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03/07/95 TERRI ANN ELLIOTT v. BILLY LEE ELLIOTT

March 7, 1995

TERRI ANN ELLIOTT
v.
BILLY LEE ELLIOTT



Appeal from Jefferson Circuit Court. (DR-94-350). Horace H. Nation III, TRIAL JUDGE.

As Amended. Rehearing Denied April 14, 1995, . Certiorari Denied July 28, 1995. Released for Publication January 19, 1996.

Monroe, Judge, Robertson, P.j., and Thigpen, J., concur. Yates, J., concurs in the result. Crawley, J., Dissents.

The opinion of the court was delivered by: Monroe

MONROE, Judge

The wife appeals from a judgment denying her Rule 60(b), A.R.Civ.P., motion for relief from a divorce judgment.

The parties were divorced on March 25, 1994. The judgment of divorce incorporated an "agreement" of the parties.

On April 20, 1994, the wife, Terri Ann Elliott, filed a motion to set aside the judgment, alleging that the "agreement" incorporated therein was a direct product of mistake on her part, and harassment, undue coercion, and misconduct on the part of the husband, Billy Lee Elliott. Following oral proceedings, the trial court denied the wife's motion. She appeals and asserts that the trial court erred in refusing to grant her requested relief.

It is clear that the "agreement", if it can be termed such, was signed by the wife under conditions of duress, coercion, misrepresentation, and deceit. We reverse the trial court's order.

Rule 60(b) provides:

"On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (3) fraud ..., misrepresentation, or other misconduct of an adverse party; ... (5) ... it is no longer equitable that judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment."

Whether to grant a Rule 60(b) motion is within the discretion of the trial court. Delchamps v. Delchamps, 449 So. 2d 1249 (Ala. Civ. App. 1984). The committee comments to Rule 60(b) indicate what is required when exercising this discretion: "In exercising this discretion, the court must balance the desire to remedy inJustice against the need for finality of judgments." See also Robinson v. Robinson, 490 So. 2d 917 (Ala. Civ. App. 1986).

After reviewing the record, we find it obvious that the trial court failed to remedy an inJustice. The pertinent facts are as follows: The parties were married March 22, 1980. Two children were born during the marriage; at the time of the divorce the daughter was age nine and the son was age four. The wife worked and provided the primary support for her husband while he attended law school. The wife has a two-year junior college degree, and is employed as a lab technician. The husband has practiced law for approximately eight years. Forty percent of his practice is domestic relations work.

On January 31, 1994, the wife employed attorney Jim Fullan to sue for divorce. On February 1, 1994, he filed a divorce complaint. From February 1, 1994, until the husband procured the wife's signature on his marriage settlement "agreement," on March 25, 1994, he harassed and intimidated her. He telephoned her at her place of work at least once a day. Her supervisor stated that he called "numerous times, [and talked] for long periods of times." Two witnesses testified that the husband would show up at the wife's place of work "a minimum of one to two times per week." He was described as being angry and aggressive, to the point that her supervisor called security employees during one of his visits. Her supervisor described the wife as being "emotional, frightened, ... [and] crying." The husband's harassment affected her emotionally to the point that she was counseled about her inability to perform her job during this period.

The testimony of the wife's supervisor was corroborated by a co-worker. Both described the husband's numerous phone calls, appearances at the wife's place of work, and his ...


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