Enforcement of Divorce Judgment - QDRO - Filing Fee Required: Hathaway v. Foos


Hathaway v. Foos, [Ms. 2160254, Dec. 1, 2017] __ So. 3d __ (Ala. Civ. App. 2017). This unanimous decision by Judge Thomas (Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur) dismisses the husband’s appeal on the basis of lack of subject matter jurisdiction in this decades-old divorce action.

The parties were divorced by judgment entered by the Morgan Circuit Court in 1994. Ms. *1. The judgment provided that when the husband retired, the wife shall be entitled to thirty percent of any lump sum or installment retirement payments the husband elects to receive. Ms. *2.

Following the former husband’s retirement in 2016, the former wife filed a proposed Qualified Domestic Relations Order (QDRO). Ibid. The former husband contended that the circuit court did not acquire jurisdiction because the former wife failed to pay a filing fee. The circuit court entered an order determining that the wife’s filing of the QDRO was an ancillary enforcement proceeding over which the circuit court retained jurisdiction so that no civil docket filing fee was required. Ms. *3.

On appeal, the court found that the circuit court never obtained jurisdiction because in “‘cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order,’” the payment of a filing fee is required by § 12-19-71(7), Ala. Code 1975. Ms. *5. The court dismissed the husband’s appeal from the circuit court’s order entering the QDRO because a void judgment will not support an appeal. Ms. *6.

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