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In re Nathan C.
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Decision:1998 ME 242
on Briefs:October 14, 1998
Decided:	November 9, 1998




	[¶1]  The father of Nathan C. appeals from the order of the Superior
Court (Knox County, Marsano, J.) affirming the denial of his motion for relief
from judgment by the District Court (Rockland, Westcott, J.).  Because the
father's motion was expressly based upon an untimely claim of newly
discovered evidence, we affirm the judgment.
	[¶2]  In 1994, the District Court found Nathan C. to be in jeopardy
following a child protection hearing and placed him in the custody of the
State of Maine Department of Human Services.  In 1997, the father filed a
motion for relief from that judgment pursuant to M.R. Civ. P. 60(b).  M.R. Civ.
P. 60(b) states:
On motion and upon such terms as are just, the court may
relieve a party or the 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); (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 motion shall be made within a reasonable time,
and for reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken.
M.R. Civ. P. 60(b).
	[¶3]  The father candidly acknowledged in his motion that it was
brought pursuant to the catchall provision in subsection (6) of M.R. Civ. P.
60(b) because the newly discovered evidence upon which the motion was
based was discovered after the one year deadline for subsection (2).  As we
have suggested on other occasions, the first three subsections of M.R. Civ. P.
60(b) are mutually exclusive from the last.  See Sargent v. Sargent, 1997 ME
38, ¶ 12, 691 A.2d 184, 188 ("'Relief from judgment may be granted under
subsection 3 for fraud, misrepresentation, or misconduct of the adverse
party, and under subsection 6 for any other reason justifying relief from the
operation of the judgment.'" (emphasis added) (quoting Merrill v. Merrill,
449 A.2d 1120, 1125 (Me. 1982))).{1}
	[¶4]  Because the father's motion was based solely on newly discovered
evidence and was untimely pursuant to subsection (2), it presented no
cognizable claim for relief pursuant to subsection (6).  Even though the court
denied the motion for reasons other than those set forth in this opinion, it
committed no reversible error.
	The entry is:
			Judgment affirmed.

Attorney for appellant: William F. Pagnano, Esq. 4 Winter Street Rockland, ME 04841 Attorneys for appellee: Andrew Ketterer, Attorney General Sally H. DeMartini, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Constance Hall, Esq. P O Box 111 Warren, ME 04864
FOOTNOTES******************************** {1} The first three subsections of Fed. R. Civ. P. 60(b), which is substantially similar to M.R. Civ. P. 60(b), have been interpreted to be mutually exclusive from the last. See Brandon v. Chicago Bd. of Educ., 143 F.3d 293, 295 (7th Cir. 1998) ("'Inherent in the structure of Rule 60(b) is the principle that the first three clauses and the catchall clause are mutually exclusive.'" (citation omitted)); Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993).