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10/07/94 JEAN H. CLEMONS v. WILLIAM CLEMONS

October 7, 1994

JEAN H. CLEMONS
v.
WILLIAM CLEMONS



Appeal from Marshall Circuit Court. (DR-90-120). William Jetton, TRIAL JUDGE.

Rehearing Overruled November 18, 1994, . Certiorari Denied February 24, 1995. Released for Publication June 25, 1995.

Robertson, Presiding Judge. Thigpen and Yates, JJ., concur.

The opinion of the court was delivered by: Robertson

ROBERTSON, Presiding Judge

This is an appeal from the denial of a Rule 60(b), Ala.R.Civ.P., motion. This is also the second time that this case has been before this court for appellate review regarding the alleged payment of $30,000 by the wife to the husband. See Clemons v. Clemons, 627 So. 2d 431 (Ala. Civ. App. 1993), wherein we affirmed the trial court's judgment.

On March 31, 1992, the trial court entered a judgment divorcing the parties, William Clemons and Jean H. Clemons. In the divorce judgment, the wife was ordered to pay the husband the sum of $30,000 to compensate him for having paid the outstanding mortgage on a piece of real estate in the wife's name, which she retained. See Clemons, (supra) , for the facts involving this transaction. The Alabama Supreme Court denied certiorari review of Clemons on August 27, 1993.

On September 27, 1993, the wife filed a Rule 60(b) motion, requesting that the trial court set aside the portion of the divorce judgment directing her to pay the husband $30,000. The wife alleged: (1) that she had paid the $30,000 to the husband and that he had given her a written receipt of this payment; (2) that the absence of the receipt at trial was a substantial factor in the trial court's judgment; (3) that since the trial, she had recovered the receipt; and (4) that the husband had perpetrated a "fraud upon the court."

On October 25, 1993, the trial court held that the wife's Rule 60(b) motion for relief from judgment would be treated as a motion pursuant to Rule 60(b)(6), Ala.R.Civ.P.

Following an ore tenus proceeding on January 6, 1994, the trial court, on February 7, 1994, denied the wife's request for Rule 60(b) relief, on the authority of Brown v. Kingsberry Mortgage Co., 349 So. 2d 564 (Ala. 1977), and Spindlow v. Spindlow, 512 So. 2d 918 (Ala. Civ. App. 1987). The wife's post-judgment motion was denied.

The wife appeals, contending that the trial court abused its discretion by denying her Rule 60(b) motion.

Rule 60(b) provides in pertinent part that:

"The court may relieve a party or his legal representative from a final judgment, order, or proceeding for ... (6) any ... reason justifying relief from the operation of the judgment. ... This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three years after the entry of the judgment ... to relieve a party from a judgment, order, or proceeding, or set aside a judgment for fraud upon the court."

However, in order to obtain Rule 60(b) relief, the moving party must allege and prove at least one of the grounds in the rule. Briscoe v. Briscoe, 600 So. 2d 290 (Ala. Civ. App. 1992). The remedy provided by Rule 60(b), Ala.R.Civ.P., is an extreme remedy that is only available under extraordinary circumstances. State ex rel. Morris v. Cobb, 571 So. 2d 1146 (Ala. Civ. App. 1990). It is well settled that the trial court has wide discretion to grant or to deny relief under Rule 60(b), and that absent an abuse of that discretion its judgment will not be disturbed on appeal. Id. In determining whether there has been an abuse of discretion, this court will look to the grounds presented by the motion and to the evidence presented in support of the motion. Id.

At the hearing on the Rule 60(b) motion, the wife contended that she had paid the $30,000 to the husband; that she had recently recovered what she claimed to be a "receipt" showing this payment; and that this "receipt" was evidence that the husband had perpetrated a fraud upon the court by ...


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