COVID-19 UPDATE: We are open! Our team is working and offering consultations via phone, e-mail, and video conferencing.

Timeliness of Mandamus Petition - Contempt - Failure to Pay Filing Fee

Ex parte Joy Ann Kelley, [Ms. 2190878, Feb. 26, 2021], ___ So. 3d ___ (Ala. Civ. App. 2021). The court (Fridy, J.; Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur) grants the wife’s mandamus petition challenging the Colbert Circuit Court’s subject-matter jurisdiction to enter an order holding her in contempt. The court first notes that “our supreme court has held that a petition for a writ of mandamus that challenges the jurisdiction of the trial court to enter the order sought to vacated need not be filed within the presumptively reasonable period prescribed by Rule21. See Ex parte K. R., 210 So. 3d 1106, 1112 (Ala. 2016).” Ms. *5.

The court holds that the contempt order was due to be vacated because the husband did not pay a docket fee in connection with his motion seeking to hold the wife in contempt of the divorce decree

The February 4 judgment disposed of all the parties’ claims then pending and, therefore, was a final judgment. See Heaston v. Nabors, 889 So. 2d 588, 590 (Ala. Civ. App. 2004). “‘[T]he filing of any contempt motion relating to the failure to abide by the terms of a final divorce judgment requires the initiation of an independent proceeding.’” Morgan v. Morgan, 183 So. 3d 945, 954 (Ala. Civ. App. 2014) (quoting Kyle v. Kyle, 128 So. 3d 766, 772 (Ala. Civ. App.2013)).

Ms. *7. The mandamus petition alleged that the husband did not pay a docket fee when he filed his contempt motion. Ms. *6. The court accepted this allegation as true because it was not challenged by the husband’s answer to the petition. Ms. *8, citing Ex parte Turner, 840 So. 2d 132, 134-35 (Ala. 2002). The circuit court lacked jurisdiction because “the failure to pay the docket fee when a new action is commenced is a jurisdictional defect.” Ibid.

Related Documents

Categories

Contact Us Today

  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.