No “Exceptional Circumstances” Justified Granting Motion Under Rule 60(b)(6); Appeals Did Not Preclude Timely 60(b)(1) Filing

A father’s error in appealing from a void judgment in a custody dispute did not raise “exceptional circumstances” that would warrant granting his motion under Rule 60(b)(6). Nor did the parties’ cross-appeals prevent the father from filing a timely Rule 60(b)(1) motion. The Court of Civil Appeals denied the father’s application for rehearing, thus affirming the denial of his post-judgment motion. Hobbs v. Heisey, No. 2070085 (Ala. Civ. App. Aug. 29, 2008).

The Court of Civil Appeals had earlier affirmed the denial of the father’s post-judgment motion under Rule 60(b) as untimely. See Hobbs v. Heisey, No. 2070085 (Ala. Civ. App. July 3, 2008). On application for rehearing, the father argued that, though “based on grounds more appropriately addressed under Rule 60(b)(1),” his motion was due to be granted for “exceptional circumstances” under Rule 60(b)(6). He contended “that he could not have filed a Rule 60(b)(1) motion in the trial court within the four-month deadline set out in Rule 60(b) because” the parties “had divested that court of jurisdiction by filing notices of appeal during that period.”

The appellate court rejected this argument. “Had the father filed a Rule 60(b)(1) motion before the appeals had been filed,” the court observed, “the trial court would have had jurisdiction to rule on that motion.” “Further, even after the notices of appeal had been filed, the father could have sought leave from this court to file a Rule 60(b)(1) motion.” The motion would have been deemed filed in the trial court on the day the motion for leave was filed with the appellate court. Therefore, there were no “exceptional circumstances that would justify treating his motion as a Rule 60(b)(6) motion.” The father’s application for rehearing was accordingly overruled.