from Fayette Circuit Court. (DR-12-82).
Appellant: Tim R. Wadsworth and Jeremy N. Cline of Tim R.
Wadsworth Law Offices, P.C., Arley.
Appellee: Steven M. Nolen, Fayette.
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
JJ., concur. Thomas J., concurs specially.
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.
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
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
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.
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." ).
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, §
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. The father's attorney questioned
Butler regarding whether the appropriate filing fee should
have been $248, and Butler ...