Tichansky v. Tichansky

Decision Date06 November 1974
Citation54 Ala.App. 209,307 So.2d 20
PartiesAlan Ivan TICHANSKY v. Susan Ovson TICHANSKY. Civ. 353.
CourtAlabama Court of Civil Appeals

B. G. Minisman, Jr. and R. Clifford Fulford, Birmingham, for appellant.

Sirote, Permutt, Friend & Friedman and James A. Harris, Jr., Beddow, Embry & Beddow and J. Scott Vowell, Birmingham, for appellee.

HOLMES, Judge.

This is an appeal from the Circuit Court of Jefferson County denying relief to appellant on his petition filed pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure.

Rule 60(b) provides in parts pertinent to this appeal as follows:

'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . .; or (6) any other reason justifying relief from the operation of the judgment. . . .'

Appellant and appellee were married in 1968 and have two children. Appellant received his degree in architecture from the University of Oklahoma in 1968. He took and passed the Alabama Architectural Board of Examiners in 1972. He is currently employed by Fred Renneker and Associates in Birmingham at a salary of $5.25 an hour. At the time of this appeal, and also the original divorce decree, he was in the Air National Guard and was paid for such service $64.84 gross and $55.78 net a month. He also 'moonlighted' on several jobs outside his regular employment. The record indicates that appellant nets approximately $735 per month, excluding monies received from his extra architectural jobs.

Under the terms of the divorce decree, which incorporated the agreement of the parties, appellee received custody of the two children. Appellant was ordered to pay appellee $500 per month as alimony and child support. Appellant is also responsible for paying reasonable medical expenses incurred by the children; for providing the children with a college education and also for maintaining a $30,000 life insurance policy payable to appellee. Additionally, appellant will have to pay appellee, as alimony, 25 percent of any 'net increase' in appellant's income if the 'net increase' comes from Fred Renneker, Jr. and Associates. Under no circumstances, however are the the total payments to exceed $1,000 per month.

Within four months of the entering of the decree, but after the time for a new trial motion or appeal had expired, appellant brought his action under Rule 60(b) of the Alabama Rules of Civil Procedure.

Appellant's motion for relief under Rule 60(b) alleges that he and his former wife contacted an attorney regarding a divorce; that appellant was under the impression that the attorney represented both him and his former wife when, in fact, the attorney was representing only his former wife; that an agreement regarding child support and alimony was signed and incorporated into the divorce decree; that this agreement was signed by him because of his anxiety to conclude the matter amiably; and that he made a mistake in agreeing to the terms of the agreement which impose conditions upon him which he 'now knows he cannot meet and which resulted from mistake, inadvertence and excusable neglect.' Appellant then asked the trial court to relieve the appellant from the agreement.

A hearing was had and the motion was submitted on the depositions of the parties and an attorney, affidavits and stipulation. The trial court denied the relief prayed for, and from this action appeal was taken to this court.

Appellant contends on appeal that the trial court erred in failing to afford him relief on two grounds. The first of these is bottomed on Rule 60(b)(1).

Appellant argues that he entered into the agreement which committed him to pay $500 a month out of the $735 salary he receives as a result of mistake, inadvertence, or excusable neglect. This mistake allegedly arises by reason of appellant relying on the attorney to fairly represent his best interest when the attorney, in fact, represented the appellee.

Appellant's second ground of relief is based on the 'any other reason justifying relief' clause of Rule 60(b)(6). This contention is bottomed on the alleged inequity of the decree itself which gives appellee $500 of appellant's present monthly net pay of approximately $735.

To this court, in this instance, the facts fail to show any mistake, inadvertence, surprise, or excusable neglect as contemplated by Rule 60(b) which would afford appellant relief. What they do show is that appellant voluntarily and willingly signed the divorce agreement. In fact, not only was it decided that appellee would receive $500 a month before an attorney was consulted, but appellant himself suggested that he pay $500 a month. As for the provision providing that 25 percent of any additional...

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19 cases
  • Ex parte W.J.
    • United States
    • Alabama Supreme Court
    • June 11, 1993
    ...60(b)(6) is not granted for the purpose of relieving a party from free, calculated, and deliberate choices. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20 (Ala.Civ.App.1974), cert. denied, 293 Ala. 775, 307 So.2d 24 The trial testimony by W.J. and the social worker who handled G.J.'s......
  • March v. Stringer
    • United States
    • Alabama Supreme Court
    • October 2, 1987
    ...Rule 60(b)(6) is not intended to relieve a party from the free, calculated, and deliberate choices he has made. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20 (1974), cert. denied, 293 Ala. 775, 307 So.2d 24 Finally, the fact that the defendant may have possessed a meritorious defens......
  • Smith v. Clark
    • United States
    • Alabama Supreme Court
    • March 29, 1985
    ...Rule 60(b)(6) is an extreme and powerful remedy and should be resorted to only under extraordinary circumstances. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20 (1974), cert. denied, 293 Ala. 775, 307 So.2d 24 (1975). Accordingly, Judge Beasley's action in refusing the 60(b)(6) motio......
  • Nelson v. Nelson
    • United States
    • Alabama Court of Civil Appeals
    • September 9, 1981
    ...the lack of separate counsel for her, in this instance, was not grounds for vacating or altering the decree. See Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20, cert. denied, 293 Ala. 775, 307 So.2d 24 In light of the above, we cannot hold the trial court erred in denying either the ......
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