Barbara Brown v. Ernest Brown (Appeal from Jefferson Circuit Court: DR-21-901253).

Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

CL-2023-0324
_________________________

Barbara Brown

v.

Ernest Brown

Appeal from Jefferson Circuit Court
(DR-21-901253)

HANSON, Judge.

Barbara Brown ("the wife") appeals from a judgment entered by the

Jefferson Circuit Court ("the trial court") divorcing her from Ernest

Brown ("the husband"). For the reason set forth below, we reverse the
CL-2023-0324

denial by operation of law of the mother's postjudgment motion and

remand the cause for the trial court to conduct a hearing on that motion.

The parties were married on January 20, 2000. No children were

born of the marriage. The parties separated on June 21, 2021. On July

21, 2021, the husband filed a complaint seeking a divorce and an

equitable division of the marital property. On August 19, 2021, the wife

filed an answer and a counterclaim, seeking a divorce and an equitable

division of the marital property. On August 20, 2021, the husband filed

a reply to the wife's counterclaim. During the pendency of the action,

the wife filed a motion for contempt and later renewed her motion,

alleging that the husband, after filing the divorce complaint, had

improperly disrupted the financial status quo of the parties.

On September 12, 2022, the trial court conducted a hearing. At the

beginning of the hearing, the wife reminded the trial court of her pending

contempt motion and her renewal of that motion. The wife also moved

for a finding of contempt regarding the husband's alleged failure to

provide requested discovery that included certain financial documents

and life insurance policies. The husband responded that he had produced

the requested information to the wife's original counsel, as well as to her

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current counsel. He further stated that he had not provided any

information about a life-insurance policy because he did not own a life-

insurance policy. The trial court indicated that it would consider the

pending motions during the hearing, and the hearing followed with the

presentation of evidence. After considering the evidence presented at the

hearing, the trial court, on December 12, 2022, entered a final judgment

that divorced the parties, divided the marital property, and denied the

wife's motions for contempt.

On January 4, 2023, the husband filed a postjudgment motion. On

January 9, 2023, the trial court entered an order setting the husband's

postjudgment motion for a hearing on February 13, 2023. On January

11, 2023, the wife, acting pro se, filed a postjudgment motion, arguing

that the trial court's property award was inequitable because it had not

awarded her a portion of the husband's investment retirement account

and that the trial court had exceeded its discretion by not awarding her

periodic alimony. While the postjudgment motion was pending, the trial

judge, who entered the final judgment, vacated her judgeship, and a new

trial judge assumed that position. On February 13, 2023, the wife's new

counsel filed a notice of appearance. That same day the trial court

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conducted a hearing to address the husband's postjudgment motion. The

wife's new counsel, who had been retained that day, asked the trial court

for a continuance. After discussion between the trial court and the

parties' counsel, the trial court continued the husband's motion. On

February 17, 2023, the wife, although represented by counsel, acted pro

se and filed an amended postjudgment motion. In that motion, the wife

alleged that after the final judgment was entered, she learned that the

husband did not disclose, during discovery or at trial, new information

revealing investment accounts owned by the husband the contents of

which she said were marital assets and subject to division. She further

alleged that she had discovered new, additional information regarding

the value of the husband's companies that the trial court should consider.

The wife attached to her motion copies of financial documents that, she

said, had not been produced before the final hearing. At the close of her

postjudgment motion, the wife asked the trial court to amend the

judgment "based on perjury and fraud perpetrated upon the court by [the

husband,] and that additional testimony be taken regarding newly

discovered information regarding [the husband's] assets." The trial court

did not enter an order setting the wife's postjudgment motion for a

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hearing. The parties' postjudgment motions were denied by operation of

law. On May 12, 2023, the wife filed a notice of appeal.

On appeal, the wife contends that the trial court exceeded its

discretion by failing to conduct a hearing on her postjudgment motion.

" 'Generally, when a party requests a hearing on a
postjudgment motion [filed pursuant to Rule 59], the court
must grant that request.' Mobile Cnty. Dep't of Human Res.
v. C.S., 89 So. 3d 780, 784 (Ala. Civ. App. 2012). Rule 59(g),
Ala. R. Civ. P., provides that a postjudgment motion 'shall not
be ruled upon until the parties have had opportunity to be
heard thereon.' We have also held that,

" '[a]lthough it is error for the trial court not
to grant such a hearing, this error is not
necessarily reversible error. For example, if an
appellate court determines that there was no
probable merit to the motion, it may affirm based
on the harmless-error rule. See Rule 45, Ala. R.
App. P.; and Kitchens v. Maye, 623 So. 2d 1082,
1088 (Ala. 1993)("failure to grant a hearing on a
motion for new trial pursuant to Rule 59(g) is
reversible error only if it 'probably injuriously
affected substantial rights of the parties' ").'

"Flagstar Enters., Inc. v. Foster, 779 So. 2d 1220, 1221 (Ala.
2000).

" ' " 'Harmless error occurs, within the context of a
Rule 59(g) motion, where there is either no
probable merit in the grounds asserted in the
motion, or where the appellate court resolves the
issues presented therein, as a matter of law,
adversely to the movant, by application of the

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same objective standard of review as that applied
in the trial court.' " '

"DWOC, LLC v. TRX Alliance, Inc., 99 So. 3d 1233, 1236 (Ala.
Civ. App. 2012)(quoting Kitchens v. Maye, 623 So. 2d 1082,
1088-89 (Ala. 1993), quoting in turn Greene v. Thompson, 554
So. 2d 376, 381 (Ala. 1989))."

House v. House, 185 So. 3d 1112, 1117-18 (Ala. Civ. App. 2015).

The husband argues that the wife did not request a hearing on her

postjudgment motion. Admittedly, the wife did not expressly ask the

trial court for a hearing to address the merits of her motion; however, the

wife, by asking "that additional testimony be taken regarding newly

discovered information regarding [the husband's] assets," in substance

asked the trial court to conduct a hearing. Thus, the issue now becomes

whether the failure to conduct a hearing was harmless.

In her postjudgment motion, the wife alleged that after the final

hearing she learned that the husband owned several investment

accounts that he did not disclose during discovery or at trial that, she

said, constituted marital property and, consequently, should have been

included in the property division. In support of this assertion, the wife

attached copies of statements for those personal accounts. It appears

that the wife secured these documents through a pro se subpoena issued

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on June 24, 2022, with a return date of July 1, 2022. The record does not

indicate when these documents or other documents concerning the value

of the husband's companies were produced to the trial court or to the wife.

"To prevail on a motion for a new trial based on newly
discovered evidence, a party must show that the evidence at
issue: (1) was discovered after the trial, (2) could not have
been discovered before the trial with the exercise of due
diligence, (3) is material to the issue, (4) is not merely
cumulative or impeaching, and (5) is of such a nature that a
different verdict than that already obtained probably would
result if a new trial is granted. Welch v. Jones, 470 So. 2d 1103
(Ala. 1985). The applicable standard of review is stated in
Gilmer v. Salter, 285 Ala. 671, 676, 235 So. 2d 813, 817 (1970):

" 'The granting or denying of a new trial on
the ground of newly discovered evidence rests
largely in the trial court's discretion, and its order
will not be reversed on appeal, unless it appears
that the court violated some legal right of the
appellant, or abused its discretion; the
presumption, being that discretion was properly
exercised.' "

Columbia Sussex Corp. v. Rodriguez, 736 So. 2d 619, 621-22 (Ala. Civ.

App. 1999).

After thoroughly reviewing the record, we cannot conclude that the

trial court's failure to conduct a hearing on the merits of the wife's claims

of newly discovered evidence was harmless. We are not deciding the

merits of the wife's claims regarding newly discovered evidence -- only

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that under the facts and circumstances in this case, a hearing is

warranted to make findings accordingly.

For the foregoing reason, we reverse the denial by operation of law

of the wife's postjudgment motion, and we remand the cause to the trial

court to conduct a hearing. Frazier v. Curry, 119 So. 3d 1195 (Ala. Civ.

App. 2013). Although the wife raised other arguments in her

postjudgment motion, the lack of a hearing on the alleged newly

discovered evidence is dispositive, and we express no opinion as to the

validity of the other arguments raised by the wife and pretermit

discussion of them. See Henderson v. Henderson, 123 So. 3d 974, 977-78

(Ala. Civ. App. 2013).

REVERSED AND REMANDED.

Edwards, Fridy, and Lewis, JJ. concur.

Moore, P.J., concurs in the result, without opinion.

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