Erica Abrams Kemp v. Tamara Abrams and William Abrams

• Court: Court of Civil Appeals of Alabama
• Decided: December 12, 2025
• Docket: CL-2025-0223
• Status: Published

Opinion

Rel: December 12, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2025-2026 _________________________

CL-2025-0223 _________________________

Erica Abrams Kemp

v.

Tamara Abrams and William Abrams

Appeal from Montgomery Circuit Court (DR-16-900758.00)

_________________________

CL-2024-0999 _________________________

Tamara Abrams and William Abrams CL-2025-0223, CL-2024-0999, and CL-2025-0250

Appeal from Montgomery Circuit Court (DR-16-900758.01)

CL-2025-0250 _________________________

Appeal from Montgomery Circuit Court (DR-16-900758.02)

HANSON, Judge.

Erica Abrams Kemp ("the wife") appeals from judgments entered

by the Montgomery Circuit Court ("the trial court"). We dismiss the

appeals.

Procedural History

On October 3, 2016, the wife filed a complaint for a divorce against

Matthew Clark Abrams ("the husband"), which the trial-court clerk

assigned case number DR-16-900758.00 ("the divorce action"). In her

complaint, the wife asserted that, during the parties' marriage, two

2 CL-2025-0223, CL-2024-0999, and CL-2025-0250

children were born.1 On February 28, 2017, the wife filed a motion to

dismiss the divorce action because the husband had died on February 1,

2017. The wife attached to her motion a copy of the husband's death

certificate. On March 6, 2017, before the trial court addressed the wife's

motion to dismiss, William Abrams and Tamara Abrams ("the paternal

grandparents") filed a motion to intervene in the divorce action, citing §

30-3-4.2, Ala. Code 1975, the grandparent-visitation statute, and

requesting the right to visit the children. The record does not indicate

whether a docket fee was paid in connection with the filing. After

conducting a hearing, the trial court, on March 30, 2017, entered a

judgment dismissing the divorce action. The trial court's judgment,

however, also recognized that the paternal grandparents' motion to

intervene, in substance, constituted a petition for grandparent visitation

and created a new action ("the grandparent-visitation action"). At that

time, however, the trial court did not order the trial-court clerk to assign

the grandparent-visitation action a separate case number,2 and on

1The children were born in November 2007 and January 2011.

2The trial court, in its March 26, 2025, judgment at issue in these

appeals, ordered the trial-court clerk to assign the grandparent-visitation action a separate case number, and the trial-court clerk subsequently 3 CL-2025-0223, CL-2024-0999, and CL-2025-0250

September 26, 2017, it purported to enter a judgment in the dismissed

divorce action that incorporated a settlement agreement between the

wife and the paternal grandparents and awarded the paternal

grandparents visitation with the children.

On September 21, 2023, the paternal grandparents initiated a

show-cause action against the wife. 3 In their petition, the paternal

grandparents alleged that the wife had not complied with the trial court's

judgment awarding them visitation with the children. On April 10, 2024,

the wife filed an answer. On November 26, 2024, the trial court entered

a judgment in the show-cause action that denied the paternal

grandparents' request to hold the wife in contempt for preventing their

visitation with the children. On December 26, 2024, the wife filed a

postjudgment motion in the show-cause action, arguing that the trial

court lacked jurisdiction to enter its November 26, 2024, judgment

assigned the grandparent-visitation action case number DR-16- 900758.01.

3When the paternal grandparents initiated their show-cause action,

the trial-court clerk assigned the action case number DR-16-900758.01. However, pursuant to the trial court's March 26, 2025, judgment, see note 1, supra, the trial-court clerk renumbered the show-cause action as case number DR-16-900758.02. 4 CL-2025-0223, CL-2024-0999, and CL-2025-0250

because, she said, the judgment awarding the paternal grandparents

visitation was void.

That same day, the wife also filed a Rule 60(b)(4), Ala. R. Civ. P.,

motion in the divorce action, arguing that the judgment addressing the

paternal grandparents' visitation with the children, which was entered

after the trial court had dismissed the divorce action, was void for lack of

subject-matter jurisdiction.

On March 26, 2025, the trial court entered a judgment that, in

substance, reaffirmed its judgment dismissing the divorce action; denied

the wife's Rule 60(b) motion, concluding that its judgment awarding the

paternal grandparents' visitation was not void for lack of subject-matter

jurisdiction; and, consequently, denied the wife's postjudgment motion

filed in the show-cause action. In short, the trial court appears to have

determined that the divorce action did, in fact, abate upon the death of

the husband; that the trial court's judgment awarding the paternal

grandparents visitation with the children was not void because the

paternal grandparents, when they filed their motion to intervene,

initiated a new cause of action; and that, because that judgment was not

void, the trial court had jurisdiction in the show-cause action to enter a

5 CL-2025-0223, CL-2024-0999, and CL-2025-0250

judgment addressing whether the wife had violated its grandparent-

visitation judgment.

The wife filed timely notices of appeal, and the clerk of our court

assigned the wife's appeal from the March 26, 2025, judgment entered in

the divorce action appeal number CL-2025-0223, the wife's appeal from

the March 26, 2025, judgment entered in the grandparent-visitation

action appeal number CL-2024-0999, and the wife's appeal from the

March 26, 2025, judgment entered in the show-cause action appeal

number CL-2025-0250. On April 11, 2025, this Court entered an order

consolidating the three appeals. The paternal grandparents have not

favored this court with a brief. We will address each appeal in turn.

Appeal Number CL-2025-0223 -- The Divorce Action

The record reflects that the trial court properly recognized in its

March 30, 2017, judgment that the wife's divorce action had abated upon

the husband's death and, therefore, dismissed that action. As our

supreme court explained in Ex parte Thomas, 54 So. 3d 356, 359 (Ala.

2010):

"It is clear that the divorce action between the wife and the husband in the family court abated upon the death of the husband. Alabama law is well settled that '[a] marriage is dissolved by the death of a party to the marriage, and a

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pending action for dissolution by divorce is necessarily terminated and absolutely abated.' Jones v. Jones, 517 So. 2d 606, 608 (Ala. 1987)(citing Cox v. Dodd, 242 Ala. 37, 4 So. 2d 736 (1941); and Killough v. Killough, 373 So. 2d 336 (Ala. Civ. App. 1979))."

In accord with Ex parte Thomas, this court in Ex parte Thompson

Tractor Co., 227 So. 3d 1234, 1238 (Ala. Civ. App. 2017), recognized:

"A trial court lacks jurisdiction to act on a case that has been abated by the death of one of the parties. See Ex parte Thomas, 54 So. 3d 356 (Ala. 2010). A court that lacks jurisdiction has the power only to dismiss the action. Bernals, Inc. v. Kessler-Greystone, LLC, 70 So. 3d 315, 319 (Ala. 2011). Any other order or judgment entered by the trial court after the action has been abated is void ab initio due to lack of subject-matter jurisdiction. Id."

Thus, upon the husband's death on February 1, 2017, the trial court

lost subject-matter jurisdiction to enter any judgment in the divorce

action other than the March 30, 2017, judgment dismissing that action.

Accordingly, any judgment entered by the trial court after February 1,

2017, in the divorce action, except its March 30, 2017, judgment of

dismissal, is void for lack of subject-matter jurisdiction. A void judgment

will not support an appeal. Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ.

App. 2008). The wife's appeal from the March 26, 2025, judgment entered

in the divorce action is, therefore, dismissed, and the trial court is

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instructed to vacate any judgment entered in the divorce action after

February 1, 2017, except for its judgment dismissing that action.

Appeal Number CL-2024-0999 -- The Grandparent-Visitation Action

To the extent that the paternal grandparents' motion to intervene

in the divorce action could be construed as a filing initiating a new action

-- the grandparent-visitation action -- the trial court acted outside its

jurisdiction by purporting to exercise jurisdiction over their claim for

visitation with the children. The paternal grandparents' motion to

intervene was, in substance, a petition for grandparent visitation filed

pursuant to § 30-3-4.2, which provides, in pertinent part:

"(b) A grandparent may file an original action in a circuit court where his or her grandchild resides or any other court exercising jurisdiction with respect to the grandchild or file a motion to intervene in any action when any court in this state has before it any issue concerning custody of the grandchild, including a domestic relations proceeding involving the parent or parents of the grandchild, for reasonable visitation rights with respect to the grandchild if any of the following circumstances exist:

"(1) An action for a divorce or legal separation of the parents has been filed, or the marital relationship between the parents of the child has been severed by death or divorce."

(Emphasis added.)

8 CL-2025-0223, CL-2024-0999, and CL-2025-0250

As previously noted, the husband died on February 1, 2017, and the

divorce action abated. The paternal grandparents did not initiate the

grandparent-visitation action until March 6, 2017, approximately a

month after the divorce action had abated. The record does not reflect

that a docket fee was paid in connection with their filing. The payment

of a docket fee is a jurisdictional requirement to commence an action. See

Ex parte Courtyard Citiflats, LLC, 191 So. 3d 787, 790 (Ala. 2015)

(holding that "the payment of a [docket] fee or the preapproval of the

hardship statement is a jurisdictional prerequisite to the commencement

of [a plaintiff's] action[]" and explaining that a trial court lacks the power

to enter, nunc pro tunc, an order approving a substantial-hardship

statement retroactive to the date a complaint was filed); see also § 12-19-

70, Ala. Code 1975. Because the paternal grandparents did not pay a

docket fee when they initiated their grandparent-visitation action, the

trial court did not have jurisdiction over the grandparent-visitation

action, and any judgments addressing grandparent visitation that the

trial court entered, including the March 26, 2025, judgment, are void. As

previously noted, a void judgment will not support an appeal. Vann, 989

So. 2d at 559. Accordingly, this appeal is dismissed with instructions

9 CL-2025-0223, CL-2024-0999, and CL-2025-0250

for the trial court to vacate all the judgments entered in the grandparent-

visitation action and to enter a judgment dismissing that action.

Appeal Number CL-2025-0250 -- The Show-Cause Action

The trial court held the wife in contempt for violating the

September 26, 2017, judgment awarding the paternal grandparents

visitation. We have concluded that that judgment is void. A trial court

does not have subject-matter jurisdiction to enforce a void judgment.

Garrett v. Williams, 68 So. 3d 846, 849 (Ala. Civ. App. 2011). Because

the trial court did not have subject-matter jurisdiction to enforce the

judgment awarding the paternal grandparents visitation, the trial court's

March 26, 2025, judgment entered in the show-cause action is void, and

the appeal from that judgment is due to be dismissed. See Vann, supra.

Therefore, we dismiss the wife's appeal from the judgment entered in the

show-cause action and instruct the trial court to vacate that judgment

and to enter a judgment dismissing that action.

Conclusion

In conclusion, the divorce action abated upon the husband's death

on February 1, 2017, see Ex parte Thomas, supra, and the trial court

properly dismissed that action. Therefore, all judgments entered in the

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divorce action after February 1, 2017, except for the judgment of

dismissal, are void, including the trial court's judgment purporting to

grant the paternal grandparents' motion to intervene in the divorce

action, which purported to initiate the grandparent-visitation action.

Additionally, even if the paternal grandparents' motion to intervene

could be considered to have initiated the grandparent-visitation action,

the paternal grandparents did not pay a docket fee and, thus, the trial

court did not obtain jurisdiction over that action. See Ex parte Courtyard

Citiflats, supra. Further, the show-cause action sought enforcement of

the void judgment awarding the paternal grandparents visitation, and,

consequently, the trial court's judgment in that action is void.

CL-2025-0223 -- APPEAL DISMISSED WITH INSTRUCTIONS.

CL-2024-0999 -- APPEAL DISMISSED WITH INSTRUCTIONS.

CL-2025-0250 -- APPEAL DISMISSED WITH INSTRUCTIONS.

Moore, P.J., and Edwards, Fridy, and Bowden, JJ., concur.