Hicks v. Hicks

• Decision Date: 09 November 2012
• Docket Number: 2110408.
• Citation: 130 So.3d 184
• Parties: Bona Faye HICKS v. Donald Ray HICKS.
• Court: Alabama Court of Civil Appeals

130 So.3d 184

Bona Faye HICKS

v.Donald Ray HICKS.

2110408.

Court of Civil Appeals of Alabama.

Sept. 14, 2012.

Rehearing Denied Nov. 9, 2012.

Background: Property owner who had prevailed in boundary dispute filed a motion for contempt against adjacent land owner for failing to comply with circuit court's order to move fence. The Circuit Court, DeKalb County, No. CV–09–4, Randall L. Cole, J., found adjacent property owner had substantially complied with its order and denied property owner's motion for contempt. Property owner appealed.

Holding: The Court of Civil Appeals, Moore, J., held that any orders stemming from the filing of the motion for contempt were void for lack of jurisdiction.

Appeal dismissed with instructions.

Bryan J., concurred in the result.

Thompson, P.J., filed dissenting opinion.

Pittman, J., dissented.

Certiorari denied, Ala., 130 So.3d 194.Jerry Wayne Baker, Jr., and Thomas B. Woodall, Albertville, for appellant.

W.N. Watson of Watson & Neeley, LLC, Fort Payne, for appellee.

MOORE, Judge.

Bona Faye Hicks (“Bona Faye”) appeals from a December 15, 2011, judgment of the DeKalb Circuit Court (“the trial court”) denying her motion for contempt, sanctions, and specific performance stemming from a previous judgment entered by the trial court deciding a boundary-line dispute between Bona Faye and Donald Ray Hicks (“Donald”). We dismiss the appeal.

On January 9, 2009, Dennis Hicks (“Dennis”) and Bona Faye filed a complaint against Donald in the trial court regarding a boundary-line dispute. Following a trial, the trial court entered a judgment on September 18, 2009, ordering Donald to relocate a fence, which had been erected by Donald, to the location of a previous fence that Donald had removed.

On August 12, 2010, Dennis and Bona Faye filed a motion for contempt, sanctions, and specific performance. In that motion, they asserted that Donald had failed to comply with the trial court's September 18, 2009, judgment because he had moved the fence only partially rather than according to the trial court's directions. On September 29, 2011, Donald filed a suggestion of death, indicating that Dennis had died. On October 3, 2011, Donald filed a motion to dismiss, asserting that Dennis had died and that Dennis's estate, which, Donald argued, was an indispensable party to the action, had not been opened. Donald requested the trial court to dismiss the action for the failure of Bona Faye to add Dennis's estate as an indispensable party. On October 5, 2011, however, the trial court entered an order denying Donald's motion to dismiss and noting that Bona Faye was prosecuting the motion for contempt, sanctions, and specific performance on her own behalf. The trial court also concluded that Donald had substantially complied with the trial court's September 18, 2009, judgment and denied Bona Faye's motion for contempt, sanctions, and specific performance.

Bona Faye filed a motion to alter, amend, or vacate on November 1, 2011, asserting, among other things, that the trial court lacked subject-matter jurisdiction to enter its October 5, 2011, judgment because no filing fee had been paid upon the filing of the motion for contempt, sanctions, and specific performance. On November 30, 2011, Donald filed a motion to dismiss Bona Faye's postjudgment motion; he also sought an attorney fee.

On December 15, 2011, the trial court entered an order that stated, in pertinent part:

“It has been held that the payment of a docketing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action, and that a motion to enforce a previous order or judgment of the court is a new action that requires the payment of such a fee. Odom v. Odom, [89 So.3d 121 (Ala.Civ.App.2011) ]; Opinion of the Clerk [ No. 17 ], Supreme Court of Alabama, 363 So.2d 97 (Ala.1978). A jurisdictional defect cannot be waived and the rule of equitable estoppel has not been applied to remedy such a defect.

“The Alabama Supreme Court has ruled, however, that when a filing fee has not been paid, the trial court may make such orders as are reasonable and necessary to ensure payment, and has approved the trial court giving a party an opportunity during the course of a proceeding to pay a filing fee that was not paid at the time of filing. Espinoza v. Rudolph, 46 So.3d 403 (Ala.2010).

“It appears to the court that the payment of the filing [fee], even at this stage of the proceeding, will cure the jurisdictional defect and that the court has the discretion to permit such late payment. Accordingly, the court finds that either party may, within 14 days from the date of this order, pay the filing fee that was unpaid by [Bona Faye], and upon such payment, the court will deny [Bona Faye's] motion to alter, amend or vacate its order of October 5, 2011. In the event the filing fee is not paid within such period, then the court will vacate its order of October 5, 2011.”

On December 19, 2011, Donald filed a notice to the court, indicating that he had paid the filing fee associated with Bona Faye's motion. Bona Faye filed her notice of appeal to this court on January 26, 2012.

Bona Faye raises only one issue on appeal—that the trial court lacked subject-matter jurisdiction to enter its October 5, 2011, judgment because no filing fee had been paid when the motion for contempt, sanctions, and specific performance was filed. Both parties agree that a “contempt action is a separate action requiring the payment of a filing fee.” G.E.A. v. D.B.A., 920 So.2d 1110, 1113 (Ala.Civ.App.2005). Citing Odom v. Odom, 89 So.3d 121 (Ala.Civ.App.2011), Bona Faye argues that the trial court lacked subject-matter jurisdiction to rule on her contempt motion for her failure to pay a filing fee when she filed that motion.

In Odom, the former husband filed a “motion for modification” of the support provisions of a judgment divorcing him from the former wife. The trial court purported to deny the former husband's motion, and the former husband appealed. 89 So.3d at 121–22. Citing Vann v. Cook, 989 So.2d 556 (Ala.Civ.App.2008), this court dismissed the appeal and concluded that, because the former husband had failed to pay a docket fee or file a verified statement of substantial hardship seeking waiver of prepayment of any applicable docket fee, the trial court was without jurisdiction to act on the former husband's motion. 89 So.3d at 123. This court stated in Vann:

“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. In turn, § 12–19–71(a)(7), Ala.Code 1975, specifies that a filing fee of $248 is to be collected ‘for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order ’ (emphasis added [in Vann] ). The 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. See De–Gas, Inc. v. Midland Res., 470 So.2d 1218, 1222 (Ala.1985); see also 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.’).

“In this case, the record does not reflect that the mother paid any docketing fee with respect to her August 2005 motion to enforce the divorce judgment or her September 2005 petition for protection from abuse. Likewise, the record does not reflect that the father paid any filing fee with respect to his September 2005 motion to enforce the divorce judgment or his December 2005 petition for custody. Each of those filings may be characterized as ‘cases ... in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order’ under § 12–19–71(a)(7), yet on none of those occasions was the appropriate docketing fee paid.

“....

“The trial court, in exercising jurisdiction over the parties' claims asserted after the entry of its default judgment in April 2005, acted outside its jurisdiction because the parties did not pay the docketing fees required under Ala.Code 1975, § 12–19–70 et seq., for that court to acquire subject-matter jurisdiction. A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment. Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 274 (Ala.2000). The mother's appeal is, therefore, dismissed, and the trial court is instructed to vacate all orders entered after the April 2005 default judgment. See, e.g., State Dep't of Revenue v. Zegarelli, 676 So.2d 354, 356 (Ala.Civ.App.1996). Any further pleadings filed in the trial court in which either party may seek to enforce or modify that court's April 2005 default judgment should be accompanied by the requisite filing fee.”

989 So.2d at 558–60.

Donald attempts to distinguish Odom and Vann from the present case by asserting that, in those cases, no filing fee was paid by either party at any time, whereas, in the present case, he argues, Donald paid the filing fee subsequent to the entry of the trial court's December 15, 2011, order allowing either party to pay the filing fee.

In Bernals, Inc. v. Kessler–Greystone, LLC, 70 So.3d 315, 319 (Ala.2011), the Alabama Supreme Court discussed whether a jurisdictional defect can be cured with regard to lack of standing at the time a complaint is filed:

“The question of standing implicates the subject-matter jurisdiction of the court. Ex parte Howell Eng'g & Surveying, Inc., 981 So.2d 413, 419 (Ala.2006). ‘...