Don’t Try To Get DHR To Pay an Attorney Fee in Alabama

It’s a given in Alabama that when a party is in contempt of court, that party is liable to pay an attorney’s fee to the other party. So you can forgive Mark David Allen for asking for an attorney fee when DHR botched up his case. The case is Alabama Department of Human Resources v Allen, Case No. 2160310 (Ala. Civ. App. May 19, 2017).

The husband (Allen) alleged that he had paid all child support as ordered and on time. Yet DHR intercepted his income tax refunds, caused an income withholding order to be filed against him, and filed a motion to collect child support from him, alleging that he owed $58,000 in back child support.

After hearing testimony and reviewing documents, the trial court roasted DHR. In the words of the appeals court, the trial court found “that the father was not in arrears for other child support, that DHR had been negligent in its research regarding the arrearage allegedly owed by the father before attempting to collect the alleged arrearage, that DHR had encouraged the mother to file a false claim against the father for the alleged child-support arrearage, and that DHR had failed to entertain the father’s attempt to provide it with proof of payments regarding the alleged arrearage. The trial court ordered DHR to pay to the father attorney’s fees in the amount of $5, 000 ‘for [its] negligence and greed in having [the mother] file a false claim against [the father].'”

DHR appealed.

The appeals court never reached the question whether the husband was eligible to collect an attorney’s fee, because it found that DHR, as an arm of the State of Alabama, is entitled to sovereign immunity. The appeals court pointed out that the trial court could have assessed an attorney fee against a DHR official, just not against the Department itself.

“We conclude that DHR, as an agency of the sovereign state, was immune from suit for attorney’s fees for the father.” Because the trial court lacked subject matter jurisdiction to assess an attorney fee against DHR, its order directing DHR to pay one was void. And because the judgment was void, the appeals court dismissed the appeal with instructions to the trial court to vacate the portion of its judgment ordering DHR to pay an attorney fee.

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