Rel v. Rel

• Decision Date: 11 January 2019
• Docket Number: 2170423
• Citation: 280 So.3d 442
• Parties: Eduardo Enrrique REL v. Carolina REL
• Court: Alabama Court of Civil Appeals

280 So.3d 442

Eduardo Enrrique REL

v.Carolina REL

2170423

Court of Civil Appeals of Alabama.

January 11, 2019

Thomas H. Nolan, Jr., Mobile, and Joshua B. Boone of Claude D. Boone, P.C., Mobile, for appellant.

S. Joshua Briskman of Briskman & Binion, P.C., Mobile, for appellee.

PITTMAN, Judge.

Eduardo Enrrique Rel ("the husband") appeals from an amended divorce judgment entered by the Mobile Circuit Court ("the trial court") insofar as that judgment awarded Carolina Rel ("the wife") $35,000 from the husband's retirement accounts. We reverse and remand.

Procedural History

In April 2016, the wife sued the husband for a divorce, seeking, among other things, a division of the husband's retirement accounts. The action was tried on February 16, 2017. Before the wife called her first witness at the trial, the following colloquy occurred:

"THE COURT: What is the date of marriage?

"[The wife's counsel]: February 7, 2002.

"THE COURT: And when did the retirement, when did that start accruing?

"[The husband's counsel]: Early '90's.

"THE COURT: And do you have your accountant ready to reflect what was earned during the marriage?

"[The wife's counsel]: We do not, Your Honor. We asked [the husband] in discovery what was in it at the time of the marriage and he said he didn't know. I haven't subpoenaed anything so I don't have that.

"THE COURT: Let me see the attorneys in my office.

"(Off the record discussion in chambers.)

"(Back on the record.)

"THE COURT: All right. Call your first witness.

"And let the record reflect that the Court will not be dividing the retirement today because there is not going to be evidence to determine what amount was accrued during the marriage, so let's begin."

The trial court then proceeded to receive evidence. During the husband's testimony, he testified as follows:

"THE COURT: And then your retirement of $147,000, I said earlier that this was a problem because there was no -- not going to be any evidence of how much was accrued during the marriage, and on your exhibit you say it's worth $147,000 now, right?

"[The husband]: Yes, ma'am.

"THE COURT: And do you have any information regarding how much was accrued during the marriage?

"[The husband]: No, ma'am. I have the account[s] but ....

"THE COURT: Okay. What year did you start the job?

"[The husband]: At Providence, it was around 1991, started retirement around '92, '93."

No evidence tending to prove what portion of the husband's retirement accounts had accrued during the marriage was introduced at the trial; when both parties had rested their cases-in-chief, the trial court adjourned the trial rather than recessing it until a later date.

On February 24, 2017, the trial court entered a final judgment adjudicating all the parties' claims. With respect to the husband's retirement accounts, the judgment provided: "The husband is awarded his retirement."

The wife subsequently employed new counsel, who, on March 23, 2017, filed a notice of appearance and a motion titled "Motion for New Trial and/or Motion to Reconsider." That motion did not assert that the trial court had erred in awarding the husband his retirement accounts in toto. On June 6, 2017, the wife filed a motion titled "Motion to Amend Rule 60," which stated:

"Comes now [the wife and] moves this Honorable Court for an Order modifying its Order of February 24, 2017 in this matter. As grounds and support the undersigned [shows] to this Court as follows:

"1. That the [wife] states that the [husband] had ... retirement account[s] at the time of the trial that was not divided as part of the Judgment of Divorce.

"2. [The wife] states that the retirement account[s] [were] part of the marital estate given the long term marriage between the parties and subject to division [between] the parties.

"Wherefore, the [wife] respectfully moves this Honorable Court to order that the [wife] herein receive one half of the [husband's] retirement and for the Judgment of Divorce be amended to include same; [the wife] prays for such other, further and different relief to which she may be entitled, premises considered."

On June 8, 2017, the wife filed a motion titled "Amended Motion to Amend Rule 60" in which she again asserted that she was entitled to one-half of the funds in the husband's retirement accounts for the same reasons stated in her "Motion to Amend Rule 60." The trial court initially set the wife's motions for a hearing on June 14, 2017; however, that hearing was continued, and the trial court entered an order stating that both parties had expressly consented to the extension of the 90-day period for the trial court to rule on the wife's motions pursuant to Rule 59.1, Ala. R. Civ. P. The trial court subsequently held a hearing on June 29, 2017, regarding the wife's motions. At that hearing, the wife's counsel made the following argument regarding the husband's retirement accounts:

"On the Rule 60 motion specifically, I think it's uncontested that there [were] retirement account[s] of the husband's. I have not asked for leave to do discovery on that yet but I would ask the Court to let me send a subpoena to his employer to find out what the parameters are on the retirement account[s] and what's in [them].

"They were married for a long period of time. It was a long-term marriage, 15 years, and so certainly that should be part of the marital estate.

"[The wife] got very little financial remuneration in the case. Although she did get an alimony payment, she did not get any share whatsoever of the retirement account[s]. I have been told how that happened at trial and I just think that's very unfair to her. It's not her fault that evidence was not presented in that regard at trial. There is an avenue for you to amend that judgment and to rectify that and I would ask that I be allowed to do some post-judgment discovery and put that before the Court for a proper division of the retirement account[s]."

In response, the husband's counsel argued:

"Now, on the Rule 60 motion, Judge, if you'll recall, [the husband] was employed where he accumulated retirement prior to his marriage to [the wife]. You asked us at the beginning of the trial what the assets were and they said he has ... retirement account[s]. And I said, ‘Judge, I object to that. They can't prove the retirement benefits accumulated during this marriage.’ You called us up there. You asked [the counsel representing the wife at the trial] if he wanted to continue the case to get that evidence and he said no, and you said, ‘Okay. We're going to try the case then.’

"He couldn't prove the retirement benefits accumulated during the marriage. He couldn't meet the evidentiary burden required to get any retirement benefits, that's why they weren't included for [the wife], Judge."

On June 30, 2017, the trial court entered an order denying the wife's motions except insofar as she sought relief with respect to the husband's retirement accounts. With respect to the husband's retirement accounts, the trial court's June 30, 2017, order stated:

"The court will reopen the case to hear additional evidence as to the amount of the retirement funds that may be considered marital funds. The court will allow additional evidence to be discovered for this asset only.

"2. The case shall be reopened to allow this additional evidence to be presented to the court ...."

Thereafter, the wife conducted discovery regarding the husband's retirement accounts and employed an expert to testify regarding the value of the portion of the husband's retirement accounts that had been accumulated during the marriage. On August 29, 2017, the husband submitted a brief in which he asserted, among other things, that the trial court had erred in reopening the evidence because the evidence the wife sought to introduce could have been discovered before the trial by the exercise of reasonable diligence.

On November 7, 2017, the trial court held a hearing at which the wife introduced testimony by her expert witness regarding the value of the portion of the husband's retirement accounts that had been accumulated during the marriage. On November 8, 2017, the trial court entered an order amending its February 24, 2017, judgment to provide that the wife was awarded $35,000 out of the husband's retirement accounts and that the husband was awarded the remainder of the funds in his retirement accounts. The husband timely filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment. Among other things, the husband's motion alleged:

"The wife did not satisfy the evidentiary requirements of Ala. Code [1975, §] 30-2-51(b) at trial or otherwise prior to the entry of a final Judgment of Divorce on 2/24/17. The Court was without legal authority, jurisdiction, or an equitable basis to subsequently reopen the evidence to provide the wife another opportunity to attempt to meet the evidentiary requirements for an award from the husband's retirement benefits. Evidence concerning said retirement benefits submitted after 2/24/17 should not be considered. The Court had no authority (see, e.g., Ala. Code [1975, §] 6-8-103 ) to reopen the evidence after entry of judgment on 2/24/17 and abused its discretion in that regard.

"... At the trial of this matter on the 16th of February, 2017, the Court specifically asked counsel for the [wife] if they were prepared to present an accountant to offer evidence concerning the present value of the [husband's] retirement benefits which had been accumulated during the marriage as a large portion had been acquired by the [husband] pre-marriage. [The wife's] counsel stated on the record that they were not prepared to do so. At that point, the Court took the attorneys into her office, and the trial court gave the [wife] an opportunity to have the case reset in order to obtain evidence concerning the [husband's] retirement accounts. The [wife], through counsel, declined the continuance offered by the trial court.

"Subsequently, the trial court stated on the record, ‘And let the record reflect that the Court

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