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Domestic Relations Odom v. Odom, 89 So. 3d 121, 122 (Ala. Civ. App. 2011), has connected the payment of ling fees very denitely to the issue of jurisdiction: “­e payment of a ling fee or the ling of a court-approved veried statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action.” ­erefore, as Farmer v. Farmer, 842 So. 2d 679, 681 (Ala. Civ. App. 2002), indicates, “the failure to pay the ling or docketing fee is a jurisdictional defect.” As the ling or docketing fee is thus required at commencement of an action, failure to pay said fee precludes the court’s acquisition of subject matter jurisdiction and renders any order entered on such an action “absolutely void.” Vann v. Cook, 989 So. 2d 556, 560 (Ala. Civ. App. 2008). Moreover, and creating more than a little panic among some practitioners contemplating past ling habits involving multiple claims and issues which may have led to orders upon which clients now heavily rely, the failure to pay those fees may not be curable. According to De- Gas, Inc. v. Midland Resources, 470 So. 2d 1218, 1220 (Ala. 1985), “the use of the term ‘shall’ in this provision § 12-19-70(a) makes the payment of the ling fee mandatory. See Prince v. Hunter, 388 So. 2d 546, 547 (Ala. 1980). It was the obvious intent of the legislature to require that either the payment of this fee or a court-approved veried statement of substantial hardship accompany the complaint at the time of ling. No doubt the purpose behind the passage of this provision was to discourage the ling of frivolous suits and to insure that the clerks of the circuit courts do not become ‘credit men.’ ” ­is is apparently also the case because “subject matter jurisdiction may not be waived,” C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala. Civ. App. 2003) and considers that “parties may not waive lack of subject-matter jurisdiction, and subject-matter jurisdiction may not be conferred by consent.” Espinoza v. Rudolph, 46 So. 3d 403, 413 (Ala. 2010). However, some case law seems to suggest that failure to pay a ling fee and the resulting jurisdictional defects can in fact be remedied by subsequent payment. See Odom v. Odom, 89 So. 3d 121, 123 (Ala. Civ. App. 2011) (“Unless and until the former husband complies with Ala. Code 1975, § 12-12-70, by either paying the applicable docket fee or ling a veried statement of substantial hardship that is approved by the trial court, that court will be without subject matter jurisdiction to consider child support modication and enforcement questions.”(emphasis added)) and Espinoza v. Rudolph, 46 So. 3d 403, 413 (Ala. 2010) (“The legislature has not expressly provided that a ling fee must be collected at the time a counterclaim is led”(emphasis added), such that “the trial court did not err by reinstating Rudolph’s counterclaims on the condition that she pay the ling fee.”). ­e recent decision of Austin v. Austin, 2013 Ala. Civ. App. Lexis 63, was released March 8, 2013, and answers a few questions previously mentioned. ­is case was from the Je¦erson County Courts. Here, the original petition sought a modication of the father’s child support. ­e father was served with that petition. ­e original petition was later amended to include allegations of unpaid child support, interest, and an attorney’s fee. ­e amended petition did not specically request contempt and was led less than 42 days before trial without requesting leave from the court to le same. A trial was conducted, the father never led an answer, and the father did not appear at trial. ­e trial court entered an order nding the father in contempt, calculated child support arrearages with interest, increased father’s child support, and awarded an attorney’s fee. All post judgment motions were denied. ­e father raised several issues on appeal. One was that the mother paid one ling fee (the original modication) and did not pay one when the amendment to enforce was led. Father relied on the 1980 opinion of the clerk previously cited which had opined that it should be two separate pleadings and two pre-ling fees charged. ­e Austin decision a§rmed the trial court and pointed out that the opinions of the clerk relied on by the father predate the adoption of Rule 70A, A.R.C.P. which now governs contempt proceedings arising out of civil actions. Furthermore, Rule 18 A.R.C.P. provides that a party may assert as many claims as he or she has against an individual in the same action. ­is aspect was a§rmed. It is not necessary to have two separate pleadings and two separate ling fees. ­is decision denitely claries the question of whether two petitions and two ling fees are necessary or whether it can all be pursued as one. Questions still remain, however, when a petition is led and a counter petition is led by the responding party. If the original petition is one for modication, and the counter petition is also one for modication, is an additional ling fee necessary? ­is question has not been addressed. What if the counter petition in response to the modi- cation is one alleging non-payment and requesting contempt? ­e 2009 Opinion of the Clerk noted above states that a ling fee is required. Hopefully, these issues will likewise be addressed by the Appellate Courts or the legislature in the near future. G Contributor G.R. Fernambucq 14 Birmingham Bar Association


Bulletin Summer 2013
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