December 12, 2014
Boyd J. Landry
Angela O. Landry
from Autauga Circuit Court. (DR-06-65.06).
Appellant: Roianne Houlton Conner and Preston L. Presley of
Law Offices of Roianne Houlton Conner, Montgomery.
Appellee: J. Robert Faulk of McDowell, Faulk & McDowell, LLC,
Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson,
Landry (" the father" ) appeals from a judgment
entered by the Autauga Circuit Court (" the trial
court" ) in case no. DR-06-65.06 (" the .06
action" ). We affirm.
trial court divorced the father from Angela O. Landry ("
the mother" ) in 2007. In that divorce judgment, the
trial court ordered the father to pay, among other things,
$2,500 per month as child support for the parties' four
children. Since that time, the parties have been before the
trial court on multiple occasions, including in case no.
DR-06-65.04 (" the .04 action" ) and in case no.
DR-06-65.05 (" the .05 action" ). In Landry v.
Landry, 91 So.3d 88 (Ala.Civ.App. 2012), this court
determined that the trial court had not entered a final
judgment in the .04 action and dismissed an appeal arising
from that action. In Ex parte Landry, 117 So.3d 714
(Ala.Civ.App. 2013), this court, in ruling on a petition for
a writ of mandamus filed by the father, determined that the
trial court had not entered a final judgment in the .05
action. Those actions remained pending when, on September 10,
2012, the father initiated the .06 action seeking to suspend
his child-support obligation.
mother subsequently filed a counterclaim in the .06 action,
seeking to hold the father in contempt. On September 16,
2013, the trial court consolidated the .04 action, the .05
action, and the .06 action for the purpose of conducting a
final hearing. On November 13, 2013, after an ore tenus
hearing, the trial court entered a judgment purporting to
adjudicate the pending claims in all three actions. As to the
.06 action, the judgment, as amended in response the
postjudgment motion filed by the father, among other things,
denied the father's motion to recuse, found the father in
contempt, and awarded the mother $5,533.05 in attorney's
fees. The father timely filed a notice of appeal.
initial matter, we note that, when the trial court
consolidated the three actions, those actions did not lose
their separate identities and the trial court was obligated
to enter a separate judgment in each action. Casey v.
Casey, 85 So.3d 435, 439-40 (Ala.Civ.App. 2011) (citing
H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278
(Ala.Civ.App. 2009)). From a review of the record on appeal,
it appears that, although the trial court referred in its
judgment to all three actions, the trial court entered a
final judgment only in the .06 action. Thus, the .04 action
and the .05 action remain pending before the trial court
awaiting entry of a final judgment. We cannot, and do not, in
this appeal consider any issues arising out of the .04 action
and the .05 action.
first issue properly before us concerns whether the trial
court had jurisdiction to rule on the mother's
counterclaim for contempt in the .06 action. The father
argues that a contempt action may not be joined in the same
action as a modification petition, relying in part on Opinion
of the Clerk No. 25, 381 So.2d 58 (Ala. 1980). However, at
the time Opinion of the Clerk was issued, Rule 33.3, Ala. R.
Crim. P., governed contempt actions. As recognized in
Austin v. Austin, [Ms. 2120102, July 19, 2013] 159
So.3d 753 (Ala.Civ.App. 2013), Rule 70A, Ala. R. Civ. P., now
governs contempt proceedings arising out of civil actions,
and a contempt claim may be asserted in a civil action along
with other claims. Austin, __ So.3d __at __, Id.
at*9 (citing Rule 18, Ala. R. Civ. P.; and Ex parte Boykin,
656 So.2d 821, 827 n.5 (Ala.Civ.App. 1994)). Thus, the mother
was entitled to assert her contempt claim against the father
in the pending modification action.
father also asserts that, in the .06 action, the mother
failed to pay the filing fee required by Ala. Code 1975,
§ 12-19-71(a) (requiring a filing fee for cases filed in
the domestic-relations docket of the circuit court), to
support her counterclaim and that, as a result, the trial
court never acquired subject-matter jurisdiction over that
counterclaim. Alabama Code 1975, § 12-19-71(a)(8),
provides that " [t]he filing fees which shall be
collected in civil cases shall be: ... [t]wo hundred
ninety-seven dollars ($297) for a counterclaim, cross claim,
third party complaint, a third party motion, or an action for
a declaratory judgment filed in a civil action of the circuit
court other than cases filed on the domestic relations docket
of the circuit court." (Emphasis added.) That subsection
does not direct the payment of any filing fee for a
counterclaim in a domestic-relations case. However, Ala. Code
1975, § 12-19-71(a)(7), provides that the clerk shall
collect a fee of " [t]wo hundred forty-eight dollars
($248) for cases filed in the domestic relations docket of
the circuit court seeking to modify or enforce an existing
domestic relations court order." Reading those
provisions in pari materia, we conclude that the legislature
intended that a filing fee of $248 would be collected when a
party files a counterclaim seeking to enforce a prior
domestic-relations judgment. See Darks Dairy, Inc. v.
Alabama Dairy Comm'n, 367 So.2d 1378, 1381 (Ala.
1979) (" [P]arts of the same statute are in pari materia
and each part is entitled to equal weight." ).
Espinoza v. Rudolph, 46 So.3d 403, 413-14 (Ala. 2010),
the supreme court held that " Section 12-19-71(a)(8),
Ala. Code 1975, requires the clerk to collect a filing fee
for a counterclaim filed in the circuit court." However,
the court determined in Espinoza that the fee for filing a
counterclaim does not have to be collected at the time the
counterclaim is filed and that a counterclaim is considered
" filed" and part of the action over which a trial
court has jurisdiction when it is properly delivered to the
clerk. In Espinoza, the defendant did not originally pay a
filing fee, but the trial court later ordered payment of the
filing fee, and the clerk collected the fee, as a condition
to maintain the counterclaim after the complaint was
dismissed. 46 So.3d at 408-09. Hence, the supreme court did
not have any occasion to address the situation in which no
filing fee has been collected on a counterclaim.
Nevertheless, in dicta, the court stated:
" We note that, when the requirements of §
12-19-71[, Ala. Code 1975,] have not been satisfied, the
trial court may stay the time for answering the counterclaim
or conducting discovery or litigating the counterclaim until
the fee is paid or may make such other orders as are
reasonable and necessary to ensure payment. Consequently, a
counterclaim defendant is not without incentive to take note
and timely object to, the nonpayment of the filing fee."
46 So.3d at 414 n.12.
Hudson v. Hudson, [Ms. 2120884, February 28, 2014] 178
So.3d 861 (Ala.Civ.App. 2014) (opinion on original
submission), this court held:
" We read Espinoza [v. Rudolph, 46
So.3d 403 (Ala. 2010),] as holding that the failure to pay a
filing fee does not divest the trial court of jurisdiction
over a counterclaim. A trial court may, in its discretion,
stay any proceedings on a counterclaim in order to ensure
payment of the filing fee, and a counterclaim defendant may
move the trial court to do so. However, a trial court does
not act without jurisdiction if it fails to take such steps
before adjudicating a counterclaim, even upon a motion of a
__ So.3d at __. In this case, the father raised the issue of
nonpayment of the filing fee for the first time in his motion
to alter, amend, or vacate the judgment when he asserted that
the trial court had acted without jurisdiction in ruling on
the counterclaim for contempt. As we held in Hudson, the
failure to collect a filing fee for a counterclaim does not
deprive a trial court of jurisdiction over the counterclaim.
The trial court should have assured that the mother paid the
filing fee, but the trial court did not lack subject-matter
jurisdiction over the counterclaim solely because that fee
had not been collected.
finally address the father's argument that the trial
court exceeded its discretion in denying his motion to
recuse. It appears that the father did not properly preserve
that argument for appellate review. In Ex parte Crawford, 686
So.2d 196, 198 (Ala. 1996), the supreme court held that the
denial of a motion to recuse may be reviewed on appeal from a
final judgment on the merits " if the party chooses to
preserve the alleged error by properly objecting to the
denial of the motion and then proceeds to trial." The
trial judge denied the father's motion to recuse at the
beginning of the November 13, 2013, final hearing. The father
did not lodge an objection to the ruling, and he later failed
to raise the issue in his postjudgment motion.
we conclude that, even if the issue has been properly
preserved, the trial court did not commit reversible error in
denying the motion to recuse. The father argues that the
trial judge should have recused himself because the trial
judge had displayed bias against him in making repeated
adverse rulings against the father during the repeated
litigation with the mother. However, adverse rulings are
insufficient to establish bias by the trial judge that would
necessitate recusal under Canon 3.C.(1)(a) of the Alabama
Canons of Judicial Ethics. Henderson v. G & G Corp.,
582 So.2d 529, 530-31 (Ala. 1991) (" Adverse rulings
during the course of proceedings are not by themselves
sufficient to establish bias and prejudice on the part of the
judge." ). Hence, we conclude that the trial court did
not exceed its discretion in denying the motion to recuse.
Franklin v. Woodmere at the Lake, 89 So.3d 144, 152
(Ala.Civ.App. 2011) (citing Ex parte Melof, 553
So.2d 554, 557 (Ala. 1989), abrogated on other grounds,
Ex parte Crawford, 686 So.2d 196, 198 (Ala. 1996))
(establishing standard of review for rulings on motions to
the father appealed solely from the judgment entered in the
.06 action, we do not discuss any matters arising solely from
the .04 action and the .05 action. As to the judgment in the
.06 action, we affirm. The father's and the mother's
requests for an award of attorney fees on appeal are denied.
Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ.,