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Burgett v. Porter

Alabama Court of Civil Appeals

April 10, 2015

Charles David Burgett
v.
Jackie M. Burgett Porter

          Appeal from Fayette Circuit Court. (DR-12-82).

         For Appellant: Tim R. Wadsworth and Jeremy N. Cline of Tim R. Wadsworth Law Offices, P.C., Arley.

         For Appellee: Steven M. Nolen, Fayette.

         THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur. Thomas J., concurs specially.

          OPINION

Page 21

          THOMAS, Judge.

         Charles David Burgett (" the father" ) and Jackie M. Burgett Porter (" the mother" ) were divorced by a December 1997 judgment of the Winston Circuit Court. At the time of the divorce, the parties resided in Winston County with their two children; however, the mother later moved to Fayette County, and the father later moved to Walker County. In July 2012, the mother filed a complaint in the Fayette Circuit Court (" the trial court" ) in which she sought a modification of the father's child-support obligation and an award of postminority-educational support for one of the children. The father answered the complaint, and the trial court held a trial on January 22, 2013, after which it entered a judgment (" the modification judgment" ) that, among other things, modified the father's child-support obligation and ordered the parties to pay postminority educational support for one of their children. The father filed a postjudgment motion, which the trial court granted in part in April 2013 by modifying certain terms of the modification judgment, but the father did not appeal the modification judgment.

         In April 2014, the father filed a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., in which he contended that the modification judgment is void because the mother had not paid the appropriate docket fee when she filed her complaint in the trial court. The trial court held a hearing on the father's motion, at which the only witness was Janice Butler, an employee of the Fayette Circuit Clerk's office. After the hearing, the trial court entered an order denying the father's Rule 60(b)(4) motion. The father timely appeals from that order, arguing that the trial court erred by concluding that the modification judgment is not void.

          Our review of the grant or denial of a Rule 60(b)(4) motion is de novo; such a motion challenges the underlying judgment as being void, so the question of the validity of the judgment is a purely legal one in which discretion has no place. Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala. 2000); see also General Motors Corp. v. Plantation Pontiac-Cadillac, Buick, GMC Truck, Inc., 762 So.2d 859, 861 (Ala.Civ.App. 1999). The father contended below and contends on appeal that the mother's failure to pay the appropriate filing fee for the institution of a domestic-relations modification action prevented the trial court from acquiring jurisdiction over the mother's action and

Page 22

rendered the modification judgment void. As the father argues, our supreme court has concluded that " '" [t]he payment of a filing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action." '" Johnson v. Hetzel, 100 So.3d 1056, 1057 (Ala. 2012) (quoting Odom v. Odom, 89 So.3d 121, 122 (Ala.Civ.App. 2011), quoting in turn Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App. 2008)).

         As our supreme court has explained, if a filing fee is not paid when an action is commenced, the trial court does not acquire subject-matter jurisdiction over the action, and any resulting judgment is void. Johnson, 100 So.3d at 1057. The Johnson court based its holding on cases decided by this court, in which we determined, based on De--Gas, Inc. v. Midland Resources, 470 So.2d 1218, 1222 (Ala. 1985), that the failure to pay a filing fee at the time a complaint is filed is a jurisdictional defect. See Odom v. Odom, 89 So.3d 121, 123 (Ala.Civ.App. 2011) (stating that " [u]nless and until the former husband complies with Ala. Code 1975, § 12--12--70, by either paying the applicable docket fee or filing a verified statement of substantial hardship that is approved by the trial court, that court will be without subject-matter jurisdiction to consider" the issues raised in the action); Vann, 989 So.2d at 559 (" [T]he parties did not pay the docketing fees required under Ala. Code 1975, § 12--19--70 et seq., for [the circuit] court to acquire subject-matter jurisdiction. A judgment entered by a court lacking subject-matter jurisdiction is absolutely void." ); and Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App. 2002) (" The failure to pay the filing or docketing fee is a jurisdictional defect." ).

         The facts and the law underlying the issue are clear and undisputed. A filing fee must be collected at the time a complaint is filed. See Ala. Code 1975, § 12-19-70; Vann v. Cook, 989 So.2d at 558-59 (" Section 12-19-70, Ala. Code 1975, provides that 'a consolidated civil filing fee, known as a docket fee, [shall be] collected ... at the time a complaint is filed in circuit court or in district court,' although that payment 'may be waived initially and taxed as costs at the conclusion of the case' if '[a] verified statement of substantial hardship' is filed and is approved by the trial court." ). The base filing fee for a domestic-relations modification action is $248. See Ala. Code 1975, § 12-19-71(a)(7).

         Butler testified that the clerk's office collected a $154 base filing fee from the mother when she filed her complaint; Butler noted that the mother paid a total of $209, which included the base filing fee and other fees imposed in that county.[1] The father's attorney questioned Butler regarding whether the appropriate filing fee should have been $248, and Butler ...


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