Hocutt v. Hocutt
| Decision Date | 14 May 1986 |
| Parties | Norton E. HOCUTT v. Eunice HOCUTT. Civ. 5086. |
| Court | Alabama Court of Civil Appeals |
Walter Henley of Henley & Shirley, Northport, for appellant.
Jack E. Propst, Kennedy, for appellee.
Husband seeks review of the order granting wife's Rule 60(b), Alabama Rules of Civil Procedure, motion.
The parties were divorced on December 4, 1981, ending a forty-year marriage. The decree provided that the parties were divorced but made no disposition of the parties' property, nor did it provide the wife any alimony.
On October 18, 1982 the wife filed a petition seeking a partition of the parties' real and personal property. She alleged that during the marriage the parties had acquired 781 acres of land, of which 678 were jointly owned, and approximately 103 acres were in the name of the husband only.
The husband answered the wife's petition by denying most of its allegations, and then filed a counterclaim in which he asked for modification of the divorce decree pursuant to Rule 60(b)(6), A.R.Civ.P. This counterclaim sought to have the divorce decree modified to obtain a division of the parties' property.
On August 29, 1983 the wife filed an answer to the husband's counterclaim. She stated that the divorce action should not be reopened to modify the decree because the husband had not produced any evidence which was not available to him prior to the trial of the divorce action.
Thereafter, the court appointed an appraiser to determine the amount of acreage owned by the parties and to assess the value thereof.
After the appraisal was completed, the court held a hearing to review the evidence. Thereafter, on December 18, 1983, the court entered a final judgment granting the husband's counterclaim and ordering that the original divorce decree be reopened and modified to provide for an equitable division of the property of the parties pursuant to Rule 60(b)(6). As a result of this order, the husband was awarded a total of 543 acres and the wife was awarded a total of 242 acres.
On April 1, 1985 the wife filed a motion to have the 1983 final judgment set aside. In addition to other allegations, the wife alleged that the judgment was void because the trial court did not have the authority to reopen and modify the divorce decree to make a property division. She also alleged that she had been misled as to the terms of the 1983 judgment and was without full understanding of the terms contained therein.
After hearing ore tenus evidence, the court granted the wife's motion, ordering that the 1983 order be set aside. It is from this order that the husband appeals. The husband has also filed a petition for mandamus and asked this court to determine which method of review is proper.
The general rule is that a judgment granting a Rule 60(b) motion is interlocutory and not appealable. Ex parte Short, 434 So.2d 728 (Ala.1983). We have previously held, however, that "when the motion to set aside is granted upon the ground that the original judgment was void for want of jurisdiction or authority, the grant of the motion finally disposes of the case and should be appealable." Littlefield v. Cupps, 371 So.2d 51 (Ala.Civ.App.1979) (citation omitted). As such, the decision of the trial court will be disturbed only if it was a product of abuse. Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976).
In the instant case the final order granting the 60(b) motion does not state the grounds upon which relief was granted. However, several grounds were raised in the motion itself, and if one of those grounds supports the court's order it will be upheld. Boles v. Hooper & McDonald, Inc., 424 So.2d 634 (Ala.Civ.App.1982).
One of the asserted grounds for Rule 60(b) relief was that the 1983 judgment was void for lack of jurisdiction. Our task is to determine if this is so.
As noted above, the original divorce decree made no disposition of the parties' property, nor did it reserve any authority to do so at a later date. In other words, the case had been completely disposed of and was no longer pending in the trial court.
Approximately ten months after the parties were...
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Smith v. Shannon Cahill.
...26 So.3d 1210, 1219 n. 2 (Ala.Civ.App.2007); see also Smith v. Smith, 892 So.2d 384, 389 (Ala.Civ.App.2003), and Hocutt v. Hocutt, 491 So.2d 247, 249 (Ala.Civ.App.1986). However, a divorce judgment dividing marital property between the parties is not subject to modification, except for cler......
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Stender v. Stender
...loses jurisdiction to modify a property division in a divorce judgment 30 days after the entry of the judgment. Hocutt v. Hocutt, 491 So.2d 247, 248 (Ala.Civ.App.1986). This court has held, however, that if the provisions of a property settlement are vague or ambiguous, a judgment interpret......
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Smith v. Cahill
...that, in and of itself, disposes of the issue, and title to the property is left undisturbed by the judgment.’ “Hocutt v. Hocutt, 491 So.2d 247, 249 (Ala.Civ.App.1986). See also Dominex, Inc. v. Key, 456 So.2d 1047, 1059–60 (Ala.1984).”Smith v. Smith, 892 So.2d 384, 389 (Ala.Civ.App.2003). ......
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Laymon v. Laymon (Ex parte Laymon)
...loses jurisdiction to modify a property division in a divorce judgment 30 days after the entry of the judgment. Hocutt v. Hocutt, 491 So. 2d 247, 248 (Ala. Civ. App. 1986). This court has held, however, that if the provisions of a property settlement are vague or ambiguous, a judgment inter......