April 10, 2015
Charles David Burgett
Jackie M. Burgett Porter
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 explained that she understood that
the clerk's office collected a total of $302 for a
testified that the practice of the clerk's office was to
request the filing fee that the State Judicial Information
System (" SJIS" ) indicated was appropriate for an
action. She explained that, because the mother's action
was a new action in Fayette County, it was assigned a new
case number, not an existing case number with
a successive decimal-point number added, as would typically
be the case with a modification action. Butler testified:
" That is just our procedure. If we don't have
anything to modify in our county, we use the new filing fee
for establishing a new case."
trial court commented in its order denying the father's
Rule 60(b)(4) motion that some confusion over the proper
filing fee to be paid may have resulted from the fact that,
although the mother's action sought to modify an existing
divorce judgment, her complaint was an initial filing in the
trial court and was therefore assigned a new case number.
Although the trial court acknowledged that the father was
relying on Hicks v. Hicks, 130 So.3d 184
(Ala.Civ.App. 2013), in which this court held that a trial
court had not acquired jurisdiction over a contempt action
because the filing fee had not been paid, the trial court
distinguished Hicks because no filing fee had been paid at
the time the action was commenced in Hicks but the mother in
the present case had paid a filing fee when she filed her
complaint, even if she had paid only a portion of the fee
required. The trial court further stated in its order that
" [b]oth the attorney for [the mother] and [the mother]
had a right to rely on ... the amount the Clerk's Office
required as a filing fee." Finally, the trial court
noted in its order that the father had not asserted his
challenge to the trial court's jurisdiction until a year
had passed since the entry of the modification judgment.
Based on the facts that the mother had paid at least a
portion of the filing fee and that the mother had relied on
the clerk's office to charge the necessary fee and based
on its conclusion that the father had waited too long to
bring his challenge, the trial court determined that the
modification judgment is not void and denied the father's
Rule 60(b)(4) motion.
first note that the father correctly argues that the trial
court incorrectly concluded that his challenge to the
modification judgment was not timely asserted. A Rule
60(b)(4) motion challenging the subject-matter jurisdiction
of the trial court is a Rule 60(b)(4) motion seeking to have
the judgment set aside because it is void. See Campbell
v. Taylor, [Ms. 1110057, July 3, 2014] 159 So.3d 4 (Ala.
2014) (construing a motion to set aside a judgment brought
pursuant to Rule 60(b) as a Rule 60(b)(4) motion because it
sought to have the judgment set aside based on a lack of
subject-matter jurisdiction); Ex parte R.S.C., 853 So.2d 228,
233 (Ala.Civ.App. 2002) (stating that a motion seeking to set
aside a judgment for lack of standing was a Rule 60(b)(4)
motion seeking to have the judgment set aside on the ground
that it was void for lack of subject-matter jurisdiction). A
Rule 60(b)(4) motion may be filed at any time. Ex parte Full
Circle Distrib., L.L.C., 883 So.2d 638, 642-43 (Ala. 2003).
Thus, insofar as the trial court's order denying the
father's Rule 60(b)(4) motion was based on the trial
court's conclusion that the father's challenge to the
modification judgment was untimely, the trial court erred.
trial court also determined that the modification judgment is
not void because the mother had paid a portion of the
required filing fee. The trial court determined that, because
the mother in the present case paid the filing fee that the
circuit clerk requested at the time she filed her complaint,
the mother in this case was unlike the mother in Hicks and
the parties in Johnson, Odom, and Vann, who had paid no
filing fee whatsoever when they filed their complaints. The
trial court also determined that the mother was entitled to
rely on the circuit clerk to assess the proper fee. Indeed,
the appellate courts of this state have long allowed
litigants and their attorneys to rely on information provided
to them by the employees of the
clerk's offices of the state. See Sparks v. Alabama
Power Co., 679 So.2d 678, 681 (Ala. 1996) (concluding
that it was " reasonable, under the facts of this case,
to allow Mrs. Sparks to rely on the information affirmatively
supplied her by the Jefferson circuit clerk's
office" and determining that her notice of appeal should
be accepted as timely despite the fact that her postjudgment
motion had been denied more than 42 days before the filing of
the notice of appeal when Mrs. Sparks's attorney had
repeatedly inquired about any ruling on the postjudgment
motion only to be told by clerk's office employees that
no ruling had been made); Hanover Fire Ins. Co. v.
Street, 228 Ala. 677, 681, 154 So. 816, 820 (1934)
(" The law is a reasonable master. ... In its
administration, it neither requires nor expects litigants to
distrust its sworn ministers." ); and Williams v.
Tyler, 14 Ala.App. 591, 598-99, 71 So. 51, 54 (1916)
(" A party ... should not ... be charged with fault for
having relied in good faith on information ..., although such
information is incorrect, if it is imparted by the clerk,
since he is the officer known to be the maker and custodian
of the records which contain that information, and since,
therefore, it is naturally supposed that he would give only
correct information." ). Based on these distinctions,
the trial court rejected the father's argument that Hicks
applied and concluded that the mother's partial payment
of the filing fee for a domestic-relations modification
action permitted it to conclude that it had subject-matter
jurisdiction over the mother's action.
father argues that subject-matter jurisdiction may not be
conferred by estoppel. See Hicks, 130 So.3d at 189. He
reasons that, if the payment of a filing fee is required by
§ 12-12-70, and if the amount of the fee for a
domestic-relations modification action is set by §
12-19-71(a)(7) at $248, in light of the holdings in Johnson,
Hicks, Odom, Vann, and Farmer, the mother's failure to
pay the appropriate filing fee amounted to her failure to
properly invoke the jurisdiction of the trial court. We
cannot agree with the father, however, because the evidence
adduced at the Rule 60(b) hearing supports the trial
court's conclusion that the mother properly invoked the
jurisdiction of the trial court.
Butler explained, the mother's filing was an initial
domestic-relations filing in the trial court, and the mother
paid the filing fee charged by the circuit clerk based on the
fee required by SJIS for that initial domestic-relations
filing. The clerk charged the fee required by SJIS; the
evidence indicates that she could not have charged more than
SJIS required. The trial court was correct in concluding that
this case differs from Johnson, Hicks, Odom, Vann, and Farmer
because the filing fee required by SJIS was, in fact, paid by
the mother and in therefore concluding that it had
jurisdiction to proceed to judgment. Accordingly, we affirm
the order of the trial court denying the father's Rule
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
J., concurs specially.
Judge, concurring specially.
with the main opinion and its conclusion that the failure of
Jackie M. Burgett Porter (" the mother" ) to pay
the appropriate filing fee for a domestic-relations
modification action did not deprive the Fayette Circuit Court
of jurisdiction over the mother's action to modify child
support. However, I would like to take this opportunity to
state that I now agree with the position expressed by
Judge Thompson in his dissent in Hicks v. Hicks, 130
So.3d 184, 190 (Ala.Civ.App. 2013) (Thompson, P.J.,
dissenting), that this court improperly expanded the holding
of De-Gas, Inc. v. Midland Resources, 470 So.2d 1218
(Ala. 1985). In fact, this case demonstrates the potential
for abuse about which Presiding Judge Thompson warned in his
dissent--the potential ability of one person to avoid the
application of a judgment well after its entry and well after
the parties had acted upon and relied upon its provisions.
See Hicks, 130 So.3d 193 (Thompson, P.J., dissenting). Like
Presiding Judge Thompson, I am unable to conclude that the
holding in De-Gas, which concerned whether an action had been
commenced within the applicable statute-of-limitations
period, was intended to create such consequences. I now join
Presiding Judge Thompson in calling on our supreme court to
reexamine De-Gas and Johnson v. Hetzel, 100 So.3d
1056, 1057 (Ala. 2012), and to determine that the failure to
pay a filing fee at the time of an action is commenced does
not necessarily deprive the trial court of subject-matter
jurisdiction over the action.
We note that the amount of the filing
fee prescribed fora contested domestic-relations case is
$145. Ala. Code 1975, § 12-19-71(a)(6).
We assume that the collection of additional
fees that Butler mentioned would account for the $302 that
she testified would be collected for a domestic-relations
modification action in Fayette County.