Faulkner v. Hays

160 So.3d 329

Shanna Renae Hays FAULKNER

v.Brandon Gregory HAYS.

2130456.

Court of Civil Appeals of Alabama.

Aug. 8, 2014.

Trey J. Malbrough of the Malbrough Firm LLC, Birmingham, for appellant.

Submitted on appellant's brief only.

Opinion

THOMPSON, Presiding Judge.

On November 15, 2010, Shanna Renae Hays Faulkner (“the mother”) filed a petition in the Jefferson Circuit Court (“the trial court”) against Brandon Gregory Hays (“the father”). The parties were divorced pursuant to a February 26, 2002, judgment of the trial court. Pursuant to that divorce judgment, the father was ordered to pay $528 per month in child support for the parties' minor child. A September 8, 2009, judgment (“the September 2009 judgment”) modified the father's child-support obligation to require him to pay $169 per month in child support and $304 per month toward a $9,115.86 accumulated child-support arrearage. The father answered the mother's November 15, 2010, petition in this action, and he sought to have the mother held in contempt with regard to a visitation issue.

On October 29, 2012, the mother moved to amend her petition to modify. In that amended petition, the mother requested that the earlier judgments be modified to include a provision addressing the responsibility of each party to pay a portion of the child's medical expenses not covered by health insurance.

The next day, on October 30, 2012, the mother filed a motion, purportedly pursuant to Rule 60(b), Ala. R. Civ. P., in which she alleged that the father had committed fraud upon the court in the modification action resulting in the September 2009 judgment. In support of that October 30, 2012, motion, the mother submitted e-mails indicating that, in 2009, the father and his employer, Tarrant Hydraulic Service, LLC (“Tarrant Hydraulic”), falsely represented the father's income so as to reduce the amount of child support for which the father could be found to be responsible in the then pending modification action. The mother submitted an e-mail between employees of Tarrant Hydraulic dated August 7, 2009, and addressed to “To Whom it May Concern,” that stated: “This letter verifies that [the father], an employee of Tarrant Hydraulic, was hired at the rate of $13 per hour on July 27, 2009.” The September 2009 modification judgment was presumably based on that stated income.

In support of her October 30, 2012, motion, the mother also submitted a copy of a September 28, 2009, internal e-mail from a Tarrant Hydraulic employee to Tarrant Hydraulic's general manager that stated:

“[The father] made $21.40 and had a gas card and truck. He came back going in tool box for $22.50, he asked me to pay him $13 for a while for lawyer reasons. He is now ready for regular pay. I told him it would take a couple of weeks because of the process it goes through. If you don't mind, pass the word along to Barbara about the change of pay. I can bring it up at manager's meeting tomorrow for vote if that is proper protocol.”

The Tarrant Hydraulic general manager responded to that e-mail, saying: “I will forward to Barb that it is ok. We will also discuss at the Manager's meeting also!” Handwritten notations on the copy of the e-mail the mother alleges she received from Tarrant Hydraulics in response to a discovery request read: “set up 9–25–09,” “to get out of full child support,” and “had it [illegible] ask for original note.”

In her October 30, 2012, motion, the mother stated that she was seeking relief from the September 2009 judgment as an “independent action.” In that motion, she sought to set aside the September 2009 judgment and to obtain a retroactive award of child support based on the father's true income. The father later filed an amended answer denying the material allegations of the amended petition and a separate, December 14, 2012 “objection” to the mother's October 30, 2012, motion. The mother also filed a November 5, 2012, motion seeking an increase in pendente lite child support, and the trial court scheduled that motion for a hearing. On December 21, 2012, the father moved to dismiss the mother's October 30, 2012, “Rule 60(b)(3) ” motion.

The trial court entered orders scheduling all pending motions for trial. On March 6, 2013, the trial court entered an order on the mother's motion for pendente lite relief. The trial court ordered the father to pay $514.92 per month in pendente lite child support and specified that the parties were equally responsible for the payment of any of the child's medical expenses not covered by health insurance.

On April 19, 2013, the mother again moved to amend her pleadings, alleging that the father had failed to pay pendente lite child support pursuant to the March 6, 2013, order and that the father had failed to properly notify her of a change in his principal residence. The trial court granted the mother's motion to amend.

On May 7, 2013, the father renewed his motion to dismiss the mother's October 30, 2012, motion seeking relief from the September 2009 judgment. The father also moved for an award of immediate summer visitation and sought to have the mother held in contempt for denying him that visitation. On December 17, 2013, the father filed another motion to dismiss the mother's October 30, 2012, motion in which he argued, for the first time, that the mother was required to pay a filing fee in support of that motion.

On January 16, 2014, the trial court entered an order granting the father's motion to dismiss the mother's October 30, 2012, motion. The mother timely appealed. The father has not favored this court with a brief on appeal.

In her October 30, 2012, motion, the mother alleged that she was entitled to relief from the September 2009 judgment because of what she said was the father's fraud in allegedly arranging with his employer to suppress the true amount of his gross income until after the resolution of the child-support-modification action pending at that time.¹ Thus, the mother argued in that motion that she sought relief from the September 2009 judgment on the basis of fraud, purportedly pursuant to Rule 60(b)(3). Rule 60(b), Ala. R. Civ. P., allows a party to seek relief from a judgment under certain circumstances:

“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 father argued that the mother's October 30, 2012, motion was not timely filed under Rule 60(b).² Rule 60(b) specifies that relief sought pursuant to Rule 60(b)(1), (2), or (3) must be requested “not more than four (4) months” after the judgment sought to be set aside. It is clear that the mother's October 30, 2012, motion was filed well in excess of four months following the entry of the September 2009 judgment. However, Rule 60(b) also states:

“This rule does not limit the power of the 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 [governing the statute of limitations in actions seeking relief on the ground of fraud] 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 court.”

Rule 60(b) (emphasis added).

The record also demonstrates that the mother's October 30, 2012, motion was filed in excess of three years following the entry of the September 2009 judgment. However, the time for filing an independent action for relief from a judgment based on the ground of fraud may be further tolled under § 6–2–3, Ala.Code 1975, which statute provides that a fraud claim accrues upon the discovery of the alleged fraud and that an action must be filed within two years of that discovery. Taylor v. Newman, 93 So.3d 108, 114 (Ala.Civ.App.2011). See also Waldrop v. Waldrop, 395 So.2d 60, 61 (Ala.Civ.App.1980) (“[A]n independent action under Rule 60(b) must be brought within three years after entry of a judgment or [two years] after discovery of any fraud....”); and Shires v. Shires, 471 So.2d 437, 439 (Ala.Civ.App.1985) (same). Our supreme court has stated that the provision in Rule 60(b) recognizing a court's power to entertain an independent action “is not an affirmative grant of power but merely allows continuation of whatever power the court would have had to entertain an independent action if the rule had not been adopted.” Brice v. Brice, 340 So.2d 792, 795 n. 2 (Ala.1976) (citing Simons v. United States, 452 F.2d 1110 (2d Cir.1971) ). Further, this court has noted that the provision in Rule 60(b) recognizing the power of the court to entertain an independent action for relief from a judgment on the basis of fraud

“continues whatever power the court would have had to entertain an independent action if the rule had not been adopted.... Thus, the trial court has inherent power to afford relief from a judgment because of supervening invalidity based on fraud practiced on the court by a party in the procurement of the judgment.”

Denton v. Sanford, 383 So.2d 847, 848–49 (Ala.Civ.App.1980).

The mother has argued, both before the trial court and before this court, that her October 30, 2012, motion constituted a new, independent action, both because of the timing of the filing of the motion and because...