Hobbs v. Heisey

6 So. 3d 529, 2008 Ala. Civ. App. LEXIS 541, 2008 WL 2623928
CourtCourt of Civil Appeals of Alabama
DecidedAugust 29, 2008
Docket2070085
StatusPublished
Cited by2 cases

This text of 6 So. 3d 529 (Hobbs v. Heisey) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hobbs v. Heisey, 6 So. 3d 529, 2008 Ala. Civ. App. LEXIS 541, 2008 WL 2623928 (Ala. Ct. App. 2008).

Opinions

MOORE, Judge.

Scott Christopher Hobbs (“the father”) appeals from the denial of his motion filed pursuant to Rule 60(b), Ala. R. Civ. P. We affirm.

This is the second time these parties have been before this court. See Hobbs v. Heisey, 979 So.2d 821 (Ala.Civ.App.2007) (“Hobbs I ”). In Hobbs I, we set forth the relevant procedural history as follows:

“On June 16, 2000, the father and [Dorarena Kay Heisey,] the mother[,] were divorced by the Madison Circuit Court Pursuant to that judgment, the father and the mother were awarded joint legal and physical custody of then-minor child. On March 19, 2002, the court entered a judgment modifying the divorce judgment; under the 2002 judgment, the parents retained joint legal and physical custody of the child. On October 12, 2005, the mother filed a petition requesting that she be awarded primary physical custody of the child, that the court incorporate the ‘Standard Parenting Clauses routinely utilized by ... the [c]ourt,’ that she be awarded child support, and that she be awarded her fees and expenses.
“On November 21, 2005, the father filed his answer to the petition; he also filed a counterclaim in which he requested that, if the court were to determine that a change in custody was warranted, he be awarded primary physical custody of the child and child support. Further, the father requested that the court hold the mother in contempt for her alleged failure to comply with the prior orders [531]*531of the court and that he be awarded an attorney fee. The mother answered the counterclaim on November 29, 2005.
“On January 19, 2006, the mother filed an amendment to her petition requesting that the court hold the father in contempt. After an ore tenus hearing, the court entered a judgment on March 22, 2006. The judgment provided that the parties would continue to share legal and physical custody of the child. The judgment further provided:
“ ‘This Court’s decision should not be interpreted by anyone that the ... father’s actions in disciplining the child in the past are considered to be appropriate. In fact, such conduct and actions by the father in the future, if proven, will result in appropriate action by the Court by way of sanctions and modifications as necessary.’
“The court ordered each party to pay their own attorney fees and denied both motions for contempt.
“On April 12, 2006, the father filed a motion to alter or amend the March 22, 2006, judgment, requesting that it clarify what forms of discipline it deemed unacceptable. On April 20, 2006, the mother responded to the father’s April 12, 2006, motion; she also filed a motion for a new trial or, in the alternative, to alter or amend the March 22, 2006, judgment. In her motion, she requested that the trial court award her primary physical custody of the child, incorporate the ‘standard parenting clauses’ used in the Madison Circuit Court, award her an attorney fee, and hold the father in contempt.
“On June 28, 2006, the trial court withdrew its March 22, 2006, judgment and entered an amended judgment awarding primary physical custody of the child to the mother, incorporating the ‘standard parenting clauses,’ awarding child support to the mother, finding the father in contempt, and awarding the mother an attorney fee.
“On July 27, 2006, the father filed a motion to alter or amend the June 28, 2006, judgment. He requested that the court order that the parties share legal and physical custody of the child, that the court vacate its finding of contempt and its award of an attorney fee to the mother, and that the court find the mother in contempt and award him an attorney fee. The mother responded to the father’s July 27, 2006, motion on September 12, 2006.
“On September 29, 2006, the court held a hearing on the father’s July 27, 2006, motion and, on October 26, 2006, 91 days after the postjudgment motion had been filed, the court purported to grant the father’s motion and to enter an amended judgment. On December 1, 2006, the father filed his notice of appeal; on December 7, 2006, the mother cross-appealed.”

979 So.2d at 822-23.

On appeal and cross-appeal, this court noted that, “because the October 26, 2006, judgment was entered after the 90-day period to rule on a postjudgment motion had expired, that judgment is void and will not support an appeal.” Hobbs I, 979 So.2d at 823. Therefore, in Hobbs I, which was released on August 17, 2007, we dismissed the appeal and the cross-appeal. Id.

Thereafter, on August 24, 2007, the father filed a motion for relief from the June 2006 judgment, pursuant to Rule 60(b)(5) and (6), Ala. R. Civ. P.1 That motion was denied on September 12, 2007.

[532]*532On appeal, the father argues that the trial court exceeded its discretion in denying his Rule 60(b) motion. He argues that he is entitled to relief from the June 2006 amended judgment pursuant to Rule 60(b)(6) because, he says, the trial court entered the June 2006 amended judgment without taking additional evidence and because the trial court intended to vacate that judgment but failed to do so within the 90-day period provided by Rule 59.1, Ala. R. Civ. P.

“When considering Rule 60(b) motions, trial courts ‘attempt to balance the desire to remedy injustice against the need for finality of judgments.’ Raine v. First Western Bank, 362 So.2d 846, 848 (Ala.1978). ‘Whether to grant or deny relief under Rule 60(b)(6) is within the discretion of the trial judge, and the trial judge’s ruling on that question will not be reversed except for an abuse of that discretion.’ Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 283 (Ala.1998).

“‘The “catch all” provision of clause (6) of Rule 60(b) allows a trial court to grant relief from a judgment for “any other reason justifying relief.” Barnett v. Ivey, 559 So.2d 1082, 1084 (Ala.1990). “ ‘Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice.’ ” Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984) (quoting Douglass v. Capital City Church of the Nazarene, 443 So.2d 917, 920 (Ala.1983)). Clause (6), however, is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5) .... Because clause (6) operates exclusively of the specific grounds listed in clauses (1) through (5), this Court has stated that a party may not escape the four-month limitation applicable to clauses (1) through (3) merely by characterizing the motion as seeking relief under clause (6).’
“[R.E. Grills, Inc. v. Davison,] 641 So.2d [225] at 229 [ (Ala.1994) ].
“Although grounds for relief under Rule 60(b)(1) generally cannot be used to provide relief under Rule 60(b)(6), our supreme court has recognized an exception when, in the interest of justice, ‘aggravating circumstances may allow a trial court to treat what would otherwise be a Rule 60(b)(1) motion as a Rule 60(b)(6) motion.’ Ex parte Wal-Mart Stores, Inc.,

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Hobbs v. Heisey
6 So. 3d 529 (Court of Civil Appeals of Alabama, 2008)

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6 So. 3d 529, 2008 Ala. Civ. App. LEXIS 541, 2008 WL 2623928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hobbs-v-heisey-alacivapp-2008.