Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

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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

2

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 
CL-2023-0324

3

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

information about a life-insurance policy because he did not own a lifeinsurance 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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4

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 
CL-2023-0324

6

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 
CL-2023-0324

7

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 
CL-2023-0324

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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.