lights were flashing before M.M.’s vehicle hit Hilyer’s tractor-trailer rig.

In Kramer’s affidavit, Kramer stated that he did not see anything that night to explain why M.M. would not have seen the tractor-trailer rig and that anyone traveling the 35 m.p.h. speed limit would have had ample time to avoid an accident. Kramer also stated that the hazard lights of the tractor were on when he arrived at the scene.

Accordingly, Hilyer’s motion to set aside the default judgment alleged facts that, if true, would permit a jury to conclude that M.M. was contributorily negligent. As a result, Hilyer presented a meritorious defense, for Rule 55(c) purposes, to Fortier’s claims that he negligently blocked both lanes of travel and that he negligently violated certain provisions of the Alabama Rules of the Road.

Of course, contributory negligence “is not a bar to a wantonness claim.” Tyler v. City of Enterprise, 577 So.2d 876, 878 (Ala. 1991). Thus, we must now determine whether Hilyer presented a meritorious defense, for Rule 55(c) purposes, to Fortier’s claims that Hilyer wantonly blocked both lanes of travel and that Hi-lyer wantonly violated certain provisions of the Alabama Rules of the Road. As set out above, to establish wantonness, the plaintiff must prove, in part, that the defendant acted with reckless indifference to the consequences.

“ ‘Reckless’ is defined as ‘careless, heedless, inattentive; indifferent to consequences,’ Black’s Law Dictionary 1270 (6th ed. 1990); ‘marked by lack of proper caution: careless of consequence,’ Webster’s New Collegiate Dictionary 957 (1981); ‘having no regard for consequences; uncontrolled; wild.’ The American Heritage Dictionary of the English Language 1088 (1969); see Harrison v. State, 37 Ala. 154 (1861).”

Berry v. Fife, 590 So.2d 884, 885 (Ala. 1991).

In his Rule 55(c) motion, Hilyer provided affidavit testimony concerning the alleged precautions he took to avoid an accident while backing his tractor-trailer rig into his driveway. Those alleged precautions include activation of the tractor’s four-way flashers; reflective tape; and flashing the lights and honking the horn at the oncoming minivan driven by M.M. Those precautions, if in place, plausibly refute Fortier’s claim that Hilyer acted with “reckless indifference” to the risk of an accident. Accordingly, for Rule 55(c) purposes, Hilyer has presented a meritorious defense to Fortier’s allegation that he wantonly blocked both lanes of travel and wantonly violated certain provisions of the Alabama Rules of the Road.

Because Hilyer has, for Rule 55(c) purposes, presented a meritorious defense to each of the claims set out in Fortier’s complaint, the first Kirtland factor weighs in favor of setting aside the default judgment.

B. Whether the Plaintiff Will Suffer Substantial Prejudice

Concerning the second Kirtland factor, whether a plaintiff will suffer substantial prejudice, this Court has said:

“The second factor that a tidal court must consider in ruling on a motion to set aside a default judgment is whether the plaintiff will be unfairly prejudiced if it grants the motion. Kirtland, 524 So.2d at 606-07. This prejudice cannot take the form of mere delay or increased costs, because those can be remedied by imposing additional costs on the defendant if the plaintiff later prevails. 524 So.2d at 607. Rather, the prejudice must be substantial, facilitating fraud or collusion, resulting in the loss of evidence, or hindering discovery. 524 So.2d at 607.
“Although common sense dictates that a plaintiff is usually in a far better position to know what prejudice might befall him from the delay, and more importantly how substantial that prejudice would be, we have placed upon the defendant the initial burden of demonstrating that the plaintiff will not be substantially prejudiced. As we have stated:
“ ‘We hold that when a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the plaintiff will not be unfairly prejudiced if the default judgment is set aside. If the movant makes a pri-ma facie showing that the plaintiff will not be unfairly prejudiced, the burden then shifts to the plaintiff to present facts showing that the plaintiff will be unfairly prejudiced if the default judgment is set aside.’
“Phillips v. Randolph, 828 So.2d 269, 278 (Ala. 2002). Additionally, a defendant cannot simply state that the plaintiff will not be prejudiced if the motion to set aside the default judgment is granted. Phillips, 828 So.2d at 275.”

Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So.2d 802, 811 (Ala. 2004).

In the present case, Hilyer did more than simply state that Fortier would not be prejudiced if the motion to set aside was granted. As this Court explained in Hilyer I:

“In his motion to set aside, Hilyer asserted that Fortier would not be prejudiced by setting aside the default judgment because:
“‘This accident occurred less than eight months ago. Hilyer and Jackson are both Coosada residents and are available for deposition. All of the vehicles involved in the accident are still available for inspection, Hilyer still drives the tractor, and his father owns the trailer. M.M.’s medical care is documented in her hospital records. It is believed the minivan is currently being held at Coosada Towing. But, even if this is not the case, [Fortier’s] counsel had an investigator investigating this accident fairly soon after it occurred, and he likely was able to photograph and inspect the minivan .... While [Fortier’s] counsel has been inconvenienced by the delay in answering the complaint, she has not expended any significant time or expense in obtaining the default judgment. M.M. has not been required to attend any hearings or proceedings in obtaining the default judgment.’ ”

176 So.3d at 817. Accordingly, Hilyer has met his initial burden of making a prima facie showing that Fortier will not be unfairly prejudiced if the default judgment is set aside.

In response, Fortier argues that she will suffer substantial prejudice if the default judgment is set aside, because, she argues, evidence has been lost or destroyed. Spe-cifícally, Fortier alleges that because she was denied access to evidence and because the evidence was not properly preserved she will never have physical evidence of the condition of Hilyer’s tractor-trailer rig as it was on the day of the accident. “[A]s a result,” Fortier asserts, she “has forever lost access to critical’ evidence that would have conclusively established Hilyer’s negligence and wantonness and that would have defeated Hilyer’s claim of contributory negligence.” Fortier’s brief, at p, 39.

The basis of Fortier’s allegation that physical evidence of the tractor-trailer rig is “forever lost” is Wyatt’s statement to McHenry that the tractor-trailer rig was repaired two days after the accident. After Fortier made a similar'argument in Hilyer I, this Court stated:

“Fortier’s argument in this regard and the affidavits she submitted in support of her opposition.do not establish that the delay caused by setting aside the default .judgment will result in the loss or destruction of evidence. At best, the evidence before this Court establishes that any loss of evidence occurred two, days after the accident and well before any action had been filed in this case,”

176 So.3d at 818. That is, the default judgment, notwithstanding, Fortier would still be required to prove her case in light of the “lost access” to evidence, allegedly caused by Hilyer’s repairs to the tractor-trailer rig. Thus, Fortier’s argument that setting aside the default judgment will cause substantial prejudice because physical evidence would be- lost is unpersuasive.

•Next, Fortier argues that she would suffer substantial prejudice if the default judgment is set aside because, she says, discovery of the condition of the trailer and of any repairs to it have been hindered or “made impossible.” Fortier’s brief, at p, 41. Fortier argues that, although the repairs to the tractor-trailer rig took place before Hilyer’s answer was due, the ensuing years after the accident have rendered discovery on the repairs and condition of the trailer impossible.

Pursuant to Phillips v. Randolph, 828 So.2d 269 (Ala. 2002), at this stage of the Kirtland analysis, Fortier bears the burden of presenting facts showing that she will be unfairly prejudiced if the default judgment is set aside. “We have held that mere allegations and conclusory statements do not constitute sufficient evidence to establish facts. See Hall v. Chrysler Corp., 553 So.2d 98, 100 (Ala. 1989).” Ex parte Gilliam, 720 So.2d 902, 906 (Ala. 1998). In her brief before this Court, Fortier merely alleges that discovery as to the repairs to the tractor-trailer rig following the accident'is impossible; she does not direct this Court to any facts "to support that allegation. For example, Fortier has not provided any facts indicating that records of the repairs do not exist or that she attempted to obtain records of those repairs but was prevented from doing so. Accordingly, Fortier’s conclusory allegations at this point in the proceedings do not establish that discovery of the repairs to the tractor-trailer rig is impossible. Consequently, Fortier has not presented facts showing that she would be unfairly prejudiced if Hilyer’s motion to set aside the default judgment was granted because discovery of the repairs to the tractor-trailer rig would be hindered.

Fortier also alleges that setting aside the default judgment will hinder discovery she would have' been able to pursue because, Fortier argues, if Hilyer had timely answered her initial complaint, she could have inspected the tractor-trailer rig to determine whether lights and reflective tape were present and/or working properly and could have reconstructed the accident. Fortier has not alleged any facts indicating that access to the tractor-trailer rig would be hindered if the motion to set aside the default judgment was granted. Additionally, Fortier does not present facts indicating that the tractor-trailer rig is currently unavailable for inspection.

Furthermore, we note that there is nothing to suggest that relevaht witnesses who can testify to the condition of the tractor-trailer rig at the time of the accident, such as R.W., are not available. Additionally, according to McHenry’s affidavit, the investigator hired by Hilyer took photographs of the tractor-trailer rig following the accident. Fortier does not direct this Court to any facts indicating that those photographs do not exist or that, if the photographs do exist, Fortier attempted to obtain those photographs but was prevented from doing so.

Accordingly, for Rule 55(c) purposes, sufficient facts have not been presented demonstrating that Fortier would suffer substantial prejudice if' the default judgment were to be set aside. Thus, the second Kirtland factor weighs in favor of setting aside the default judgment.

C. Lack of Culpable Conduct on the Fart of the Defaulting Party

The third Kirtland factor requires a circuit court to examine the conduct of the defaulting party. Concerning the third Kirtland factor, this Court has stated:

“To warrant a refusal to set aside a default judgment, the defaulting party’s actions that resulted in the entry of the default judgment must constitute willful conduct or conduct committed in bad faith. Negligence alone is not sufficient. Bad faith or willfulness is identified by ‘incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness.’ Kirtland, 524 So.2d at 608 (citing Agio Indus., Inc. v. Delta Oil Co., 485 So.2d 340, 342 (Ala. Civ. App. 1986)), A trial court’s finding with respect to the culpability of the defaulting party is subject to great deference. Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610, 616 (Ala. 1988).”

Zeller v. Bailey, 950 So.2d 1149, 1154 (Ala. 2006).

In the present case, the circuit court found that Lozano, an employee of Hilyer’s insurance carrier, exhibited “intentional nonresponsiveness.” As set out above, “intentional n.onresponsiveness” may constitute the bad faith or willfulness necessary to warrant a finding of culpable conduct under the third Kirtland factor. See Zeller, supra. The circuit court did not make any findings concerning the conduct of any party other than Lozano. Thus, it appears that the circuit court implicitly found that, based solely on Lozano’s conduct, the third Kirtland factor—the culpability of the defaulting party—weighed in favor of denying Hilyer’s Rule 55(c) motion.

On appeal, Hilyer argues that the circuit court’s finding that Lozano exhibited intentional nonresponsiveness under the third Kirtland factor is not substantiated by the record. As set out above, the circuit court’s judgment states that it “[heard] argument and [reviewed] the pleadings” as to the three Kirtland factors. The circuit court then states:

“Parties stating through counsel that Agent Lazono [sic] received the correspondence from [Fortier], received phone calls and text messages along with letters that he placed in the claim file but mistakenly thought he had assigned the claim to another. Agent Lazo-no [sic] failed to respond to letters asking if he was going to respond. [Fortier] making direct contact with the adjuster for the carrier but was unable to get the carrier to arrange for [Fortier] to review the vehicle of [Hilyer], even though the same was in [Hilyer’s] possession. Lazo-no [sic] knew the suit was pending.
“This Court finds that Lazono [sic], the employee of the carrier exhibited ‘intentional non-responsiveness.’ ”

There are no facts in the record indicating that Lozano received text messages. There are also no facts in the record indicating that Lozano received multiple telephone calls from Fortier’s counsel; instead, the record reflects that Fortier’s counsel telephoned Lozano once and left a voicemail message. There are no facts in the record concerning the contents of that voicemail. Additionally, there are no facts in the record indicating that Lozano placed letters from Fortier in Hilyer’s “claim file.”

Furthermore, the undisputed facts in the parties’ pleadings do not support the circuit court’s finding that Lozano “knew the suit was pending” against Hilyer. It is undisputed that two of the three letters Fortier’s counsel sent to Lozano, if read, would have been sufficient to put Lozano on notice both that Fortier had filed suit against Hilyer and that an answer had not been filed on Hilyer’s behalf. But it is also undisputed that Lozano did not read or respond to the relevant correspondence from Fortier’s attorney because Lozano believed that he had assigned Hilyer’s insurance claim to another adjuster. Given the undisputed evidence that had been submitted to the circuit court indicating that Lozano did not know the suit against Hilyer was pending, we hold the circuit court’s finding that “Lazono [sic] knew the suit was pending” is not substantiated by the record before this Court.

Next, we examine the circuit court’s finding that Fortier made contact with Lo-zano ■ but was unable to get Lozano to arrange a viewing of the tractor-trailer rig. According to McHenry, the investigator for Fortier’s counsel, he telephoned Loza-no about accessing the tractor-trailer rig. Lozano answered McHenry’s call and told McHenry that Lozano had authority to allow McHenry to see the tractor-trailer rig but that McHenry needed to coordinate the viewing with Wyatt. The remainder of McHenry’s attempts to inspect the tractor-trailer rig were based on McHenry’s attempts to contact Wyatt or Hilyer. There are no facts suggesting that McHenry attempted to contact Lozano after Lozano initially responded and referred McHenry to Wyatt or that Lozano took any action to avoid responding to McHenry. Thus, contrary to the circuit court’s order, there is no evidence indicating that Fortier was unable to get Lozano to arrange for Fortier to view the tractor-trailer rig.

Instead, the undisputed facts presented in the record before us demonstrate that Lozano’s conduct, although negligent, was not intentionally nonresponsive.

“Reasonable explanations for defaults, such as attorney neglect (Ex parte Illinois Central Gulf R.R., [514 So.2d 1283, 1288 (Ala. 1987) ]) and liability insurance company neglect (Lee v. Martin, 533 So.2d 185 (Ala. 1988), attributable to innocent inadvertence, militate in favor of a finding of an absence of culpability and provide a basis for setting aside a default judgment. Kirtland, 524 So.2d at 607-08.”

Sanders v. Weaver, 583 So.2d 1326, 1329 (Ala. 1991). In Sanders, the defendant forwarded the plaintiffs summons and complaint to its insurance carrier the day it was received. 583 So.2d at 1328. The insurance-claims adjuster handling the claim was away from the office for several weeks, and the summons and complaint were placed on the adjuster’s desk. 583 So.2d at 1329. The adjuster, who was experiencing personal difficulties and whose department was being reorganized, did not find the summons and the complaint until' after the default judgment had been entered. Id. In reviewing the trial court’s decision to deny the defendant’s motion to set aside the default judgment on appeal, we held that the default was attributable, not to wilful disregard of court rules, but to negligence, and we reversed the circuit court’s decision. Id.

In this case, Lozano believed—mistakenly, it appears—that Hilyer’s claim was being handled by another claims adjuster. Lozano claims that, based on that mistaken belief, he did not respond to Fortier’s counsel or retain counsel to defend Hilyer. Additionally, after the default judgment was entered, Lozano promptly retained counsel for Hilyer, who filed an answer to Fortier’s complaint and a motion to set aside the default judgment within 30 days of the entry of the default judgment. Finally, Lozano responded to McHenry’s request to examine the tractor-trailer rig by referring McHenry to Wyatt. Pursuant to Sanders, Lozano’s conduct constitutes, at most, insurance-carrier neglect and “militate[s] in favor of finding an absence of culpability.” 583 So.2d at 1329.

As set out above, the circuit court’s implicit finding that the third Kirtland factor weighed in favor of denying Hilyer’s Rule 55(c) motion was based solely on Lozano’s conduct; however, Fortier argues that Hi-lyer’s conduct in failing to file an answer to the complaint after receiving service was, itself, sufficient to constitute culpable conduct under the third Kirtland factor. We address Fortier’s argument out of an abundance of caution and because this Court can affirm a trial court’s judgment for any reason, even one not relied upon by the trial court. Bank of the Southeast v. Koslin, 380 So.2d 826, 830 (Ala. 1980) (“It is a settled principle that if the ultimate decision of a trial court is correct, that judgment will be upheld on appeal even though the trial court gave a wrong or insufficient reason therefor. City of Birmingham v. Community Fire District, 336 So.2d 502 (Ala. 1976).”).

In support of her argument that Hilyer’s conduct in failing to file an answer to the complaint after receiving service was sufficient to constitute culpable conduct under the third Kirtland factor, Fortier relies on this Court’s decision in Phillips v. Randolph, 828 So.2d 269 (Ala. 2002). In Randolph, the defendant did not file an answer to the plaintiffs complaint, despite receiving service of process. The trial court entered a default judgment on behalf of the plaintiff and, thereafter, denied the defendant’s motion to set aside the default judgment. On appeal from the trial court’s denial of the defendant’s motion to set aside the default judgment, this Court held that the trial court did not exceed its discretion in refusing to set aside the , default judgment based on its determination of the defendant’s culpability. We relied, in part, on reasoning from DaLee v. Crosby Lumber Co., 561 So.2d 1086, 1091 (Ala. 1990):

“““A party who ignores a summons and, without good excuse, neglects to make his defense at the proper time has no standing in any court when .he seeks to avoid the resulting judgment or decree. Read v. Walker, 18 Ala. 323, 333 [(1850)].’ Boothe v. Shaw, 214 Ala. 552, 108 So. 563, 564 [ (1926) ].” ’
“[DaLee v. Crosby Lumber Co.,] 561 So.2d [1086,] 1091 [ (Ala. 1990) ].
“The Court, in DaLee, quoting McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So.2d 499, 503 (1946), further stated:
“‘“It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has-exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business, his motion to set aside a judgment for default should be denied.” ’
561 So.2d at 1091.”

828 So.2d at 279.

First, there is reason to question the proposition, which Fortier derives from Randolph, that a defendant’s failure to file an answer after receiving service, without more, constitutes culpable conduct under the third Kirtland factor. See Ex parte Family Dollar Stores of Alabama, Inc, supra; Sampson v. Cansler, supra. In Ex parte Family Dollar Stores of Alabama, which this Court decided three years after Randolph, it was undisputed that the defendants received personal service of the plaintiffs complaint but did’ not answer or otherwise defend against it. 906 So.2d at 894. The circuit court entered a default judgment against the defendants and thereafter denied the defendants’ motion to set aside the default judgment, in which the defendants acknowledged that they “‘negligently failed to protect their interest and to inquire’ as. to the status of the case.’ ” ‘906 So.2d at 902. This Court, however, reversed the circuit court’s decision denying the - defendants’ motion to set aside the default judgment. Concerning the third Kirtland factor, we reasoned that

“the materials' submitted by the parties in this case contain no facts suggesting that the [defendants] acted willfully or in bad faith in omitting to respond to the complaint served upon them; to the eon-trary, although they were clearly initially negligent, they exhibited no intentional nonresponsiveness and they acted in a timely fashion once they became aware of the default judgment.’-’ ,.

906 So.2d at 903. Thus, Ex parte Family Dollar Stores, decided three years after Randolph, does not support the proposition that a defendant’s failure to file an answer to a complaint after receiving service, without more, constitutes culpable conduct under the third Kirtland factor.

Second, Fortier’s reliance on Randolph is misplaced. Randolph supports the proposition that a defendant’s failure to file an answer after receiving service may be culpable conduct but only when the defendant has no “good excuse.” See Randolph, 828 So.2d at 279 (“ ‘ “ ‘A party who ignores a summons and, without good excuse, neglects to make his defense at the proper time has no standing in any court when he seeks to avoid the resulting judgment or decree. Read v. Walker, 18 Ala. 323, 333 [ (1850) ].’ Boothe v. Shaw, 214 Ala. 552, 108 So. 563, 564 [(1926)].”’’’(emphasis added)). In the past, this Court has held that a defendant’s reasonable reliance on a third party to provide its defense militates against a finding of culpability when determining whether to deny a motion to set aside a default judgment. See, e.g. Sampson v. Cansler, supra; Lightner Investigators, Inc. v. Goodwin, 447 So.2d 679 (Ala. 1984); see also Appalachian Stove & Fabricators, Inc. v. Roberts, 544 So.2d 893, 896 (Ala. 1989)(“If [the defendant] had taken the summons and complaint and the letters from plaintiffs’ counsel to its proper insurance carrier, as did -the appellant in Lee [v. Martin, 533 So.2d 185 (Ala. 1988) ], it would have done all that it was required to do and it could have reasonably and correctly assumed that the insurance carrier had properly defended it as required.”(emphasis added)).

In Goodwin, Lightner Investigators, Inc. (“Lightner”), and Chrysler Credit Corporation (“Chrysler”) were sued after Light-ner repossessed a vehicle on behalf of Chrysler. 447 So.2d at 680. Later, an employee from Chrysler represented to an employee from Lightner that Chrysler’s lawyer “would handle the whole matter.” Id. Chrysler’s attorney did not represent Lightner, however, and a default judgment was entered against Lightner. 447 So.2d at 681. Lightner filed a motion to set aside the default judgment, which the trial court denied. Id. On appeal, this Court reversed the trial court’s order denying the motion to set aside the default judgment, reasoning, in part, that it was reasonable for Lightner to rely on the representations made by the Chrysler employee that Chrysler would provide it with a defense. Id.

In Cansler, the estate of Neil Cansler sued Jesse Sampson and Terence Sampson, among others, after Cansler was struck and killed by an automobile. 726 So.2d at 632. Both Jesse and Terence received service of process, and both men contacted the same attorney to represent them. 726 So.2d at 633. The attorney, however, never made a formal appearance. Id. The trial court entered a default judgment against Jesse and Terence and denied their subsequent motion to set aside the default judgment. Id. On appeal, this Court reversed the trial court’s decision denying the motion to set aside the default judgment. 726 So.2d at 632. This Court reasoned, in part, that Jesse and Terence’s actions in failing to protect their interest and to inquire as to the status of their case constituted negligence, but “the record contains no evidence indicating that [Jesse and Terence’s] negligent actions were undertaken in bad faith or willfully.” 726 So.2dat635.

In the present case, it is undisputed that Hilyer had notice of Fortier’s complaint against him. It is also undisputed that Hilyer did not hire an attorney or attempt to • file an answer to Fortier’s complaint until after the default judgment'was entered against him. But Hilyer believed, based on his conversation with an insurance agent at Ledkins, that he would be provided with a defense. Furthermore, there are no facts before this Court indicating that Hilyer’s reliance on Ledkins to provide him with a defense was unreasonable. See, e.g., Zeller v. Bailey, 950 So.2d at 1154 (holding that defendant’s reliance on third party to provide a defense was “patently unreasonable in light of the trial court’s repeated efforts, after [the defendant’s] attorney had withdrawn, to give [the defendant] notice of the various stages of the proceedings by mail at his residence”). Accordingly, although not addressed by the circuit court, we conclude that, for Rule 55(c) purposes, Hilyer’s conduct in failing to file an answer to Fortier’s complaint after receiving service, in light of his reasonable reliance on his belief that Ledkins would provide him with a defense, .was not culpable conduct under the third Kirtland factor. Thus, we conclude that .the third Kirtland factor, weighs in favor of setting aside the default judgment.

Accordingly, we conclude that, under the particular circumstances of this case, all three Kirtland factors weigh in favor of setting aside the default judgment. Therefore, we hold that the circuit court exceeded its discretion in denying Hilyer’s Rule 55(c) motion to set aside the default judgment. See Ex parte Family Dollar Stores, 906 So.2d at 903 (“Each of the Kirtland factors, when applied to the particular circumstances of this case, weigh in favor of setting aside the interlocutory default judgment. ... Given all of the particular circumstances of this case, we conclude that the trial court exceeded its discretion in declining to set aside the interlocutory default judgment.”); Summit Photographix, Inc. v. Scott, 763 So.2d at 961 (“Utilizing the test set out in Kirtland, we hold that the trial court [exceeded] its discretion in not setting aside the default judgment”).

In the remainder of his brief on appeal, Hilyer argues that the circuit court exceeded its discretion because, he argues, the circuit court failed to hold a hearing to determine whether the default judgment was in the best interests of M.M., a minor, and because the circuit court did not hold a postjudgment hearing to determine whether its judgment was excessive. Because we hold that the circuit court exceeded its discretion in denying Hilyer’s Rule 65(c) motion, we pretermit discussion of those arguments.

Conclusion

The circuit court exceeded its discretion in denying Hilyer’s Rule 55(c) motion to set aside the default judgment because all three Kirtland factors weigh in favor of setting aside the default judgment. Even if Lozano’s conduct constituted culpable conduct under the third Kirtland factor, the circuit court nonetheless exceeded its discretion in denying Hilyer’s Rule 55(c) motion to set aside the default judgment based on the facts of this case. Accordingly, we reverse the circuit court’s order denying Hilyer’s Rule 55(c) motion to set aside the default judgment and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, Bolin, Wise, and Bryan, JJ., concur.

Murdock, J., concurs in the result.

Main, J., dissents.

Shaw, J., recuses himself.

      . Rule 55(c), Ala. R. Civ. P., provides:
      “(c) Setting Aside Default. In its discretion, the court may set aside an entry of default at any tíme before judgment. The court may on its own motion set aside a judgment by default within thirty (30) days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment.”

      . In Fortier’s motion to strike, filed pursuant to Rule 6, Ala. R. Civ. P., Fortier argued that the circuit court should not consider Kramer’s" affidavit because it was not timely filed. We noted in Hilyer I, however, that the circuit court did not rule on Kramer’s motion. 176 So.3d at 816 n.1. We held that because Rule 6 allowed for the possibility that the circuit court could have considered Kramer’s affidavit, we would consider Kramer’s affidavit in our review. Id.

      . In Kirtland, we held that a trial court’s broad discretionary authority to set aside a default judgment under Rule 55(c) should not be exercised without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct. 524 So.2d at 605. " ' "However, in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the party filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors.” ’ " Hilyer I, 176 So.3d at 813-14 (quoting D.B. v. D.G., 141 So.3d 1066, 1070-71 (Ala. Civ. App. 2013), quoting in turn Brantley v. Glover, 84 So.3d 77, 81 (Ala. Civ. App. 2011)).

      . Fortier additionally argues that we should affirm the circuit court’s finding that Lozano was "intentionally nonresponsive” in light of the "great deference [we 'show] toward the trial court's decisions with respéct to such culpability.” Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610, 616 (Ala. 1988). Yet even if we w.ere to hold that the circuit court's finding under .the third Kirtland factor is supported by the facts in this case—which we do not—Jones does not change our conclusion that the circuit court here exceeded its discretion. In Jones, we upheld a circuit court's denial of a defendant’s Rule 55(c) motion because, despite demonstrating the existence of a meritorious defense, defendant Jones’s behavior warranted "a finding of intentional ‘conduct evidencing disrespect for the judicial system.’ ” Jones, 524 So.2d at 614-15 (quoting Ex parte Illinois Central Gulf R.R., 514 So.2d 1283, 1288 (Ala. 1987)). Among other things, the circuit court stated it was " ‘completely incredulous as to Mr. Jones’s claims,’ ” that Jones was " 'playing games with the Court,’ ” which had " 'been a pattern’ ” of his, and that his failure to appear was a "stunt.” 524 So.2d at 615. Although we show great deference to a trial court’s findings of culpability, here, even if Lozano's conduct was culpable under the third Kirtland factor, it was manifestly unlike Jones’s "intentional evasion of the court and ... flouting of its authority,” Jones, 524 So.2d at 615. Therefore, we would nevertheless conclude that the circuit court exceeded its discretion in denying Hilyer’s Rule 55(c) motion to set aside the default judgment.


author: PITTMAN, Judge.

text:
    Kevin Michael HAMAKER v. Carol SEALES
    2150456
    Court of Civil Appeals of Alabama.
    Oct. 14, 2016
    As Modified on Denial of Rehearing Jan. 13, 2017

      James R. Morgan, Birmingham, for appellant.
    Candice J. Shockley, Pelham, for appel-lee.
   PITTMAN, Judge.

Kevin Michael Hamaker (“the father”) appeals from a judgment of the Shelby Circuit Court (“the trial court”) in a post-divorce action commenced by Carol Seales (“the grandmother”), the maternal grandmother of the father’s daughter (“the child”). We affirm.

Factual Background and Procedural History

Sometime before 2003, the father and Elizabeth Easter (“the mother”), the daughter of the grandmother, married; the mother subsequently gave birth to the child in 2003. The grandmother testified that the mother and the father had separated approximately one month after the child’s birth and-that, although the mother and the father had not divorced until 2005, the child had begun living primarily with the grandmother when the mother and the father separated.

The 2005 judgment dissolving the marriage of the mother and the father awarded the mother and the father, joint legal custody of the child, awarded the mother sole physical custody, and awarded the father visitation. However, the grandmother testified, that, despite the custody provisions of the divorce judgment, the child lived primarily with the grandmother until the child was nine, even during periods when the mother was not living with the grandmother.

In 2010, the father commenced a postdi-vorce action (“the 2010 action”) seeking sole physical custody of the child; the grandmother intervened in that action in order to seek sole physical custody. In 2012, shortly before the trial of the 2010 action, the father, the mother, and the grandmother reached an agreement to settle the claims pending in the 2010 action. They agreed that the father and the mother should be awarded joint legal custody, that the father should be awarded sole physical, custody, that the grandmother and her husband should be awarded visitation, that the mother should be awarded supervised visitation during the periods when the grandmother and her husband had visitation,'.'and that the grandmother and her. husband, should supervise the-mother’s visitation. Subsequently, the trial court held a hearing at which the child’s guardian ad litem read the parties’ agreement into the record and the parties confirmed that they had agreed to its terms. The trial court, subsequently entered a judgment in August 2012 (“the 2012 judgment”), which incorporated most of the parties’ agreement, although it failed to award the grandmother’s husband visitation or to authorize him to supervise the mother’s visitation. The portion of the 2012 judgment pertinent to this appeal provided:

“The Court finds that the agreement reached by the parties is in the best interest of the minor child, and it is therefore ORDERED, ADJUDGED and DECREED, as-follows:
“1. Custody:
“[The father] and [the mother] shall have joint [legal] custody of the minor child .... [The father] shall have primary physical custody of the child. The minor child will attend Shades Cahaba Elementary School in Homewood, Alabama,
“2. Visitation and Holiday Visitation:
“[The grandmother] and [the mother] are awarded visitation with the minor child. [The mother’s] visitation shall be exercised in conjunction with the [grandmother’s] (provided such visitation does not violate any [Department of Human Resources] Safety Plan and/or Court Order). [The mother’s] visitation shall be agreed to and arranged between [the mother] and [the grandmother]. [The mother’s] visitation shall be supervised by [the grandmother], and [the mother] shall have .a minimum of five (5) hours supervised visitation per month to be had during the times the [grandmother] exercise[s] visitation. Visitation with the minor child will occur during the following, times:
‘‘2(a). The 1st and 3rd weekend of each month beginning at 3:00 p.m. on Friday until 6:00 p.m. Sunday. If Monday or Friday of the visitation weekend is a holiday, said visitatipn shall include the day of the-holiday.>
“2(b). The standard visitation schedule above shall not apply during the following visitation periods, unless otherwise agreed to by the parties, as follows:
“A. Summer: Three (3) non-consecutive seven (7) day periods, and/or any other that can be agreed upon. [The grandmother] will notify [the father] by April 30, 2012 of which weeks they intend to exercise visitation. Summer shall be defined as the period from June 1 through August 20.
“B. Christmas: Christmas visitation shall be from 3:00 p.m, on December 26 until December 30th at 6:00 p.m.
“C. Thanksgiving: In even numbered years On the week of- Thanksgiving from 6:00 p.m. on Wednesday until 6:00 p.m. the following Friday at 6:00 p.m. During said years and when the regularly scheduled weekend visitation period does not fall on the weekend following Thanksgiving Day, the third weekend of November may be substituted for , the weekend immediately following Thanksgiving.
“D. Spring Break: In odd numbered years during the week of Spring Break from 6:00 p.m. on Friday until 6:00 p.m. the following Friday.
«
“9. Each party shall provide the other with reasonable telephone contact with the minor child while exercising custody or visitation.”

(Emphasis added.)

In December • 2012, the grandmother, acting pro se, filed a petition asking the trial court to hold the father in contempt for violating the 2012 judgment and to “rewrite” the 2012 judgment, which, according to the grandmother’s testimony, had been prepared by the father’s sister, who was an employee of the father’s counsel, and did not contain all the provisions that the trial-court judge had stated in open court that he wanted included in the judgment. The father filed an answer denying the allegations of the grandmother’s petition. In addition, he filed a counterclaim against the grandmother and a cross-claim against the mother in which he asked the trial court to modify the 2012 judgment by terminating the mother’s legal custody, by suspending the mother’s supervised visitation, and by terminating the grandmother’s visitation. Thereafter, the grandmother answered the father’s counterclaim.

The trial court held a bench trial at which it received evidence ore tenus in August 2015. In September 2015, the trial court entered a judgment (“the 2015 judgment”) ruling on the parties’ claims. In pertinent part, the 2015 judgment stated:

“It is therefore ORDERED, ADJUDGED and DECREED as follows:
“1. The court finds that at various times all parties have failed to comply with previous orders of this court.
“2. The Court finds that at various times all parties have engaged in conduct, in the presence of the minor child, that is in violation of this court’s previous orders and instructions from the bench.
“3. The court finds that at various times all parties have failed to conduct themselves in such a way that serves the best interest of the minor child.
“4. The visitation schedule of the [grandmother] and Mother shall be modified as set out in Exhibit ‘A’ attached hereto and made a paid; of this order.
“5. All other aspects of previous orders of this court shall remain in effect unless modified herein by Exhibit ‘A.’
“6. All other requested relief, not stated herein, is hereby DENIED.”

Exhibit “A” attached to the 2015 judgment was the trial court’s standard visitation schedule (“the standard visitation schedule”). In pertinent part, the standard visitation schedule stated:

“The custodial/visitation periods as provided herein are intended by the Court to be the minimum to which each parent is entitled. The parties are encouraged to extend such periods, as herein allowed, as the child grows older, and as may be in the best interest of said child, and to reschedule, by mutual agreement, any custodial/visitation period which is inconvenient for the parties or interferes -with the child’s extracurricular activities, with both parties keeping in mind the best interest of the child.
“The party exercising visitation shall have the following custodial/visitation periods:
“A. Weekends: The first and third weekends of each month from 6:00 p.m. on the first and third Friday of each month until 6:00 p.m. on the following Sunday. Should either a Federal or State holiday, or the child’s school schedule, excuse the child from attendance at school on the Friday beginning the custodial/visitation period and/or on the Monday following said period, the first and third weekend custodial/visitation period shall be extended to include said Friday and/or Monday. The Friday custodial/visitation period shall begin at 9:00 a.m. The Monday custodial/visitation period shall end at 6:00 p.m. The custodial/visitation period specified in this paragraph shall be superseded by the specific custodial/visitation periods set forth in the following paragraphs B-J.
B. Christmas: Christmas Holidays in odd numbered years beginning at 6:00 p.m. on the first day of the school holiday season as set out in the school calendar until 3:00 p.m. Christmas Day. In even numbered years from 3:00 p.m. Christmas Day until 6:00 p.m. on the following January 2nd.
C. Thanksgiving: In even numbered years on the week of Thanksgiving from 4:00 p.m. on Wednesday afternoon until 6:00 p.m. the following Friday. During said .years when the regularly scheduled weekend custodial/visitation period does not.fall on the weekend following Thanksgiving Day, the third weekend of November may be substituted for the weekend immediately following Thanksgiving Day.
D. Easter: In even numbered years from 6:00 p.m. on the Saturday before Easter until Easter Sunday at 6:00 p.m.
E. Summer: Two (2) fourteen day periods during the school summer break each year, at times to be selected by the parent exercising custodial/visitation period upon written notice to the other party at least thirty (30) days in advance. Such periods shall be separated by at least two (2) weeks, and shall be scheduled so that the child is returned to the primary residence at least one week before the beginning of the fall school term.
“F. Spring break: Spring school break in even numbered years as set by the school calendar. Said spring break custodial/visitation period shall commence at 6:00 p.m. on the Friday beginning the spring break, and conclude at 6:00 p.m. on the following Friday. This custodial/visitation period shall take the place of the weekend custodial period closest to spring break.
“G. Fall Break: Fall school break in odd numbered years as set by the school calendar. Said fall break custodial/visitation period shall commence at 6:00 p.m. on the first day of the fall break, and conclude at 3:00 p.m. on the last day of the fall break. This custodial/visitation period shall take the place of the weekend custodial period closest to fall break.
“H. Father’s Day: The Father shall have the right of custodial/visitation period with the child for Father’s Day of each year. Said custodial/visitation period shall begin at 4:00 p.m. on the Saturday pri- or to Father’s Day and shall end no later than 6:00 p.m. on Father’s Day.
“E. Mother’s Day: The Mother shall have the right of custodial visitation with the child for Mother’s Day of each year. Said custodial/visitation period shall begin at 4:00 p.m. on the Saturday prior to Mother’s Day and shall end no later than 6:00 p.m. on Mother’s ■ Day.
“J. Child’s Birthday: In even numbered years, on the child’s birthday from 4:00 p.m, until 7:30 a.m. the following day. In odd numbered years, on the child’s birthday from 4:00 p.m. to 8:00 p.m.”

The father timely filed a Rule 59(e), Ala. R. Civ. P., motion to alter,- amend, or vacate the 2015 judgment, which he subsequently amended. The trial court held a hearing regarding that motion and, thereafter, entered an order denying that motion but providing as follows:

“4. The court does amend [the 2015 judgment] to include language similar to the court’s [2012 judgment] in that all visitation exercised by the mother ... shall be supervised by the maternal grandmother....
“5. The court notes that the parties, by agreement, granted visitation to the [grandmother] by [the 2012 judgment]. The [2012 judgment] states, in part, as follows:
“1... and the Court was informed that an agreement had been reached between all parties to resolve the disputed matters as to custody and visitation regarding the minor child ... ’
“The order also states, in part:
“ ‘2. Visitation and Holiday Visitation: “‘[The grandmother] and [the mother] are awarded visitation with the minor child.’ ”

Thereafter, ■ the father timely appealed from the 2015 judgment.

Standard of Review

‘““‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed- unless the judgment is palpably erroneous or manifestly unjust.”” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala. 2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain.its judgment.’” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala. 2007).

Analysis

The father’s first two' arguments are based on the same premise, i.e., that, unless he was found to he an unfit parent, he had a fundamental right to determine how much time the child should spend with the grandmother. Based on that premise, he argues (1) that the trial court, by denying his claim seeking the termination of the grandmother’s visitation, infringed upon his fundamental right to determine how much time the child should spend with the grandmother and (2) that the trial court erred in disregarding his decision that the grandmother’s visitation should be terminated in the absence of a finding that he was an unfit parent.

It is. true that a fit parent has a fundamental right to make decisions regarding the care, custody, and control of his or her child. See Ex parte E.R.G., 73 So.3d 634, 642-47 (Ala. 2011). However, in the present case, the father exercised his fundamental right to make such decisions by voluntarily agreeing in 2012 that the grandmother could have court-ordered visitation, and, pursuant to that agreement, the trial court included an award to the grandmother of court-ordered visitation in the 2012 judgment. The father did not appeal from that judgment, and it became the law of the case with respect to the issue whether the grandmother was entitled to court-ordered visitation, and the trial court in the present action lacked jurisdiction to determine ab initio whether the grandmother should have been granted visitation rights in the 2012 judgment. See N.T. v. P.G., 54 So.3d 918, 919-21 (Ala. Civ. App. 2002). In N.T. v. P.G., the Jefferson Juvenile Court (“the juvenile court”) had. found three children dependent and had placed each of them in the custody of a nonparent custodian (“the former custodians”). 54 So.3d at 919. N.T., the three children’s mother, subsequently proved that she had rehabilitated herself, which resulted in the juvenile court’s entering a judgment on August 5, 2009, that restored the three children to N.T.’s custody and granted the former. custodians “standard visitation.” Id. N.T. did not appeal from the August 5, 2009, judgment. Id. On November 19, 2009, N.T. filed a “Motion to Amend and Close Case” in which she requested that the juvenile court amend the August 5, 2009, judgment to provide that the former custodians’ visitation would be at the discretion of N.T. Id. The juvenile court treated N.T.’s motion, which was filed after the 14-day period for filing a postjudgment motion in a juvenile case had expired, see Rule 1(B), Ala. R. Juv. P., as a petition to modify the August 5, 2009, judgment based on changed circumstances. The juvenile court held a trial and entered a judgment on December 9, 2009, modifying the former custodians’ visitation to one weekend per month. Id. N.T. then appealed from the December 9, 2009, judgment and challenged that judgment on the ground that it violated her custodial rights and her constitutional rights. 54 So.3d,at 919-20. Rejecting N.T.’s argument and affirming the December 9, 2009, judgment, this court stated:

“On appeal, [N.T.]- argues solely that the juvenile court erred in granting- any visitation to the former custodians because, she says, such an order violates her custodial rights, see Shoemaker v. Shoemaker, 563 So.2d 1032, 1033 (Ala. Civ. App. 1990) (holding that parent has custodial right to prevent visitation with nonparent), and her constitutional rights, see Troxel v. Granville, 530 U.S. 57, 78-79, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (holding that custodial parent has constitutional right to determine with whom children associate). We note, however, that the juvenile court originally granted visitation to the former custodians in its August 5, 2009, judgment. [N.T.] did not appeal from that judgment. Instead, more than three months later, on November 19, 2009, the mother filed what effectively amounted to a petition to modify the former custodians’ visitation, rights.
“On a petition to modify visitation, a court does not reexamine the evidence to determine if its'original judgment was correct; rather, it decides whether, modification is warranted based on changed •circumstances. In G.P. v. A.A.K., 841 So.2d 1252 (Ala. Civ. App. 2002), the grandparents gained visitation rights pursuant to a Kentucky judgment. [One of the parents (‘the parent’) ] then moved an Alabama court.to modify that judgment, arguing that the original Kentucky, judgment violated her constitutional rights under Troxel, supra. The Alabama court held that ‘Alabama’s .grandparent-visitation statute, Ala. Code 1975, § 30-3-4.1, was unconstitutional’: and ‘declined to enforce or to modify the grandparents’- visitation’ rights, and the grandparents appealed. 841 So.2d .at 1254 (emphasis omitted). This court noted that, the Kentucky judgment was conclusive as to any right of the grandparents to visit and that, if the [parent] had any constitutional objections to that judgment, she should have pursued them in relation to that judgment. This court held that the [parent] could not use a petition to modify the grandparents’ visitation rights filed in an Alabama court as a means of belatedly raising those objections. This court stated:
“ ‘[T]he fact that the Houston Circuit Court had jurisdiction to modify the grandparents’ visitation rights as the [parent] requested does not mean that it had jurisdiction to redetermine, ab initio, whether the grandparents should have been granted visitation rights—the previous visitation judgment “remain[ed] a custody determination of the state that issued it.’”
841 So.2d at 1257 (quoting Ala. Code 1975, § 30-3B-303 (Official Comment)).
“Although this case does not involve issues regarding interstate jurisdictional conflict, the reasoning in G.P. applies equally to this case. [N.T.] should have raised any constitutional or other objections she had to the judgment awarding visitation rights to nonparents at the time that judgment was entered on August 5, 2009. See E.H.G. v. E.R.G., 73 So.3d 614, 622 (Ala. Civ. App. 2010) (recognizing right of fit parent to prevent visitation by grandparents, which right can only be overridden by court based on evidence that the prevention of the visitation would harm the child). However, [N.T.] did not file a timely postjudgment motion or an appeal raising those objections. Instead, she waited until November 19, 2009, to file a ‘motion to amend’ the August 5, 2009, judgment. At that point, any error committed by the juvenile court in granting the former custodians visitation rights in the August 5, 2009, judgment had become the law of the case, subject to modification only upon a showing of changed circumstances. See McQuinn v. McQuinn, 866 So.2d 570, 575 (Ala. Civ. App. 2003) (noting that, since mother did not appeal from judgment awarding the child’s former stepfather visitation rights, the former stepfather’s ‘right ... to visitation with the stepson became the law of the case’ ‘except as it may be subject to modification upon a change in circumstances’).
“On appeal from one judgment, an appellate court cannot consider arguments relating to errors committed in a previously entered final judgment from which no appeal was taken. See Moody v. Myers, 268 Ala. 177, 105 So.2d 54 (1958). Thus, this court is foreclosed from addressing the arguments raised by [N.T.] relating to the correctness of the August 5, 2009, judgment. Our review is confined to arguments directed only to the judgment entered on December 9, 2009.”

Id. at 919-21.

The present case is analogous to N.T. v. P.G., and the reasoning of N.T. v. P.G. is equally applicable to the present case. In the present case, the 2012 judgment granted the grandmother visitation rights, and the father did not appeal from that judgment. “At that point, any error committed by the [trial court] in granting the [grandmother] visitation rights in the [2012] judgment had become the law of the case, subject to modification only upon a showing of changed circumstances.” N.T. v. P.G., 54 So.3d at 920. Therefore, we reject the father’s first two arguments.

The father’s third argument is that the trial court’s denial of his claim seeking to terminate or modify the grandmother’s visitation was plainly and palpably wrong and contrary to the great weight of the evidence. In support of this argument, the father cites evidence indicating that he and the grandmother had not been on cordial terms even before the entry of the 2012 judgment and that, after the entry of the 2012 judgment, the grandmother had, on occasion, engaged in conduct that was not in the best interest of the child. However, the trial court expressly found that the father had also engaged in conduct that was not in the best interest of the child:

“1. The court finds that at various times all parties have failed to comply with previous orders of this court.
“2. The Court finds that at various times all parties have engaged in conduct, in the presence of the minor child, that is in violation of this court’s previous orders and instructions from the bench.
“3. The court finds that at various times all parties have failed to conduct themselves in such a way that serves the best interest of the minor child.”

The evidence regarding the father’s and the grandmother’s conduct was in dispute. The father introduced evidence tending to prove that the grandmother had written him unpleasant e-mails; had expressed anger toward him; had defied his rule forbidding the child from having access to social media; had discussed the visitation dispute with the child; had, on occasion, delegated her responsibility for supervising the mother’s visitation to other people; and had, on one occasion, left the child with the mother in a public place in the absence of any supervision while the grandmother took another one of her grandchildren to the bathroom. On the other hand, the grandmother introduced evidence tending to prove that the father had sometimes denied the grandmother visitation when she was entitled to it under the terms of the 2012 judgment, had prevented the grandmother from having telephone contact with the child during his custodial periods, had prevented the grandmother from attending some of the child’s school activities and extracurricular activities despite the child’s desire that the grandmother attend them, had refused to allow the child to use a softball bat the grandmother had bought for the child, and had been uncooperative in general in his dealings with the grandmother regarding her visitation. Each party introduced evidence tending to minimize his or her violations of the 2012 judgment and to amplify the violations of the other. Our review of the evidence before the trial court indicates that the trial court’s findings that both parties had, on occasion, violated the 2012 judgment and had acted contrary to the child’s best interest are amply supported by that evidence.

Moreover, the trial court could reasonably have inferred from the evidence that, because the child had lived primarily with the grandmother for the first nine years of the child’s life, the child and the grandmother had a strong emotional bond and, therefore, that terminating.or reducing the grandmother’s visitation would be contrary to the child’s best interest. Accordingly, we reject the father’s argument that the trial court’s denial of his claim seeking to terminate or modify the grandmother’s visitation was plainly and palpably wrong and contrary to the great weight of the evidence.

Finally, the father argues that the trial court erred in substituting the standard visitation schedule for the visitation schedule set forth in the 2012 judgment because, he says, it resulted in an increase in the grandmother’s visitation in the absence of evidence justifying such an increase.

“ ‘[T]he trial court has broad discretion in deciding on visitation rights of the noncustodial parent. Wallace v. Wallace, 485 So.2d 740 (Ala. Civ. App. 1986). This discretion applies to modification proceedings as well as to the original custody proceeding. Id. “When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will-not be -disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 620 So.2d 512 (Ala. Civ. App. 1987).” Dominick v. Dominick, 622 So.2d 402, 403 (Ala. Civ. App. 1993).’
“Flanagan v. Flanagan, 656 So.2d 1228, 1230 (Ala. Civ. App. 1995).”

Griffin v. Griffin, 159 So.3d 67, 70 (Ala. Civ. App. 2014).

In Springer v. Damrich, 993 So.2d 481, 489 (Ala. Civ. App. 2008), this court affirmed a judgment insofar as' it had modified the visitation schedule set forth in a divorce judgment, stating:

“ ‘ “The determination of proper visitation ... is -within the sound discretion of the trial court, and that court’s determination should not be reversed by-an appellate court absent a showing of an abuse of discretion.” Ex parte Bland, 796 So.2d [340,] 343 [ (Ala. 2000) ]. “The primary consideration in setting visitation rights is the b¿st interest of the child. Each'child' visitation case must be decided on its own facts and 'circumstances.” DuBois v. DuBois, 714 So.2d 308, 309 (Ala. Civ. App. 1998) (citation omitted).’
“Williams v. Williams, 905 So.2d 820, 830 (Ala. Civ. App. 2004).
“In this ease, over the five-year span of the postdivorce litigation, the trial-court received a vast amount of information regarding the visitation plan that served the best interests of the children. - Based on its unique, perspective, the court determined from the heavily conflicting evidence, that its original visitation order, should be-modified. We note that the [modified] visitation schedule is not dramatically different from the schedule-set-forth in the divorce judgment. Based on the foregoing and on our limited standard of review on this issue, we cannot conclude that the trial court exceeded] its discretion in- this regard.”

Like the evidence before the Jefferson Circuit Court in Springer v. Damrich, the evidence before the trial court in the present case was in conflict regarding the parties’ conduct and the amount of visitation that would serve the child’s best interest. Like the Jefferson Circuit Court, the trial court - determined,- based on conflicting evidence it received ore tenus, that the standard visitation schedule should be substituted for the original visitation schedule set forth in the 2012 judgment. Moreover, we note that, as was the case in Springer v. Damrich, 993 So.2d at 489, “the- [modified] visitation schedule is not dramatically different from the [visitation] schedule set forth in the [2012] judgment”—the modified schedule merely grants the grandmother an additional weelc in the summer and a few holidays that she had not been granted in the 2012 judgment. Given these circumstances, we cannot conclude that the trial court improperly.exercised its discretion in modifying the visitation schedule. .See Springer v. Damrich, Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.