McGee v. Bevill

111 So.3d 132

Charles McGEE

v.Karen McGee BEVILL.

2101209.

Court of Civil Appeals of Alabama.

June 29, 2012.

Certiorari Denied Nov. 9, 2012

Alabama Supreme Court 1111307.

Charles McGee, pro se.

Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellee.

On Application for Rehearing

MOORE, Judge.

This court's opinion of April 20, 2012, is withdrawn, and the following is substituted therefor.

Charles McGee (“the former husband”) appeals from a judgment of the DeKalb Circuit Court (“the trial court”) granting a Rule 60(b), Ala. R. Civ. P., motion filed by Karen McGee Bevill (“the former wife”) and awarding her an interest in certain real property. We dismiss the appeal.

Facts and Procedural History

According to the former wife, the former husband purchased certain real property located in Fort Payne (“the subject property”) at a land-sale auction in 1990, while the parties were still married, and, she says, he came home from the auction, informed her that he had purchased the subject property, and drove her by the subject property. The former wife testified that the former husband informed her that he had paid $205,000 for the subject property and that “David Hammonds would be in on it.” The former wife stated that the subject property adjoins property owned by Irby Harris and is located next to Interstate 59.

The former wife testified that she and the former husband separated in 1994. She admitted as evidence a portion of the former husband's deposition, taken on June 28, 1994, pursuant to the parties' divorce action, in which the former husband testified, in response to questions by the former wife's attorney, that he did not have “some property adjoining an Irby Harris.” He stated in his deposition that he had gone into a venture with David Hammonds to purchase property, that he had never completed the transaction, and that the property had never been purchased. The former wife testified that her attorney had been referring to the subject property when questioning the former husband during his deposition. According to the former wife, after the former husband's deposition was taken, she visited the probate office and discovered that no deed had been recorded transferring the subject property to the former husband. The former wife testified that there was no mention during the divorce trial of the subject property.

On June 14, 1996, the trial court entered a divorce judgment divorcing the former wife and the former husband; among other things, that judgment stated:

“The Court finds that all real property titled in the name of Charles A. McGee, individually or jointly with his Former Wife, Karen E. McGee, is marital property subject to equitable division thereof according to the laws to the State of Alabama in the discretion of this Court. The Court has fashioned the property division provided for herein in the manner determined by the Court to be protective of the Former Wife, the minor children including their homestead; to conclude this matter within a reasonable time; and, to avoid continued controversies over the property acquired during the marriage of the parties.”

The divorce judgment awarded the former wife an interest in several specified parcels of real property, but it did not list the subject property. The divorce judgment awarded the former husband “all other real property titled in his name individually or jointly with [the former wife].”

According to the former wife, in 2006, her father telephoned her and informed her that a story on the front page of the Fort Payne Times–Journal, the local newspaper, indicated that the former husband had presented a deed for the subject property; that story, submitted as evidence by the former wife, was published on January 26, 2006. The former wife also submitted as evidence a copy of the deed, which was executed on September 10, 1990, and signed by David Hammonds, conveying a one-half interest in the subject property to the former husband. The deed was recorded on January 23, 2006.

On February 6, 2006, the former wife filed a complaint in the trial court requesting, among other things, that the trial court partially set aside the parties' divorce judgment and award her an equitable interest in the subject property or any proceeds derived from the sale of the subject property, pursuant to Rule 60(b), Ala. R. Civ. P. On March 24, 2006, the former husband filed an answer to the former wife's complaint, asserting, among other things, that the action was barred by the statute of limitations, that the action was time-barred by Rule 60(b), that the former wife had been aware of his ownership in the subject property at all times, that he had referred to an unrelated negotiation in his deposition during the parties' divorce case, and that he had never denied his interest in the subject property.

The DeKalb circuit-court judges recused themselves from hearing the present case based on the former husband's having practiced for years as an attorney before them.¹ On October 18, 2006, the Chief Justice of the Alabama Supreme Court assigned the case to Allen Millican, the presiding circuit judge of Etowah County.² On August 18, 2010, the former wife filed a motion requesting the trial court to set the case for a trial; in that motion, the former wife indicated that, in an unrelated action, the DeKalb Circuit Court had declared the former husband “to have an undivided one-half interest in the real property which is the subject of this litigation” and that that judgment was final.

The trial court conducted a trial in Gadsden, which is located in Etowah County, on August 4, 2011; the former husband did not attend. On August 8, 2011, the trial court entered a judgment that stated, in pertinent part:

“1. The Court finds that the [former husband] fraudulently misrepresented and fraudulently concealed his ownership interest in the real property described in the deed attached as Exhibit A to this Judgment (‘the subject property’) during the divorce proceedings between the parties in the Circuit Court for DeKalb County, Alabama, Case No. DR–94–098 (‘the divorce case’), in order to avoid an equitable division of this marital property in the divorce. The [former husband's] fraud during the divorce, together with his failure to record his 1990 deed to the subject property until January 2006, prevented the [former wife] from discovering [his] fraud until that date, at which time the [former wife] immediately filed her Complaint.

“2. It appearing that the [former husband's] fraud prevented the Court in the divorce case from making an equitable division of the subject property, the Court hereby grants the relief requested by [the former wife] in her complaint and divides said property equally between the [former wife] and the [former husband]. [The former wife] is hereby awarded an undivided one-half interest in the [former husband's] undivided one-half interest in the subject property, and any provision of the judgment in the divorce case which could be construed to have awarded this property to the [former husband] during the divorce is declared of no effect.

“3. In aid of this Judgment, the Clerk or Register of DeKalb County, Alabama, is ordered to execute a Clerk's or Register's Deed conveying an undivided one-half interest in the [former husband's] undivided one-half interest in the subject property to the [former wife]....”

The trial court denied all other relief requested by the parties and taxed costs against the former husband.

On September 19, 2011, the former husband filed a notice of appeal to this court. Also on September 19, 2011, the former husband purported to file a “motion to alter, vacate or amend and motion for new trial” under Rule 60(b).³

Discussion

The former husband raises two issues on appeal. First, he asserts that the trial court erred in granting the former wife's motion to amend or modify the parties' divorce judgment “due to the fact that the undisputed evidence was that the action was not timely filed as alleged in the answer filed in response to the complaint and was not the type of fraud to accord relief under the facts.” ⁴ Second, he argues that the judgment is void because the trial court held the trial outside DeKalb County. We pretermit consideration of the second issue because we find the first issue dispositive.

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: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.... 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 court.”

The former wife filed an independent action seeking relief from the judgment. She asserts that the former husband committed “fraud upon the court” by perjuring his testimony to lead the former wife to believe that he had not acquired an interest in the subject property during their marriage.

In Hall v. Hall, 587 So.2d 1198 (Ala.1991), this court stated:

“ ‘Fraud on the court’ has been defined as ‘fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.’ 7 J. Moore, Moore's Federal Practice § 60.33 (2nd ed.1990). Such fraud must be ‘extrinsic,’ that is, perpetrated to obtain the...