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Bulletin Summer 2013

Domestic Relations G.R. Fernambucq Filing Fee Issues A ecting Jurisdiction in Domestic Relations Cases Case law relying on a 1980 Opinion of the Clerk has caused a great deal of confusion regarding post-divorce actions in recent years, and has resulted, for many, in recent actions being dismissed and the validity of prior orders being called into question. As far back as many practitioners can recall, a petition to modify and/or enforce a domestic relations judgment was often met in turn with a counterclaim to modify and/or enforce provisions of the same judgment. Few local attorneys, if any, concerned themselves with   ling fees, new case numbers, or service on those counterclaims. With divorce attorneys now facing dismissals and potential major problems with previous judgments entered without those fees and service of process, however, the attention of the bar has become more focused on those issues. Farmer v. Farmer, 842 So. 2d 679, 681 (Ala. Civ. App. 2002), provides an example: Where “the father’s petition to modify was not properly before the trial court for at least two reasons – failure to pay a docketing or   ling fee and failure to properly serve the mother,” both of which “deprived the trial court of jurisdiction,” the trial court’s judgment thereon was, as a result, void. See also Colburn v. Colburn, 14 So. 3d 176, 178 (Ala. Civ. App. 2009)(“parties’ motions to hold the other in contempt constitute independent proceedings over which the trial court could gain jurisdiction only if the parties paid the   ling fees required to commence such proceedings.” Few would argue with the proposition that a mere motion   led without fee, as opposed to a formally   led and served petition to either modify or enforce a prior judgment, employing a new point number, presents a jurisdictional issue. However, as Colburn v. Colburn, 14 So. 3d 176, 178 (Ala. Civ. App. 2009), states, where “parties   le their motions after the entry of a   nal judgment in the case, their motions constitute independent proceedings over which the trial court could gain jurisdiction only if the parties pay the   ling fees required to commence such proceedings,” and Alabama law has set out requirements that apply not only to those initially   led petitions but also to the counterclaims that answer them, and, where applicable, actions that must be   led separately (modi  cations and enforcements) because of their separate nature. As the Opinion of the Clerk No. 25, 381 So. 2d 58, 59-60 (Ala. 1980) explains, since “the basic di– erences between contempt proceedings and proceedings to modify a   nal decree preclude the inclusion of a petition for rule nisi and a petition to modify in the same pleading,” because they are “commenced in di– erent ways   ling of a petition for modi  cation and issuance of a citation or rule nisi for an alleged contemnor to appear and show cause in a contempt action,” and reviewed in di– erent ways (modi  cation via appeal and contempt via either certiorari or habeas corpus), “a petition for rule nisi and a petition to modify cannot be included in the same pleading under one pre-  ling fee and . . . there should be separate petitions   led and two pre-  ling fees charged.” — e foundation for authority on the issue is found in Ala. Code § 12-19-71(a)(7)(1975), which requires payment of a $248   ling fee “for cases   led in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order.” Additionally, Ala. Code § 12-19-70 (1975) provides that “there shall be a consolidated civil   ling fee, known as a docket fee, collected from a plainti– at the time a complaint is   led 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 veri  ed statement of substantial hardship” is   led and is approved by the trial court. See also Opinion of the Clerk, 49 So. 3d 1170, 1172 (Ala. 2009): “a   ling fee is to be charged when a respondent to a petition to modify a custody provision of a   nal judgment in a domestic-relations case   les an answer that includes a motion for contempt for nonpayment of child support, and that fee is $248, as required by § 12-19-71(a)(7).” 12 Birmingham Bar Association


Bulletin Summer 2013
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