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10/07/94 EDWARD ONEAL LOWERY v. PATTY E. LOWERY

October 7, 1994

EDWARD ONEAL LOWERY
v.
PATTY E. LOWERY



Appeal from Colbert Circuit Court. (DR-93-439). N. Pride Tompkins, TRIAL JUDGE.

Rehearing Overruled November 18, 1994, . As Corrected. Released For Publication November 28, 1995.

Robertson, Presiding Judge. Yates, J., concurs. Thigpen, J., Dissents.

The opinion of the court was delivered by: Robertson

ROBERTSON, Presiding Judge

On November 12, 1993, Patty E. Lowery filed, in the Colbert County Circuit Court, a complaint seeking a divorce from Edward Oneal Lowery. The wife also sought custody of the parties' two children, a son, age six, and a daughter, age two. The parties had entered into an agreement before the wife filed her complaint. On November 22, 1993, the trial court entered a judgment of divorce, ratifying, approving, and incorporating the agreement of the parties. The agreement provided, among other things, that the wife have custody of the minor children; that the husband pay $1200 per month child support; that the wife be awarded the marital residence; that the husband pay the tuition for the children to attend Mars Hill Bible School; and that the husband pay for the children's college education.

On February 22, 1994, the husband filed a motion to set aside, alter, amend, or correct the divorce judgment or, in the alternative, to modify the divorce judgment so as to set his child support obligation in compliance with the child support guidelines of Rule 32, Ala.R.Jud.Admin., and to show a no-fault ground of divorce.

On March 30, 1994, the wife filed a motion for summary judgment. On April 12, 1994, the husband filed an affidavit in opposition to the wife's motion. On April 13, 1994, the husband amended his motion, seeking relief pursuant to Rule 60(b), A.R.Civ.P., from the divorce judgment. On April 27, 1994, the trial court entered an order granting the wife's motion for summary judgment and denying the husband's motion.

The husband appeals, arguing that the trial court abused its discretion in denying his Rule 60 (b) motion.

"Rule 60(b) is an extraordinary remedy that is permitted only in exceptional circumstances when the moving party can show the trial court sufficient equitable grounds for relief." Norfolk v. Wynn, 581 So. 2d 848, 850 (Ala. 1991) (citations omitted). Rule 60(b), A.R.Civ.P., provides:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment."

The grant or denial of a Rule 60(b) motion is within the discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of that discretion. Norfolk, (supra) .

The husband argues that his Rule 60(b) motion should have been granted because the parties' agreement and the divorce judgment failed to comply with Rule 32, Ala.R.Jud.Admin., and because, he says, the agreement of the parties was unjust or inequitable. Rule 32 as amended effective October 4, 1993, states in pertinent part:

"(A) Child Support Guidelines Established.... There shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption if the finding is based upon:

"(i) A fair, written agreement between the parties establishing a different amount and stating ...


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