Scott Christopher Hobbs v. Dorarena Kay Heisey
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REL: 08/29/2008 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM 2008 _________________________ 2070085 _________________________ Scott Christopher Hobbs v. Dorarena Kay Heisey Appeal from Madison Circuit Court (DR-99-1631.02) On Application for Rehearing MOORE, Judge. On application for rehearing, Scott Christopher Hobbs ("the father") argues that this court should have held that, although his Rule 60(b)(6), Ala. R. Civ. P., motion was based 1 2070085 on grounds more appropriately addressed under Rule 60(b)(1), his motion was circumstances." due to be granted due to "exceptional See Ex parte Birmingham Airport Auth., 678 So. 2d 757 (Ala. 1996). The father contends 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 both he and Dorarena Kay Heisey ("the mother") had divested that court of jurisdiction by filing notices of appeal during that period. Thus, he argues, his only avenue of relief was under Rule 60(b)(6). We reject that argument. Had the father filed a Rule 60(b)(1) motion before the appeals had been filed, the trial jurisdiction to rule on that motion. court would have had Harville v. Harville, 568 So. 2d 1239, 1241 (Ala. Civ. App. 1990). 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. Id. Had this court granted leave, the motion would have been deemed filed in the trial court on the date the motion to leave was filed with this court. Rule 60(b), Ala. R. Civ. P. In either case, the father could have timely filed his Rule 60(b)(1) motion; therefore, there are no exceptional 2 2070085 circumstances that would justify treating his motion as a Rule 60(b)(6) motion. Further, in the father's brief in support of his application for rehearing, he states that "this Court has recognized that he should have been afforded relief from the judgment, albeit under Rule 60(b)(1)." not so hold. father's We note that we did Instead, this court merely recognized that the motion would have been more appropriately characterized as a Rule 60(b)(1) motion for relief from judgment. We expressed no opinion as to whether the father would have ultimately prevailed if he had filed a timely motion pursuant to that subsection. For the foregoing reasons, we overrule the application for rehearing. APPLICATION OVERRULED. Thompson, P.J., and Pittman, Bryan, and Thomas, JJ., concur. 3
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