McLeod v. McLeod
McLeod v. McLeod
Opinion
This is an appeal from a denial of a motion for relief under Rule 60 (b) of the Alabama Rules of Civil Procedure.
The trial court divorced the parties on May 18, 1982. Custody of the two children was awarded to the wife. As part of the divorce decree, the husband was to provide $65.00 per week for child support and maintenance, as well as maintain in full force and effect hospitalization insurance on the minor children.
Since the date of the divorce decree, two writs of garnishment have been issued against the husband's employer. The first writ was issued on November 4, 1983, for $446.47, $325.00 of which was for child support arrearages. The second writ was issued on April 16, 1984, for $5,615.00, $260.00 of which was for child support arrearages and $1,830.00 for a debt on orthodontic bills.
Husband's motion to set aside the second garnishment was denied by the trial court on July 2, 1984. On November 1, 1984, the husband moved to set aside this order alleging mistake under Rule 60 (b)(1), A.R.Civ.P. On November 2, 1984, the husband also filed a motion to modify the divorce decree as to custody, a motion to modify divorce decree and for relief from garnishment proceeding, and a motion for Rule Nisi.
After an ore tenus hearing on all of these motions, the trial judge issued an order awarding custody of one of the two children to the husband, and reducing the child support payments to $35.00 per week. The court further ordered that "all other prior orders of the Court not hereinabove amended shall remain in full force and effect." The husband appeals the denial of his Rule 60 (b)(1) motion.
We first note that Rule 60 (b) is an extreme remedy to be used only under extraordinary circumstances. See Snowden v.United Steelworkers of America,
To obtain relief under Rule 60 (b), one must allege and prove one of the grounds enumerated in the rule as well as a meritorious defense to the action. See Frazier v. Malone,
In his motion under Rule 60 (b), the husband alleges only one ground for relief, that of mistake under 60 (b)(1). Various grounds are asserted as support of this allegation.
Husband's first assertion is that the trial court erred by ignoring evidence that the amount of child support arrearage included in the garnishment should have been much less than the amount needed. He asserts that, as a matter of law, payments made directly to the custodial parent should be used to offset the amount of the judgment. The husband's argument must fail. A mistake of law is not mistake, inadvertence, surprise or excusable neglect as embodied in Rule 60 (b)(1), A.R.Civ.P.City of Birmingham v. City of Fairfield,
Husband next argues that the trial court erred in concluding that the divorce decree made appellant solely responsible for the payment of orthodontic bills. Again, the husband's argument must fail. The interpretation of a decree is left to the trial judge. See Hurd v. Hurd,
Husband further contends that, even if found responsible for the orthodontic bills, the trial court erred in not reducing the amount of the judgment because of "newly discovered" evidence that the orthodontist had reduced the amount of the debt upon which the judgment was based. We note that this argument seems to have been raised for the first time on appeal. This court need not entertain issues not raised below.See Blackmon v. R.L. Zeigler Co.,
Finally, we note that the husband has attempted to assert in brief that his rights under the fifth and fourteenth amendments to the United States Constitution have been denied. These issues are *Page 1100
not delineated under the appellant's statement of issues as prescribed by Rule 28 of the Alabama Rules of Appellate Procedure. Although assignments of error have been abolished, it is still the appellant's burden to adequately delineate the issues upon which review is to be based. McNeill v. McNeill,
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.
Reference
- Full Case Name
- John Alex McLeod v. Glenda McLeod.
- Cited By
- 33 cases
- Status
- Published