July 17, 2015
from Baldwin Juvenile Court. (CS-95-166.05).
Judge. Thompson, P. J., and Pittman, J., concur. Thomas, J.,
dissents, with writing, which Moore, J., joins. Moore, J.,
appeals from an order of the Baldwin Juvenile Court ("
the trial court" ) denying his request for relief from a
judgment pursuant to Rule 60(b)(6), Ala. R. Civ. P. We
dismiss the appeal.
record on appeal is devoid of several relevant pleadings and
other pertinent documentation. Nonetheless, the following
procedural history and facts can be construed from the
limited record. In 1994, T.T. and K.M.G. were divorced by a
judgment of a Georgia court (" the Georgia
judgment" ). At the time the Georgia judgment was
entered, the parties had two minor children. At some point
thereafter, proceedings involving the parties were commenced
in the trial court involving the Georgia judgment. Those
proceedings were assigned case no. CS-95-166. On June 30,
1995, the trial court entered an order in case no. CS-95-166
directing T.T. to pay child support in the amount of $370 per
month beginning on July 1, 1995. In that order, the trial
court also found T.T. to be in arrears on his child-support
obligation in the amount of $328. On the same day, the trial
court entered an income-withholding order directing
T.T.'s employer to deduct the monthly amount of
T.T.'s child-support obligation from T.T.'s income.
undetermined point thereafter, K.M.G. apparently filed a
petition for a finding of contempt against T.T. based on his
alleged failure to pay child support. The proceedings arising
from that petition were docketed as case no. CS-95-166.02. On
January 26, 2004, the trial court entered an order in case
directing T.T. to pay $3,296.08 to purge himself of contempt
April 14, 2004, K.M.G. filed a petition for a finding of
contempt against T.T. and for a modification of the Georgia
judgment. The proceedings arising from that petition were
docketed case no. CS-95-166.03. A notation in the record
indicates that that case was voluntarily dismissed by K.M.G.
on July 20, 2004.
apparently commenced another contempt action at some later
point, which was docketed as case no. CS-95-166.04. On April
18, 2011, the trial court entered a judgment in case no.
CS-95-166.04 stating as follows:
" This cause having come before the Court for the trial
of [K.M.G.'s] Petition for Rule Nisi and Entry of
Judgment on April 8, 2011, and [T.T.] having been personally
served with a Summons and Petition, failing to appear for
trial, and failing to answer or otherwise defend the Petition
for Rule Nisi and Entry of Judgment, and this Court receiving
sworn testimony and exhibits from [K.M.G.], the Court does
" HEREBY ORDER, ADJUDGE AND DECREE as follows:
" 1. Default Judgment is granted in favor of [K.M.G.]
and against [T.T.] in the amount of $171,680.62, which
includes the following amounts: $170,758.97 (child support
arrearage plus interest); $750.00 (reasonable attorney's
fees); and $171.65 (costs of court), for which execution
April 21, 2014, T.T. filed an independent action in the trial
court seeking relief pursuant to Rule 60(b), Ala. R. Civ. P.,
from the April 18, 2011, judgment entered in case no.
CS-96-166.04, and the trial-court clerk docketed that action
as case no. CS-95-166.05. In his request for relief, T.T.
contended that he had been served with the summons and the
contempt petition filed by K.M.G. in case no. CS-95-166.04
but that he did not receive notice of the final hearing held
on April 8, 2011. As a result of his failure to appear, he
contended, the trial court entered the default judgment in
the amount of $171,680.62. He contended that he owed
" no child support arrearage, which can be verified
through the attached Court orders, and other documents and
therefore the Final Judgment entered on April 18, 2011, must
be a mistake, clerical error, or supported by fraudulent
evidence and testimony. Furthermore, the Final Judgment
entered on April 18, 2011, is unconscionable and not in
furtherance of justice."
trial court held a hearing on T.T.'s request for relief
on August 28, 2014, at which the trial court heard arguments
of counsel for the parties. Counsel for K.M.G. argued that
T.T.'s independent action was untimely under Rule 60(b).
In open court, the trial court stated as follows:
" [I]t appears to me that [T.T.] had opportunities to
contest these things prior to now -- or prior to then. Then,
being 2011. And that when he's served with process at
some point it becomes his responsibility to make sure his
address is correct at the clerk's office. What address
the opposing counsel writes down for him is not controlling.
It is the address that the clerk holds and each person who is
a litigant is responsible for keeping their address current
at the clerk's office, that you can't go blaming the
other side's lawyer for your address being wrong at the
clerk if you don't go and update it. After you've
been served and already had certain opportunities to be
involved, you can't go blame it on somebody else and then
slightly more than three years later ask it be undone. I
think there were ample
opportunities to have addressed these things. And that [T.T.]
had in fact acted at other times in the court, I'm kind
of surprised he didn't act at these other times prior to
2011 since apparently he's used to court. I don't
think I can grant it, regardless of how fair or unfair it may
same day as the hearing, the trial court entered an order
denying T.T.'s request for relief pursuant to Rule 60(b).
T.T. filed a timely notice of appeal to this court on
September 9, 2014.
appeal, T.T. contends that the trial court erred in
dismissing his independent action commenced pursuant to Rule
60(b) on the basis that it was untimely. He argues that the
action was commenced within a " reasonable time"
after entry of the judgment in case no. CS-95-166.04. Rule
60(b) provides, in pertinent part:
" On motion and upon such terms as are just, the court
may relieve a party or a party's 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)[, Ala. R. Civ. P.]; (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 motion shall
be made within a reasonable time, and for reasons (1), (2),
and (3) not more than four (4) months after the judgment,
order, or proceeding was entered or taken. ... This rule does
not limit the power of a court to entertain an independent
action within a reasonable time and not to exceed three (3)
years after the entry of the judgment (or such additional
time as is given by § 6-2-3 and § 6-2-8, Code of
Alabama 1975) to relieve a party from a judgment, order, or
proceeding, or to set aside a judgment for fraud upon the
appeal, T.T. argues that his Rule 60(b) action was commenced
pursuant to Rule 60(b)(6), the " catch all"
provision of Rule 60(b) that authorizes a trial court to
grant relief from a judgment for " any other reason
justifying relief." He makes no argument on appeal that
he sought relief pursuant to Rule 60(b)(1), (3), or (4).
" Generally, an appellate court is limited to
considering only those issues raised on appeal. Harding
v. Pierce Hardy Real Estate, 628 So.2d 461, 462 (Ala.
1993). The failure to raise an issue on appeal is the
equivalent of waiving the issue. 628 So.2d at 462."
Ex parte Professional Bus. Owners Ass'n
Workers' Comp. Fund, 867 So.2d 1099, 1101 (Ala.
2003). Our supreme court has noted that Rule 60(b)(6) "
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)." R.E. Grills, Inc. v. Davison, 641 So.2d
225, 229 (Ala. 1994).
60(b) provides that an independent action for relief from a
judgment shall be filed " within a reasonable time and
not to exceed three (3) years after the entry of the judgment
...." This court has previously recognized that an
independent action seeking relief pursuant to Rule 60(b)(6)
should be filed within three years after the entry of the
judgment. Spindlow v. Spindlow,
512 So.2d 918, 920 (Ala.Civ.App. 1987)(holding tat "
Rule 60(b)(6) authorizes the filing of an independent action
to relieve a party from a judgment for 'fraud upon the
court' if the independent action is brought within three
years after the entry of the judgment or within the
additional time of two years after the discovery of the fraud
as is now permitted by section 6-2-3 of the Alabama Code of
1975 (1986 Cum. Supp.)" ).
Committee Comments on the 1973 Adoption of Rule 60 state that
" [t]here is little procedural difference between [a
motion and an independent action], and since nomenclature is
unimportant, courts have consistently treated a proceeding in
form an independent action as if it were a motion, and vice
versa, where one but not the other was technically
appropriate, and any procedural difference between them was
immaterial in the case." The Committee Comments,
however, also provide that an " [a]ttack on the judgment
by an independent proceeding, for whatever cause, must be
made within three years after entry of the judgment."
Id. In Faulkner v. Hays, 160 So.3d 329
(Ala.Civ.App. 2014), this court held that
" the Committee Comments to Rule 60 indicate that the
courts will treat a timely filed Rule 60(b)(3) motion and/or
an independent action seeking relief from a judgment on the
basis of fraud as the same in substance such that either a
Rule 60(b)(3) motion or an independent action, whichever is
appropriate given the timing of the filing, may be used to
obtain the same relief, i.e., the setting aside of a judgment
on the basis of fraud in the procurement of that
160 So.3d at 334. We also concluded in Faulkner that the
filing of an independent action under Rule 60(b) does not
excuse " compliance with procedural requirements such as
the payment of a filing fee and service of process of an
independent action." Id. Likewise, as noted
above, when an independent action pursuant to Rule 60(b)(6)
is commenced in lieu of filing a Rule 60(b) motion in the
original case, the rule requires that the independent action
be commenced within three years of the entry of the judgment
being challenged, unless the time for commencing the action
is tolled by § 6-2-3 and § 6-2-8, Ala. Code 1975.
Although the document filed by T.T. was styled as a Rule
60(b) motion, T.T. electronically filed a pleading commencing
an independent action that was separately docketed by the
clerk as a new proceeding. Therefore, T.T. chose to attack
the judgment by an independent action rather than by a motion
filed in the original case.
independent action seeking relief pursuant to Rule 60(b)(6)
was commenced on April 21, 2011, or 3 years and 3 days after
the entry of the April 18, 2011, judgment. The action was
commenced three days beyond the period authorized by the
rule. Therefore, pursuant to the language of Rule 60(b),
T.T.'s independent action attacking the judgment in case
no. CS-95-166.04 under Rule 60(b)(6) was untimely.
" A trial court lacks jurisdiction to consider an
untimely Rule 60(b) motion. See Harris v. Cook, 944
So.2d 977, 981 (Ala.Civ.App. 2006) (holding that the trial
court lacked jurisdiction to entertain a Rule 60(b)(2) motion
that had been brought 15 months after the entry of the
judgment); see also Schneider Nat'l Carriers, Inc. v.
Tinney, 776 So.2d 753, 756 (Ala. 2000)(holding that the
trial court was jurisdictionally barred from granting an
untimely Rule 60(b) motion), and McDonald v. Cannon,
594 So.2d 128, 129 (Ala.Civ.App. 1991)(holding that the trial
court lacked jurisdiction over a Rule 60(b)(1) motion that
had been filed
more than four months after the entry of the judgment)."
Noll v. Noll, 47 So.3d 275, 279 (Ala.Civ.App. 2010).
The trial court lacked jurisdiction to entertain T.T.'s
Rule 60(b)(6) independent action, which was not timely
commenced, and the trial court's August 28, 2014, order
denying T.T.'s requested relief is void. A void judgment
will not support an appeal. Accordingly, we dismiss
T.T.'s appeal with instructions to the trial court to
vacate its order of August 28, 2014.
DISMISSED WITH INSTRUCTIONS.
P.J., and Pittman, J., concur.
J., dissents, with writing, which Moore, J., joins.
respectfully dissent from the dismissal of this appeal.
Although Rule 60(b), Ala. R. Civ. P., provides that a party
may commence an independent action seeking to set aside a
judgment for fraud on the court within three years, I cannot
agree that T.T.'s motion was anything other than an
untimely motion seeking relief from judgment under Rule
60(b). T.T. alleged fraud in his motion; however, he did not
allege fraud on the court. Instead, T.T. alleged only that
the underlying judgment was based on " fraudulent
evidence and testimony." Thus, T.T. alleged that the
judgment was supported by perjured testimony, and "
'[p]erjury is an intrinsic fraud which will not support
relief from judgment through an independent
action.'" Hall v. Hall, 587 So.2d 1198,
1200 (Ala. 1991) (quoting Travelers Indem. Co. v.
Gore, 761 F.2d 1549, 1552 (11th Cir. 1985)).
T.T. argues on appeal that his motion was a Rule 60(b)(6)
motion governed by the reasonable-time requirement.
T.T.'s allegations of perjury and mistake would support
relief from judgment under Rule 60(b)(1) and
(3) and are therefore not sufficient to
support extraordinary relief under Rule 60(b)(6). Motions
seeking relief under either Rule 60(b)(1) or Rule 60(b)(3)
must be filed within four months of the entry of the judgment
being challenged, but motions seeking relief pursuant to Rule
60(b)(6) must be filed within a reasonable time. Ex parte
Branson Mach., LLC, 78 So.3d 950, 957 (Ala. 2011)
(explaining that motions seeking relief pursuant to Rule
60(b)(1)-(3) must be filed within four months of the entry of
the judgment but that Rule 60(b)(6) motions need be filed
only within a reasonable time). Because the categories for
relief under Rule 60(b) are mutually exclusive, T.T.'s
allegations, without proof of aggravating circumstances
relating to the grounds that are cognizable under Rule
60(b)(1), cannot form the basis for a Rule 60(b)(6) motion so
as to escape the requirement that the motion be filed within
four months of the judgment. See Chambers Cnty.
Comm'rs v. Walker, 459 So.2d 861, 865 (Ala. 1984).
As our supreme court has explained:
" Clause (6) ... 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, 229
(Ala. 1994). T.T.'s Rule 60(b) motion sought relief
available under clauses (1) and (3) and failed to allege
aggravating circumstances relating to the grounds that are
cognizable under Rule 60(b)(1) sufficient to entitle him to
relief under Rule 60(b)(6). T.T.'s motion, which was
filed three years and three days after entry of the
underlying judgment, was therefore untimely filed.
T.T.'s Rule 60(b) motion was untimely filed, I would
affirm the trial court's decision to deny that motion.
The trial court stated at the hearing on the motion that it
did not think the motion could be granted because of the
lapse of time between the entry of the underlying judgment
and the filing of the motion. The trial court was correct in
this conclusion, and, therefore, its judgment should be
I agree with the conclusion in the main
opinion that T.T. fails to argue on appeal that his motion
was based on an allegation that the underlying judgment was
void or that he was proceeding under Rule 60(b)(4). Thus, I,
too, decline to consider T.T.'s motion as if it were a
Rule 60(b)(4) motion.