The Alabama Court of Civil Appeals has reversed a trial court’s denial of a motion to alter, amend, or vacate. The Appeals Court said the trial court should have had a hearing on the motion rather than denying it out of hand.
The husband in Gunter v. Gunter, Case Nos. 2030709 and 2030756 (Ala. Civ. App. April 22, 2005) had admitted to adultery. The trial court ordered division of their marital property, awarded joint legal custody of their minor child with sole physical custody for the wife, and ordered the husband to pay the wife’s attorney a $12,000 fee.
After trial, the husband filed a motion to alter, amend, or vacate, attaching four affidavits indicating the wife had had sexual affairs during the marriage with at least one man and at least one woman and might have sold drugs. The husband also filed to intervene on behalf of his daughter on the grounds that the court had awarded to the wife property that actually belonged to the daughter. The trial court denied both motions.
The Appeals Court ruled that the trial court should have granted the daughter’s motion to intervene and should have appointed a guardian ad litem to represent the daughter’s interests in the divorce. The Appeals court also ruled that the trial court should have ordered a hearing on the husband’s new evidence about the wife’s possible adultery.
Although the trial court may have disbelieved all of the foregoing evidence, we cannot say, in light of the husband’s newly discovered evidence — the wife’s alleged perjury, the wife’s alleged adultery with J.T., a male, and the wife’s alleged sale of drugs — that the husband’s postjudgment motion had no probable merit and that its denial without a hearing did not prejudice his substantial rights. Accordingly, we conclude that the trial court erred by denying the husband a hearing on his postjudgment motion.