Opinion of the Clerk, 389 So. 2d 1154

Opinion of the Clerk

389 So. 2d 1154 | Ala. | 1980

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — NO DOCKET FEE ON MODIFICATION OF A FINAL DECREE WITHOUT A PETITION

Mr. Dewaine Sealy, Circuit Clerk of Marengo County, has submitted to me, pursuant to § 12-2-19 (d), Code 1975, the following questions:

(1) Would you please issue me a written opinion as to what authority I have to collect a docketing fee on modifications of a final decree, which contains only an agreement between the parties, ratified by the judge, but without any petition being filed?

(2) By what authority would I file and collect a docketing fee on an agreement modification between the parties not ratified by the judge?

In answer to the first question, there is no authority to collect a docketing fee on modifications of a final decree, which contains only an agreement between the parties, ratified by the judge, but without any petition being filed.

In answer to the second question, there is no authority to file and collect a docketing fee on an agreement modification between the parties, not ratified by the judge.

These answers are based on Rule 7, "Fees for Miscellaneous Filings," Alabama Rules of Judicial Administration, which reads: *1155

"Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes."

The "filing," the collection of which is authorized by Rule 7, is the filing of a case. Opinions of the Clerk, No. 1, April 26, 1977, Ala., 345 So.2d 1329; No. 3, May 4, 1977, Ala.,345 So.2d 1338.

A "case" is a judicial proceeding for the determination of a controversy between parties where rights are enforced or wrongs are prevented or redressed. Opinions of the Clerk, No. 1, April 26, 1977, Ala. 345 So.2d 1329; No. 12, August 8, 1978, Ala.,361 So.2d 534.

It is my opinion that the agreement for the modification of a final decree by the parties, ratified by the judge, without a petition being filed, is not a case separate and apart from the original case; therefore, the collection of a docket fee is not authorized for its filing.

An agreement by the parties, not ratified by the judge, would not constitute a case separate and apart from the original case. Moreover, parties to a decree may not change or modify the decree merely by agreement between the parties. Mullis v. Caldwell,280 So.2d 558, 50 Ala. App. 508.