Ron L. Hathaway
Sally M. Foos
from Morgan Circuit Court (DR-93-356)
Hathaway ("the former husband") and Sally M. Foos
("the former wife") were married in 1972 and
divorced by a judgment entered by the Morgan Circuit Court in
1994. The divorce judgment provides, in pertinent part:
"6. When the [former] husband effects his retirement,
the [former] wife shall be entitled to receive thirty percent
(30%) of [the former] husband's retirement (whether by
lump sum or by installment) under whatever retirement program
[the former] husband elects to receive."
the former wife filed in the circuit court a proposed
Qualified Domestic Relations Order ("QDRO")
regarding each of the former husband's pension plans. On
May 2, 2016, the circuit court entered an order that reads,
in pertinent part:
"The Court has received two proposed Qualified Domestic
Relations Orders, one for The Pension Value Plan for
Employees of Boeing Company and the other for the John Deere
Pension Plan for Salaried Employees, for entry in this case.
Neither of the proposed Orders has been signed as approved by
the [former husband]. In the absence of the [former
husband]'s signatures, the Court declines to sign and
enter the proposed QDRO's."
the former husband did not thereafter execute the proposed
QDROs, the circuit court entered an order requiring him to
appear at a show-cause hearing. The former husband filed a
response in which he asserted, among other things, that the
action was due to be dismissed because the former wife had
not paid a filing fee. The former wife filed a response;
however, she did not respond to the former husband's
assertion regarding the nonpayment of a filing fee.
7, 2016, the circuit court entered an order in which it
determined, in pertinent part:
"The Court considers this to be an ancillary enforcement
proceeding requested by the [former wife] to conclude a
portion of the parties' property division that remains in
an incomplete status many years after the entry of the Decree
of Divorce. The Court necessarily retained jurisdiction to
enter subsequent orders that would aid in completing the
division of assets specified in the Decree of Divorce. This
is not a contempt proceeding[, ] at least at this stage, or a
modification proceeding and does not require the payment of
the civil docket fee."
October 25, 2016, the circuit court entered a judgment, in
which it reiterated its determination that the former wife
was not required to commence a new action or to pay a filing
fee, and it determined that the former wife was entitled to a
certain percentage of all "retirement programs or plans
the [former husband] elects to receive." The former
husband filed a timely postjudgment motion, which the circuit
court denied. The former husband filed a timely notice of
former husband firsts asks this court to dismiss the appeal
because, he argues, the circuit court incorrectly concluded
that the former wife was not required to pay a filing fee.
Our review of a trial court's conclusions of law is de
novo. See BT Sec. Corp. v. W.R. Huff Asset Mgmt.
Co., 891 So.2d 310, 312 (Ala. 2004). The former husband
points to our decision in Montgomery v. Montgomery,
37 So.3d 168 (Ala. Civ. App. 2009), for his argument that the
circuit court lacked subject-matter jurisdiction and that,
for that reason, its October 25, 2016, judgment is void. In
Montgomery, we explained:
"The issue at the heart of this case is whether a trial
court retains jurisdiction over a divorce judgment in order
to implement or enforce its judgment. This court has held
that '[a] court rendering a judgment has the inherent
power to enforce its judgment and to make such orders as may
be necessary to render it effective.' King v.
King, 636 So.2d 1249, 1254 (Ala. Civ. App. 1994);
see also Patchett v. Patchett, 469 So.2d 642 (Ala.
Civ. App. 1985). We conclude that a trial court has the
inherent power to issue a QDRO subsequent to the entry of a
divorce judgment in an effort to implement or enforce the
judgment or to render the divorce judgment effective.
Cf. Jardine v. Jardine, 918 So.2d 127,
131-32 (Ala. Civ. App. 2005) (discussing and quoting
Haney v. Haney, 50 Ala.App. 79, 81, 277 So.2d 356,
357 (Ala. Civ. App. 1973), in which this court held that a
trial court had the power to order the sale of a marital
residence, even though a provision for the sale of the
marital residence was not set forth in the parties'
original agreement or the divorce judgment, because 'the
parties' original divorce agreement and resulting
judgment "was final only under the circumstances
existing at the time, but [was] subject to
modification for the purpose of implementing" the
result intended by that judgment').
"However, we agree with the husband that the wife should
have filed separate actions, paid the appropriate filing
fees, and given the husband proper notice of her filings
because the wife was seeking to implement or enforce the
divorce judgment. Cf. Colburn v. Colburn,
14 So.3d 176, 178 (Ala. Civ. App. 2009) (holding that the
trial court lacked jurisdiction to enter a judgment of
contempt 'because the parties filed their [contempt]
motions after the entry of a final judgment in the case,
[and, therefore, ] their motions constituted independent
proceedings over which the trial court could gain
jurisdiction only if the parties paid the filing fees
required to commence such proceedings'). Section
12-19-71(a), Ala. Code 1975, sets forth the amount of filing
fees to be paid in civil actions, and ...