Rel v. Rel, [Ms. 2170423, Jan. 11, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Pittman, J.; Thomas, Moore, and Donaldson, JJ., concur; Thompson, P.J., concurs specially) reverses an amended divorce judgment entered by the Mobile Circuit Court awarding the wife $35,000 from the husband’s retirement account.
When the case was called for trial, counsel for the wife acknowledged that he did not have any evidence as to the portion of the retirement account accruing during the parties’ marriage but nevertheless wished to proceed rather than continue the trial. Ms. *2-3. After entry of the judgment of divorce, the wife filed a motion for new trial. Subsequently, the wife filed a “Motion to Amend Rule 60” motion in which she sought leave to present evidence concerning the amount of retirement benefits accruing during the marriage. Ms. *4-5. Subsequently the circuit court “reopened the case to consider the additional evidence and awarded the wife $35,000 from the retirement account.” Ms. *7-8.
In reversing, the court first noted that the wife’s motions invoking Rule 60 were in substance amendments to her timely Rule 59 motion because “the character of a motion is determined and interpreted from its essential substance, and not from its descriptive name or title.” Ms. *10 (internal quotation marks omitted). The court reversed the award of retirement benefits holding “that the failure to discover evidence that could have been discovered before the trial by the exercise of reasonable diligence is not a cognizable ground for reopening the evidence or for granting a new trial. See, e.g., Adams v. State, 428 So. 2d 117, 119 (Ala. Civ. App. 1983)(‘Our case law requires, among other criteria, that in order to grant a new trial on the basis of newly discovered evidence, it must be established the evidence could not have been discovered before the trial by the exercise of due diligence.’).” Ms. *12.