author: ISHEE, J.,

text:
    Barbara A. FERGUSON, Appellant v. Robert B. FERGUSON, Appellee.
    No. 2005-CA-01560-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.

      Neysha Larose Sanders, Greenwood, attorney for appellant.
    Nick Crawford, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On August 8, 2003, the Chancery Court of Sunflower County entered an order granting Robert Ferguson’s motion for modification and declaratory relief from a previous order entered in April of 1992 which, inter alia, ordered Ferguson to pay separate maintenance and child support in the amount of $500 per month to the appellant, Barbara Ferguson. Aggrieved by the judgment, Barbara appeals. Finding no error, we affirm.

FACTS

¶ 2. Robert Ferguson filed for divorce in the Chancery Court of Sunflower County on July 30, 1990, based on the ground of habitual, cruel, and inhuman treatment. On April 28, 1992, the court stated that the parties should be separated and probably should be divorced, but did not grant the divorce because Robert failed to establish the elements of cruelty. The court further ordered Robert to pay as separate maintenance and child support the sum of $500 per month to Barbara. Robert and Barbara agreed that custody should be placed with Barbara and that Robert would be entitled to reasonable visitation.

¶3. Subsequent to the order granting separate maintenance, Robert was granted a decree absolute (of divorce) by the Oxford County Court of Oxfordshire, United Kingdom on March 16, 1995. On January 8, 2003, Robert amended his original divorce complaint in Mississippi and filed a motion with the chancery court asking that separate maintenance be declared null and void as of the date of the divorce and that he be granted the paramount care, custody, and control of the minor child, Roderick Lamar Ferguson. A hearing was scheduled for March 20, 2003, at which time a continuance was granted on the ground that Barbara had not been able to retain an attorney to represent her. The hearing was set for June 26, 2003, and Barbara failed to appear. The court ruled that the obligation of Robert to pay separate maintenance terminated as of the date of the decree absolute on March 16, 1995. The court further ruled that a material change in circumstances had taken place that adversely affected the minor child and found that Robert should be granted the custody and control of Roderick.

¶ 4. Aggrieved, Barbara appeals and asserts the following issues for this Court’s review: (1) whether the trial court committed error in denying Barbara’s motion for relief from the order granting modification and declaratory judgment, and (2) whether the decision of the trial court is against the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 5. Our review of domestic relations matters is limited. Carrow v. Carrow, 741 So.2d 200, 202(¶ 9) (Miss.1999). The chancellor’s findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Pacheco v. Pacheco, 770 So.2d 1007, 1009(¶ 8) (Miss.Ct.App.2000) (citing Dunaway v. Busbin, 498 So.2d 1218, 1221 (Miss.1986)). We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard. Carrow, 741 So.2d at 202(¶ 9) (citing Turpin v. Turpin, 699 So.2d 560, 564(¶ 15) (Miss.1997)).

ISSUES AND ANALYSIS

I. Whether the trial court committed error in denying Barbara’s motion for relief from the order granting modification and declarátory judgment.

II. Whether the decision of the trial court is against the overwhelming weight of the evidence.

¶ 6. Due to similarity, we will discuss these two issues together. Barbara argues that the trial court committed error when it ruled that a material change in circumstances existed after the entry of the judgment in the United Kingdom. Generally in our courts, the enforcement of a judgment entered in a foreign nation is governed by state law and the principle of comity. Laskosky v. Laskosky, 504 So.2d 726, 729 (Miss.1987). In applying this principle, the trial judge exercises discretion. Id. After reviewing the record, nothing suggests that the chancellor abused her discretion in giving full faith and credit to the foreign divorce decree. Furthermore, Barbara failed to offer any evidence suggesting that the decree is invalid.

¶ 7. Finally, this Court has ruled that a divorce “obtained subsequent to a separate maintenance decree, was proof of a material change in circumstances sufficient to warrant a modification of amounts awarded in the separate maintenance decree.” Landrum v. Landrum, 498 So.2d 1229, 1230 (Miss.1986). That is precisely how the chancellor ruled in this situation. Thus, these issues are without merit.

¶ 8. THE JUDGMENT OF THE CHANCERY COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Abraham DIVINE, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02056-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.

      Craig Andrew Conway, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. John Smith was staying with his grandmother, Kathleen, at her home in Meridian, Mississippi, between July 14 and July 16, 2003. At some point during his stay, John was with his uncle, Abraham Divine. Divine and his wife, who is John’s mother’s half-sister, were living with Kathleen at the time. John and Divine were in a bedroom alone when Divine pulled his pants down and John’s pants down then inserted his penis into John’s rectum. When John’s mother came to pick him up on July 16, John told his mother and grandmother what had happened. John also told his mother that he did not want to return to his grandmother’s house if Divine was also there. At the time of the assault, John was seven years old and Divine was twenty-two. John’s mother took him to the emergency room for an exam and also notified the police on the same day that John told her what had happened.

¶ 2. On August 11, 2005, a jury in the Lauderdale County Circuit Court found Divine guilty of sexual battery. Divine was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Divine was also ordered to pay restitution in the amount of $764.80, AB fee of $1200, as well as court costs of $277.

¶ 3. Divine now appeals asserting the following issues: (1) the trial court erred in denying his motion to suppress his statement to the police; (2) the trial court erred in denying his jury instruction; (3) the trial court erred in failing to grant a mistrial as a result of improper remarks made by the prosecution; and (4) the guilty verdict was not supported by the evidence.

DISCUSSION

I. DID THE TRIAL COURT ERR IN DENYING DIVINE’S MOTION TO SUPPRESS?

¶ 4. In his first issue on appeal, Divine asserts that the trial court erred in denying his motion to suppress his statement to the police. Divine states that his pretrial statements were the result of threats and promises made by the police officer who was questioning him. For a confession to be admissible it must not have been given as a result of promises, threats or inducements. Dancer v. State, 721 So.2d 583, 587(¶ 17) (Miss.1998). The prosecution must prove beyond a reasonable doubt that the confession was made voluntarily and meets this burden by producing “testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward.” Morgan v. State, 681 So.2d 82, 86-87 (Miss.1996). Our standard of review regarding the admissibility of confessions is as follows: “So long as the court applies the correct legal standards, ‘we will not overturn a finding of fact made by a trial judge unless it be clearly erroneous.’ Where, on conflicting evidence, the court makes such findings this Court generally must affirm.” Alexander v. State, 610 So.2d 320, 326 (Miss.1992) (internal citations omitted).

¶ 5. During the suppression hearing, Detective James Hall from the Meridian Police Department testified that he conducted the interview with Divine. Detective Hall testified that he made no promises of leniency to Divine. Rather, Detective Hall stated that he told Divine to “tell the truth,” “come clean” and he would tell the district attorney of Divine’s cooperation. The statements to “tell the truth” and “come clean” have been held not to be promises of leniency. Flowers v. State, 601 So.2d 828, 831 (Miss.1992). Likewise, a statement that the district attorney would be informed of a defendant’s cooperation is not an implied promise of leniency if no other coercive tactics are also employed. Greer v. State, 818 So.2d 352, 357(¶ 14) (Miss.Ct.App.2002). The trial court found that Detective Hall made no other promises of help to Divine. Upon review of the interview, we agree with the trial court. Furthermore, Divine has failed to show by testimony or otherwise that the alleged promises of leniency promised by Detective Hall were the proximate cause of his confession to sexual battery. See Layne v. State, 542 So.2d 237, 241 (Miss.1989). This issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING DIVINE’S JURY INSTRUCTION?

¶ 6. In his second issue on appeal, Divine argues that the trial court erred in denying his jury instruction on the lesser crime of lustful touching of a child. In reviewing the denial of a jury instruction, the appellate court must consider not only the denied instruction but also all of the instructions which were given to ascertain if error lies in the refusal to give the requested instruction. See Coleman v. State, 697 So.2d 777, 782 (Miss.1997). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in another instruction, or is without foundation in the evidence.” Heidel v. State, 587 So.2d 835, 842 (Miss.1991). Furthermore, a jury instruction on a lesser-included offense is to be given only when a defendant “points to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser-included offense.” Ladnier v. State, 878 So.2d 926, 932(¶ 21) (Miss.2004).

¶ 7. Divine claims that the testimony at trial was conflicting, therefore the jury could have found him guilty of the lesser offense of lustful touching of a child. The lustful touching statute states, in part:

(1) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with . hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, ... shall be guilty of a felony....

Miss.Code Ann. § 97-5-23 (Rev.2006). The sexual battery statute under which Divine was indicted states, in part: “(1) A person is guilty of sexual battery if he or she engages in sexual penetration with: ... (d) A child under the age of (14) years of age, if the person is twenty-four (24) or more months older than the child.” Miss. Code Ann. §' 97-3-95(l)(d) (Rev.2006).

¶ 8. In reviewing the testimony, the evidence was not conflicting. Dr. James Snyder, who examined John on the night of July 16, testified that John’s rectum was swollen and there was a tear on the “12:00 position of the rectal verge, or the opening into the rectum.” Dr. Snyder stated that these injuries were consistent with sexual battery. On cross-examination, Divine took issue with the record of the exam describing the tear in John’s rectum as “superficial.” Dr. Snyder explained that the term “superficial” described the depth of the injury and not necessarily the mechanism of the injury. Divine seems to argue that a slight tear in John’s rectum is not enough of a substantial injury to warrant his conviction of sexual battery. However, this evidence clearly indicates that John was penetrated, thus meeting the definition of “sexual penetration” pursuant to the sexual battery statute. See Miss.Code Ann. § 97-3-97(a) (Rev.2006) (any penetration of the genital or anal openings of another person’s body by any part of a person’s body).

¶ 9. Divine also argues that John’s mental state during the battery as well as Kathleen stating that John had told “fibs” before are further examples of conflicting evidence. Apparently, Divine argues that because John stated that he felt dumb and mad during and after the assault, the jury might be inclined to find him guilty of the lesser crime of lustful touching. We are unpersuaded by this argument as there is no requirement in either the sexual battery statute or the lustful touching statute that the victim’s emotional state be an issue. In regards to the statement by Kathleen that John had told “fibs” before, we are not convinced that this rises to the level of conflicting evidence warranting a lustful touching jury instruction.

¶ 10. The trial court found that there was no evidence or factual basis to support a lustful touching instruction, and we find the same. This issue is without merit.

III. DID THE TRIAL COURT ERR IN FAILING TO GRANT A MISTRIAL AS A RESULT OF IMPROPER REMARKS MADE BY THE PROSECUTION?

¶ 11. In his third issue on appeal, Divine argues that the trial court erred in failing to grant a mistrial as a result of improper remarks made by the prosecution. It is well settled that the grant or denial of a motion for mistrial is within the discretion of the trial court and, upon review, we must determine whether the trial court abused its discretion in its ruling. Pulphus v. State, 782 So.2d 1220, 1222(¶ 10) (Miss.2001). The prosecutor may comment upon any facts introduced into evidence, and he may draw whatever deductions and inferences that seem proper to him from the facts. Rogers v. State, 796 So.2d 1022, 1027(¶ 15) (Miss.2001). This Court recognizes that the trial judge is in the best position to determine whether an objectionable remark has had any prejudicial effect. Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990).

¶ 12. Divine claims that a mistrial should have been granted as a result of two remarks. At one point during the closing arguments, the prosecution stated that “[t]his man right here is a sexual predator.” At another point, the prosecution referred to Divine as a child molester. We note that immediately before referring to Divine as a child molester the prosecution was reading portions of Divine’s statement wherein he stated, “I am not a child molester.” In ruling upon Divine’s motion for a mistrial, the trial court found that “it is fair argument based upon the testimony and the evidence ... there was a basis for that statement, so your motion will be denied.” We agree with the trial court. The facts of the case showed that Divine sexually penetrated his nephew; thus, we cannot find that the trial court erred in failing to grant a mistrial.

IV. WAS THE GUILTY VERDICT SUPPORTED BY THE EVIDENCE?

¶ 13. In his final issue on appeal, Divine argues that the trial court erred in denying his motion for a directed verdict and motion for a judgment notwithstanding the verdict or, in the alternative, a new trial as the verdict was not supported by the evidence. In reviewing the sufficiency of the evidence, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005). Furthermore, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997).

¶ 14. Divine’s sole argument is that the evidence was insufficient to prove that penetration occurred. However, Divine cites to the same testimony he considered conflicting in his second issue, namely the injuries to John’s rectum, John’s apparent lack of pain during the assault, and Kathleen’s testimony that John had told “fibs” before. The testimony concerning the injuries to John’s rectum and John’s testimony that Divine assaulted him were sufficient for the jury to draw a reasonable inference that Divine sexually penetrated John’s rectum. In fact, the testimony does not conflict at all. We find no merit to this issue.

¶ 15. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE OR ANY OTHER EARLY RELEASE AS A SEX OFFENSE, PAY $764.80 RESTITUTION TO THE VICTIM AND PAY $1200 AB FEE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR. ROBERTS AND CARLTON, JJ., NOT PARTICIPATING.

      . The Court of Appeals declines to identify the minor victims of sexual crimes; therefore, certain names have been substituted with aliases.


author: CHANDLER, J.,

text:
    C.M., Individually and on Behalf of R.D.H., Jr., a Minor, and M.B.V.H., A Minor, Appellant v. R.D.H., Sr., Appellee.
    No. 2005-CA-02037-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.

      Tina Lorraine Nicholson, Jackson, attorney for appellant.
    Keri Temple Haralson, Brandon, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. C.M. appeals from an ex parte temporary restraining order issued by the Hinds County Chancery Court which awarded temporary physical custody of her two minor children, M.B.V.H. and R.D.H., Jr., to her ex-husband, R.D.H., Sr. Due to a jurisdictional defect, the temporary restraining order and all previous orders made by the Hinds County Chancery Court in this case were set aside by the chancellor. C.M. appeals, arguing:

I. WHETHER THE TRIAL COURT VIOLATED C.M.’S DUE PROCESS RIGHTS BY TRANSFERRING TEMPORARY CUSTODY OF THE MINOR CHILDREN TO R.D.H., Sr.
II. WHETHER THE TRIAL COURT ERRED BY TAKING TESTIMONY DURING HEARINGS REGARDING R.D.H., SR.’S MOTION TO DISSOLVE THE ORDER TERMINATING HIS PARENTAL RIGHTS.
III. WHETHER THE TRIAL COURT ERRED BY FAILING TO DISMISS R.D.H., SR.’S MOTION TO DISSOLVE THE ORDER TERMINATING HIS PARENTAL RIGHTS.
IV. WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT C.M.’S MOTION FOR SANCTIONS.

¶ 2. Because the court addressed the jurisdictional problem and set aside all previous entries of judgment and orders, the question of the propriety of the entry of the court’s orders and ex parte hearings is moot. As such, we affirm the lower court’s order.

FACTS

¶ 3. R.D.H., Sr. and C.M. were married in 1996 and lived in Morton, Mississippi. Two children, M.B.V.H. and R.D.H., Jr., were born from the marriage. In 1998, R.D.H., Sr. pled guilty to physically assaulting four minor children, all of whom were unrelated to him. R.D.H., Sr. served time in the Morton city jail for ninety days, coming home on the weekends for visits. During this time, R.D.H., Sr. was convicted of auto theft for stealing a police vehicle and served an additional sentence in Parchman. Upon his release from prison in 2001, R.D.H., Sr. maintains that he made attempts to reconnect with his children. C.M. disputes this, saying that R.D.H., Sr. made no effort to visit or communicate with his children until 2005.

¶ 4. During R.D.H., Sr.’s incarceration in Parchman, the couple divorced. C.M. moved to Jackson, Mississippi, with M.B.V.H. and R.D.H., Jr. and met J.M. C.M. and J.M. later married and moved to Crystal Springs, Mississippi.

¶ 5. On February 23, 2004, C.M. sought to terminate R.D.H., Sr.’s parental rights. She served R.D.H., Sr. through process by publication, stating that she did not know R.D.H., Sr.’s whereabouts since his release from prison. On June 29, 2004, the Hinds County Chancery Court terminated the parental rights of R.D.H., Sr. as to his two minor children, M.B.V.H. and R.D.H., Jr. J.M. adopted the minor children the same day.

¶ 6. Approximately one year later, R.D.H., Sr. contested these judgments by filing a motion to extinguish the order terminating his parental rights. He later filed an amended petition for emergency relief for temporary custody, alleging that his children would suffer bodily harm absent judicial involvement. R.D.H., Sr. claimed that C.M. lied about not knowing R.D.H., Sr.’s whereabouts and therefore service on him was improper, that J.M. physically abused the children, and that J.M. provided alcoholic beverages to the minor children.

¶ 7. Upon hearing testimony from R.D.H., Sr. and C.M.’s mother, E.M., the lower court ruled that C.M. did not properly serve process on R.D.H., Sr. for the termination of parental rights proceedings and that the children may have been in immediate harm. The court granted R.D.H., Sr. temporary custody of M.B.V.H. and R.D.H., Jr., and directed the sheriff to remove the minor children from C.M.’s custody until further proceedings. R.D.H., Sr. also filed a motion for contempt on October 11, 2005, stating that C.M. made • deliberate misrepresentations to the court regarding any diligent efforts to effectuate proper service of process for the termination of R.D.H., Sr.’s parental rights.

¶ 8. A third hearing was held on October 20, 2005, at which both C.M. and R.D.H., Sr. were present. After listening to testimony, the court determined that it did not have proper jurisdiction to hear the matter since the original divorce and child custody proceedings were held in Scott County Chancery Court. Therefore, the court directed that any further action involving custody and child support should be brought in the proper venue, Scott County Chancery Court, pursuant to Mississippi Code Annotated Section 93-5-23 (Rev. 2004). All motions, pleadings, previous orders and pending hearings were set aside in the matter. In accordance with the divorce decree ordered in Scott County, physical custody of the children was returned to C.M.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY TRANSFERRING TEMPORARY CUSTODY OF THE MINOR CHILDREN TO R.D.H., Sr.

¶ 9. C.M. argues that the lower court violated her due process rights by not providing her with adequate notice of two ex parte hearings.

¶ 10. A noncustodial parent may file a habeas action to obtain temporary custody upon a showing that the custodial parent has abandoned the child or has become “altogether unfit” to have custody. Wade v. Lee, 471 So.2d 1213, 1215 (Miss.1985). A chancery court, “as guardian of all minor children in its district, is vested with authority to temporarily grant custody pending an investigation by a court appointed guardian ad litem, or the Hinds County Welfare Department, or Hinds County Youth Court....” Adams v. Adams, 467 So.2d 211, 216 (Miss.1985).

¶11. Under M.R.C.P. 65(b), a temporary restraining order (TRO) may be granted without notice to the adverse party:

(1) if it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required.

The granting of a TRO is within the discretion of the trial judge, and we will not disturb the order absent an abuse of discretion. Moore v. Sanders, 558 So.2d 1383, 1385 (Miss.1990). Once a TRO has been ordered, a hearing for a preliminary injunction must be set for the earliest possible time. M.R.C.P. 65(b).

¶ 12. In the present case, the chancellor was presented with a motion for an emergency TRO alleging that M.B.V.H. and R.D.H., Jr. lived in a potentially harmful atmosphere. R.D.H., Sr. alleged that J.M. served the children beer to get them to sleep at night, and that J.M. beat the children if they did not call him “daddy.” R.D.H., Sr. further asserted that he had no notice or knowledge of the proceedings regarding the termination of his parental rights. E.M.’s testimony corroborated R.D.H., Sr.’s allegations. Therefore, we find no evidence in the record that the chancellor abused his discretion by granting the TRO,

¶ 13. More importantly, within Mississippi only the court that issues an original custody order has exclusive and continuing jurisdiction to modify the order. Tollison v. Tollison, 841 So.2d 1062, 1066(¶ 13) (Miss.2003). Filing a petition for termination of parental rights in the county in which the child or defendant resides is only allowed in the absence of a prior custody ruling. Id. The Scott County Chancery Court entered the initial order of child custody. Therefore, Scott County had continuing jurisdiction over any subsequent modifications of child custody, and the Hinds County Chancery Court properly corrected its previous judgment upon recognizing this defect.

¶ 14. Our supreme court has stated that a judgment is void if the court that rendered it lacked jurisdiction of the subject matter. Miss. Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 96(¶28) (Miss.2001) (citations omitted). “[Rjeview by appellate courts of immaterial, unnecessary, or moot questions will not ordinarily be considered.” Insured Sav. and Loan Assoc. v. State, ex rel Patterson, 242 Miss. 547, 556, 135 So.2d 703, 707 (1961). The Hinds County chancellor recognized Scott County’s continuing jurisdiction and vacated all previous orders which would have modified the original child custody order. Thus, C.M.’s argument is moot.

II. WHETHER THE TRIAL COURT ERRED BY TAKING TESTIMONY DURING HEARINGS REGARDING R.D.H., SR.’S MOTION TO DISSOLVE THE ORDER TERMINATING HIS PARENTAL RIGHTS.

¶ 15. C.M. argues that the court erred by soliciting improper testimony during the ex parte hearings for an emergency TRO. By hearing testimony referring to the inadequate service of process upon R.D.H., Sr. for the termination of parental rights, C.M. maintains that the court improperly held a hearing regarding the merits of R.D.H., Sr.’s motion to extinguish that order without providing her notice.

¶ 16. Our standard of review regarding the admission or exclusion of evidence is abuse of discretion and we will not reverse unless the error “adversely affects a substantial right of a party.” Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 12) (Miss.1999).

¶ 17. In matters regarding child custody and visitation, it has been repeatedly held that the best interests of the child are of paramount importance. Morgan v. West, 812 So.2d 987, 992(¶ 13) (Miss.2002). This Court has held that “in order for the judge to determine custody of the minor child all testimony regarding factors of the child’s best interest must be allowed.” E.J.M. v. A.J.M., 846 So.2d 289, 293(¶ 12) (Miss.Ct.App.2003).

¶ 18 R.D.H., Sr. alleged that the children would suffer irreparable harm if left in C.M.’s custody. E.M. testified that J.M. provided beer to the minor children and that an unrelated male adult kept the children during the day while R.D.H., Sr. and C.M. worked. R.D.H., Sr. stated his willingness to legally remain a parent to the children by testifying that he was unaware of the proceedings terminating his parental rights. R.D.H., Sr. alleged, and E.M. corroborated, the allegation that C.M. purposefully did not alert R.D.H., Sr. to the proceedings because she wanted her new husband, J.M., to adopt the children. Such testimony was relevant in order for the chancellor to weigh the factors regarding the children’s best interests.

¶ 19. C.M. further asserts that her due process rights were violated because she received no notice of the ex parte hearings. As stated above, M.R.C.P. 65(b) permits emergency requests to be heard without notice in accordance with a showing of immediate and irreparable harm. R.D.H., Sr. asserted in his initial pleadings that irreparable injury or harm would come to the children if the emergency hearings were denied. R.D.H., Sr. provided specific allegations of immediate harm, which were corroborated by other testimony. Thus, we find this argument to be without merit.

III. WHETHER THE TRIAL COURT ERRED BY FAILING TO DISMISS R.D.H., SR.’S MOTION TO DISSOLVE THE ORDER TERMINATING HIS PARENTAL RIGHTS.

¶ 20. C.M. argues that R.D.H., Sr.’s motion to dissolve the order terminating his parental rights should have been dismissed as untimely. The court entered an order terminating R.D.H., Sr.’s parental rights on June 29, 2004. R.D.H., Sr. filed his motion for relief on August 11, 2005.

¶ 21. M.R.C.P. 60(b) states that a party seeking relief from a judgment or order based on fraud, misrepresentation, or misconduct under 60(b)(1) must file the motion within six months upon entry of the judgment, order or proceeding. For any other reason justifying relief from the judgment under 60(b)(6), the motion must be filed within a “reasonable time.” Id.

¶ 22. R.D.H., Sr. filed his petition approximately one year after the judgment terminating his parental rights. R.D.H., Sr. testified that he did not learn of the proceedings until the summer of 2005, at which time he immediately sought an attorney to remedy the situation. While it is arguable that R.D.H., Sr. may have been time-barred from filing a petition for post-judgment relief based on fraud, the order affected his fundamental rights and could therefore be considered under the general provision of 60(b)(6). Id.

¶ 23. Moreover, we find this issue to be moot because the original order terminating his parental rights is void, as discussed above, due to lack of subject matter jurisdiction. We have held that “cases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot.” Monaghan v. Blue Bell, Inc., 393 So.2d 466, 466 (Miss.1980). This Court will not adjudicate moot questions. Id. at 467.

¶ 24. R.D.H., Sr. further claimed that the court never had personal jurisdiction over him in the termination proceedings because C.M. purposely avoided proper service of process. R.D.H., Sr. stated that upon his release from prison, he returned to his childhood home in Morton. This was the same address where he and C.M. lived during their marriage. C.M. testified that she knew E.M. had been in contact with R.D.H., Sr. in Morton, yet C.M. claims that she did not know R.D.H., Sr.’s current address. From the testimony, the chancellor determined that C.M. did not make a diligent effort to serve proper process. We find nothing in the record that shows that the' chancellor abused his discretion in making that determination.

¶ 25. The Scott County Chancery Court which originally ordered the child custody arrangement had continuing jurisdiction and no other action affecting modification of its order may be filed in another county. Tollison, 841 So.2d at 1066(¶ 11). However, a court with continuing jurisdiction may transfer a case to the county where the parents or child reside if adjudication in that county would be more efficient. Reynolds v. Riddell, 253 So.2d 834, 837 (Miss.1971). both, whose pleading or motion (1) is frivolous or (2) is filed for the purpose of harassment or delay. In reviewing whether the imposition of sanctions is warranted under Rule 11, we use an abuse of discretion standard. January v. Barnes, 621 So.2d 915, 921 (Miss.1992). We find no evidence in the record that R.D.H., Sr. pursued litigation in the sole attempt to harass C.M. R.D.H., Sr. sought relief for a fundamental right, that of being a parent to his two children. Therefore, we do not find an abuse of discretion by the chancellor and affirm the lower court’s orders.

¶ 29. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

¶ 26. Although the Hinds County chancellor initially granted C.M.’s motion to terminate R.D.H., Sr.’s parental rights, the court did not have proper subject matter jurisdiction to do so. When presented with information regarding the jurisdictional problem, the chancellor immediately corrected the defect by setting aside his previous orders and instructing that any further proceedings regarding the case be brought before the Scott County Chancery Court, pursuant to Mississippi Code Annotated Section 93-5-23. By the lower court setting aside the initial motion to terminate R.D.H., Sr.’s parental rights, we are unable to find that a live controversy exists or that C.M. has suffered a substantial interference with her constitutional rights.

IV. WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT C.M.’S MOTION FOR SANCTIONS.

¶ 27. C.M. finally argues that she should have been awarded sanctions because R.D.H., Sr. filed motions merely to harass C.M.

¶ 28. Under 11(b) of the Mississippi Rules of Civil Procedure, the court may award reasonable expenses and attorney’s fees against a party or his attorney, or


author: SEE, Justice. STUART, Justice

text:
    WOODLAND GROVE BAPTIST CHURCH v. WOODLAND GROVE COMMUNITY CEMETERY ASSOCIATION, INC.
    1040679.
    Supreme Court of Alabama.
    April 28, 2006.
    Rehearing Denied July 21, 2006.

      Chriss H. Doss of Chriss H. Doss & Associates, P.C., Birmingham, for appellant.
    Debbie Lindsey Jared and Charles Matthew Brunson of Jared & Brunson, Elba, for appellee.
   SEE, Justice.

The Woodland Grove Baptist Church (“the Church”) appeals from the trial court’s judgment quieting title to the Woodland Grove Community Cemetery in the Woodland Grove Community Cemetery Association, Inc. We reverse the trial court’s judgment and render a judgment for the Church.

Facts

The Woodland Grove Community Cemetery (“the cemetery”) is located in Coffee County. The Woodland Grove Baptist Church was constituted on August 7, 1855, and was incorporated on August 13, 2002. For more than 150 years, the cemetery has been a community cemetery; both members of the Church and nonmembers are buried in the cemetery. The cemetery has been maintained by the Church since the Church was established in 1855, holding “work days” to clean both the Church grounds and the cemetery. Both members of the Church and nonmembers have participated in these “work days.”

On March 9, 1947, Pearl B. Moseley was elected to be the Church clerk. While acting as the Church clerk, Moseley established the Woodland Grove Cemetery Fund (“the fund”). Donations for the purpose of maintaining the cemetery were deposited in the fund, and, among other things, the fund was used to pay Church members to maintain the cemetery. The fund was established using the Church’s tax-identification number. In addition to managing the fund, Moseley managed the affairs of the cemetery and acted as the contact person for those who were arranging a burial there. When Moseley retired, Julia Brooks was elected to the position of Church clerk. Brooks performed the same duties that Moseley had previously performed, including the management of the cemetery and the fund.

In 2000, the Church erected a new structure adjacent to the cemetery; the new structure interferes with access to the cemetery. Because access to the cemetery had become restricted, in the spring of 2001, a group of individuals whose relatives were buried in the cemetery became concerned about the security and continued existence of the cemetery. This group of individuals formed the Woodland Grove Community Cemetery Association, Inc. (“the Association”), which was incorporated on December 14, 2001. Some of the members of the Association belong to the Church, but others do not. Brooks, who had resigned from her position as Church clerk in April 2001, was one of the incorpo-rators of the Association. Shortly after the Association was formed, Brooks went to the bank and changed the name on the account constituting the fund from the “Woodland Grove Cemetery Fund” to the “Woodland Grove Community Cemetery Association, Inc.” She testified at trial that she had consulted members of the Association before making the change but that in changing the name on the account she had acted unilaterally; no one from the Church had authorized the name change.

In March 2002, the Association petitioned the Coffee County Probate Court for the appointment of a commission to locate and mark the boundaries of and plat and survey the cemetery pursuant to § 11-17-1, Ala.Code 1975. In April 2002, the Church sued the Association in the Coffee Circuit Court seeking to quiet title to the property on which the cemetery is located (“the cemetery property”) under § 6-6-540, Ala.Code 1975.

In April 2003, the Association moved the probate court to remove to the circuit court its petition for a boundary commission. The probate court granted the Association’s motion. However, in June 2003, the circuit court ordered that the petition be returned to the probate court because, it reasoned, the Alabama Code contains no provisions providing for the transfer of a petition filed pursuant to § 11-17-1, Ala. Code 1975. The probate court stayed action on the Association’s petition for a boundary commission pending the circuit court’s adjudication of the Church’s action to quiet-title.

In January 2005, the circuit court in the Church’s quiet-title action found that the Association held superior title to the cemetery property. The Church appeals.

Standard of Review

In an action to quiet title, when the trial court hears evidence ore tenus, its judgment will be upheld unless it is palpably wrong or manifestly unjust. Mid-State Homes, Inc. v. King, 287 Ala. 180, 249 So.2d 836 (1971); and Webb v. Griffin, 243 Ala. 468, 10 So.2d 458 (1942). However, the presumption of correctness does not attach to a trial court’s conclusions of law. Cullman Wholesale, Inc. v. Simmons, 592 So.2d 1031, 1034-35 (Ala.1992); Gaston v. Ames, 514 So.2d 877, 878 (Ala.1987); Smith v. Style Adver., Inc., 470 So.2d 1194 (Ala.1985); and League v. McDonald, 355 So.2d 695 (Ala.1978).

Analysis

“The purpose of [an action to quiet title] is not to invest the court with jurisdiction to sell or dispose of the title to the land, but merely to determine and settle [title] as between the [plaintiff] and the defendants.” Dake v. Inglis, 239 Ala. 241, 243, 194 So. 673, 674 (1940) (citing Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217 (1929); and Venable v. Turner, 236 Ala. 483, 183 So. 644 (1938)). This Court has applied a burden-shifting analysis to actions to quiet title under § 6-6-540, Ala. Code 1975:

“Under a statutory bill to quiet title, where it is shown that [the plaintiff] is in peaceable possession of the land, either actual or constructive, at the time of the filing of the bill and that there was no suit pending to test the validity of the title, a prima facie case is made out, entitling the [plaintiff] to relief, and the burden is then upon [the defendant] to establish his claim to the land. When the [defendant] shows legal title to the land, the burden of avoiding it by showing superior title by adverse possession (or by a better paper title) shifts to the [plaintiff].”

Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 257, 210 So.2d 814, 816-17 (1968) (citing Stewart v. Childress, 269 Ala. 87, 92, 111 So.2d 8 (1959); and Webb v. King, 268 Ala. 282, 105 So.2d 653 (1958)). See also Machen v. Wilder, 283 Ala. 205, 208, 215 So.2d 282, 284 (1968) (“In a statutory suit to quiet title, a prima facie case is made where it is shown that the [plaintiff] is in the peaceful possession of the land, either actual or constructive at the time of the filing of the bill and that there was no suit pending to test the validity of title, and the burden is then upon the [defendant] to establish his claim to the land.... But when the [defendant] shows legal title to the land, the burden of avoiding it by showing superior title by adverse possession shifts to the [plaintiff].”).

In order for the trial court to hear the Church’s quiet-title action, (1) the Church must have alleged in its complaint that it was in peaceable possession of the cemetery property, and (2) the trial court must have found that the Church showed that it was in peaceable, rather than scrambling, possession of the cemetery property. For the trial court to then conclude, as it did, that the Association held superior title to the cemetery property, it must have found (3) that the Association established legal title to the cemetery property, and (4) that after the burden shifted the Church was not able to show that its title was superior to that of the Association. Wiggins, 282 Ala. at 257, 210 So.2d at 816-17. The Church contends that the trial court improperly concluded that the Association’s claim to the cemetery property was superi- or to its claim. We agree; the trial court did err.

I. The Church alleged that it was in actual peaceable possession of the cemetery property

The plaintiff in a quiet-title action must allege in its complaint that it is in actual or constructive peaceable possession of the property to which it is seeking to quiet title. City of Montgomery v. Brown, 285 Ala. 64, 228 So.2d 820 (1969); and Donohoo v. Smith, 207 Ala. 296, 92 So. 455 (1922). In this ease, the Church alleged in its complaint that

“Woodland Grove Baptist Church, either as a religious association and/or by and through its Trustees, ... hold[s] title to and/or [has] been in actual peaceful possession of land on which a cemetery sits, in whole or in part, for more than thirty (30) continuous years prior to the filing of this lawsuit.”

Thus, the Church satisfied the first requirement for going forward with a quiet-title action.

II. The Church showed it was in peaceable possession of the cemetery property

The trial court has jurisdiction over quiet-title actions in which the plaintiff shows that he or she is in peaceable, rather than scrambling, possession of the property. Orso v. Cater, 272 Ala. 657, 661, 133 So.2d 864, 868 (1961) (“It is true that the [plaintiff] cannot recover under the statute unless his proof shows his peaceable possession, as contradistinguished from a contested, disputed or scrambling possession.”); Hinds v. Federal Land Bank, 237 Ala. 218, 219, 186 So. 153, 154 (1939) (“a scrambling, disputed, or contested possession will not support [a quiet-title] action”); and Buchmann Abstract & Inv. Co. v. Roberts, 213 Ala. 520, 521, 105 So. 675, 676 (1925) (“we are constrained to hold that the possessory acts herein indicated on the part of respondent were sufficient as a contest of complainant’s possession so as to destroy the peaceable character thereof and constitute it a disputed, contested or scrambling one.... This conclusion destroys the jurisdiction of the court over the cause at its very threshold, and renders unnecessary a consideration of the questions which constitute any of the issues as to the contest of title.”). The plaintiff in a quiet-title action must present evidence to support “a peaceable possession in the [plaintiff] as contradistin-guished from a contested, disputed or scrambling possession.” Price v. Robinson, 242 Ala. 626, 627, 7 So.2d 568, 569 (1942) (citing Randle v. Daughdrill, 142 Ala. 490, 39 So. 162 (1905), and George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202 (1908)); see also Cobb v. MacMillan Bloedel, Inc., 604 So.2d 344, 345 (Ala.1992) (“In an action to quiet title to real property, the plaintiff must prove that he was in actual or constructive possession of the property and that his possession was peaceable, as distinguished from scrambling or disputed; furthermore, there must be no suit pending at the time the suit is commenced testing the defendants’ claims.” (citing Denson v. Gibson, 392 So.2d 523 (Ala.1980))).

Whether a plaintiff is in peaceable possession is a question of fact, Price v. Robinson, 242 Ala. at 627, 7 So.2d at 569, that is evaluated as of the date the action is commenced. Davidson v. Black- wood, 250 Ala. 263, 34 So.2d 205 (1948). “[O]ne is in peaceable possession as opposed to scrambling possession when at the time of the suit no other party is denying the fact of complainant’s possession. If both parties claim actual possession or are scrambling for it, then the possession is not peaceable.” Denson, 392 So.2d at 524-25. “The distinction between peaceable possession and scrambling possession is that ‘in the former, an adverse party may be denying the [plaintiffs] right to possession, but in the latter there is a denial of the fact of his actual possession.’ ” Cullman Wholesale, 592 So.2d at 1034 (quoting Adams v. Bethany Church, 380 So.2d 788, 791 (Ala.1980)).

The Church demonstrated that it was in peaceable, as opposed to scrambling, possession. Although the trial court did not make an express finding of fact regarding whether the Church was in peaceable possession of the cemetery property, “[w]here a trial court does not make specific findings of fact concerning an issue, we will assume that the trial court made those findings necessary to support its judgment, unless such findings are clearly erroneous.” Sundance Marina, Inc. v. Reach, 567 So.2d 1322, 1324 (Ala.1990) (citing Robinson v. Hamilton, 496 So.2d 8 (Ala.1986)). The trial court had to conclude that the Church’s possession was peaceable and not scrambling; otherwise, it could not have proceeded with the Church’s quiet-title action. The Association alleged that the Church was not in peaceable possession of the cemetery property, “and at best had only ‘scrambling possession’ which is insufficient to maintain the [quiet-title] action.” Association’s brief, p. 14. However, the Association did not provide facts in support of that allegation.

This Court has held that “[m]erely going on the property which is at the time in the actual possession of someone else, and claiming title to it and warning others off it” does not constitute a challenge to the other’s peaceable possession so as to render it scrambling and prohibit the other from bringing an action to quiet title. Adams, 380 So.2d at 791. In this case, the Association’s actions did not go even that far. It did not claim title to the cemetery property, nor did it warn others off the property. Thus, the Association’s only action — going onto the cemetery property in the fall of 2001 to clean the grounds — was insufficient to render the Church’s possession of the cemetery property scrambling rather than peaceable.

Nor does the Association’s petition in the probate court for a boundary determination render the Church’s possession scrambling rather than peaceable. When the Church filed its action to quiet title, the Association had petitioned the probate court to appoint a commission to locate and mark the boundary of the cemetery pursuant to § 11-17-1, Ala.Code 1975. However, the Association’s petition in the probate court does not deny the Church’s peaceable possession of the cemetery property. Cullman Wholesale, 592 So.2d at 1034. Section 11-17-1, Ala.Code 1975, provides that “[fjive or more citizens may petition the judge of probate” for the appointment of such a commission. A petition brought under this statute is not a challenge to the fact of another party’s peaceable possession of property; it is merely an action to establish the boundaries of a burial ground, and such an action can be brought by any five individuals, regardless of whether they have an ownership claim or interest in the property at issue. § 11-17-1, Ala.Code 1975.

The Association also requested that the probate court “designate the property on said map indicated as Cemetery ... as belonging to Woodland Grove Community Cemetery Association.” However, the Association’s “challenge” at most denies the Church’s right to possession, not the fact of the Church’s peaceable possession, and is, therefore, not sufficient to defeat the Church’s claim of peaceable possession. See Cullman Wholesale, 592 So.2d at 1034.

Moreover, even if we considered the Association’s petition for a boundary commission as an action challenging the fact of the Church’s peaceable possession, merely maintaining an action challenging title to the property, without more, is insufficient to defeat the Church’s claim of peaceable possession. As this Court has explained:

“‘But the statute requires that such possession shall be “peaceable.” So the question arises, what is peaceable possession? It cannot mean that it is peaceable unless there be some legal proceeding in progress to test the title or right to the possession; for the object of the statute is to allow the party who is in possession, and who cannot force the adversary claimant to institute any proceeding, to bring said party into court in order to determine whether he has any just claim to the property. The word “peaceable,” then, refers to the character of his possession. So long as his possession is so clear that no one is denying the fact of his actual or constructive possession, it is peaceable, although some other person may be denying his right to possession.’ ”

Chestang v. Tensaw Land & Timber Co., 273 Ala. 8, 11, 134 So.2d 159, 161 (1961) (quoting George E. Wood Lumber Co., 157 Ala. at 76-78, 47 So. at 203).

Thus, the Church was in peaceable possession of the cemetery property when it initiated the current action to quiet title. Because the Church was in peaceable possession of the cemetery property, the Church established a prima facie case that entitled it to relief. Wiggins, 282 Ala. at 257, 210 So.2d at 816-17.

III. The Association did not establish legal title to the cemetery property

In a statutory bill to quiet title, once the plaintiff establishes that it is in peaceable possession of the disputed property, the burden shifts to the defendant to show legal title to the property.

“Under a statutory bill to quiet title, where it is shown that [the plaintiff] is in peaceable possession of the land, either actual or constructive, at the time of the filing of the bill and that there was no suit pending to test the validity of the title, a prima facie case is made out entitling the [plaintiff] to relief, and the burden is then upon [the defendant] to establish his claim to the land.”

Wiggins, 282 Ala. at 257, 210 So.2d at 816 (citing Stewart, 269 Ala. at 92, 111 So.2d at 12). A defendant can overcome the presumption that the plaintiff is entitled to relief only by showing legal title to the land. As this Court has explained, “[i]t is not necessary for the plaintiff, in a [quiet-title action], to prove his title, further than to prove his peaceable possession; but the bill is to test the validity of the [defendant’s] title, and the burden is on the [defendant] to prove his title.” Smith v. Irvington Land Co., 190 Ala. 455, 460, 67 So. 250, 251 (1914); see also Newell v. Manly, 173 Ala. 205, 205, 55 So. 495, 496 (1911) (“The [plaintiff] does not have to prove his title at all, and if he is in peaceable possession the sole inquiry is whether the [defendant] has proved any title in himself.” (citing George E. Wood Lumber Co., 157 Ala. at 76-77, 47 So. at 203, Whittaker v. Van Hoose, 157 Ala. 286, 289, 47 So. 741, 741 (1908), and Dickinson v. Harris, 155 Ala. 613, 615, 47 So. 78, 78 (1908))). The Church was in peaceable possession of the cemetery property; therefore, the burden shifted to the Association to prove that it had legal title to the cemetery property.

This Court has said that legal title can be shown by a valid deed. Palmer v. Resolution Trust Corp., 613 So.2d 373, 375 (Ala.1993) (legal title created by a foreclosure deed); Harris v. Vettenburg, 548 So.2d 1036 (Ala.1989) (warranty deed conveying property to “B.J. Vettenburg” vested legal title to property in Betty Jean Vettenburg even though she had never been known as “B.J.”); and Mid-State Homes, Inc. v. Butler, 287 Ala. 584, 253 So.2d 511 (1971) (in an action for ejectment, the Court held that when a mortgagee foreclosed its duly recorded mortgage, purchased the property at the foreclosure sale, and received a foreclosure deed to the mortgaged property, legal title vested in it paramount to any junior mortgage).

The Association’s answer to the Church’s complaint denies the allegations made by the Church but does not allege legal title or any other claim to the cemetery property, nor did the Association present evidence to the trial court indicating that it had legal title to the cemetery property. In addition, the Association does not argue in its brief to this Court that it has legal title to the cemetery property. Instead, the Association contends that “the Association did clearly show superior title to the property.” Association’s brief, p. 15. However, under the applicable burden-shifting analysis, whether the Church or the Association holds “superior title” to the cemetery property is not a question to be decided until it has been determined (1) that the Church is in peaceable possession of the cemetery property (which we have determined) and (2) that the Association holds legal title to the cemetery property (which has not been determined). Wiggins, 282 Ala. at 257, 210 So.2d at 816-17.

To the extent that the Association argues that it has legal title, its argument is not persuasive. The Association’s purported title to the cemetery property is premised on its alleged ownership of the fund. However, it is unclear how any ownership in the fund shows ownership in the cemetery property. In addition, the Association does not show that the fund is independent of the Church. Furthermore, the Association’s claim to ownership of the fund is questionable.

The Association’s argument that ownership of the fund shows ownership of the cemetery property is as follows: When Moseley established the fund, she unwittingly set up an unincorporated association charged with the upkeep of the cemetery; Moseley served as the de facto trustee of that unincorporated association. The Association asserts that that unincorporated association was* independent of any other entity, including the Church. The Association contends that when Brooks took over the fund, she succeeded Moseley as the de facto trustee of the unincorporated association. The Association argues that Moseley, and then Brooks, held the cemetery property as the de facto trustees of an unincorporated association, and, under Alabama law, “ ‘a court of equity treats the active members of a voluntary nonbusiness association as the owners of its properties in trust for the community interest of the unincorporated society or association.’ ” Association’s brief, pp. 16-17 (citing Johnson v. Sweeney’s Lane Church of God, Inc., 270 Ala. 260, 264, 116 So.2d 899, 902 (1960)). Thus, the Association’s argument goes, when the Association was incorporated, it succeeded to the cemetery property held in trust by Brooks because, the Association claims, “where individuals undertake to maintain a cemetery as de facto trustees, and later incorporate for that common purpose, then the corporation is due to be appointed successor trustee for the cemetery.” Association’s brief, p. 17 (citing Shepherd v. Hickory Grove Cemetery Mem’l Fund, Inc., 649 So.2d 1266 (Ala.1994)). The problem with the Association’s argument is that it never identifies the initial source of Moseley’s alleged ownership of the cemetery property. Because there is no evidence indicating that Moseley ever acquired title to the cemetery property, there is no interest in the cemetery property that the Association, as successor in interest, could claim.

The Association argues that Moseley was the initial holder in trust of the cemetery on behalf of the Association because she was responsible for the fund, for arranging burials, and for the maintenance of the cemetery. This argument is unpersuasive because the Association does not show that the fund is distinct from the Church. While she was acting as the Church clerk, Moseley established the fund for the purpose of accepting donations to maintain the cemetery grounds. Moseley established the fund using the Church’s tax-identification number; thus, the fund held itself out to donors as an adjunct of the Church. No evidence was presented at trial to suggest that Moseley intended to perpetrate a fraud on the Internal Revenue Service by using the Church’s tax-identification number on a fund that she believed was an entirely separate entity from the Church. The Association also does not provide evidence that suggests that Brooks believed she was the de facto trustee of an unincorporated association. In fact, Brooks’s testimony at trial establishes the opposite. When asked at trial whether she considered herself a trustee of the fund, she stated: “I didn’t really classify myself as a trustee. I would think, just a caretaker of the account.”

Contrary to the Association’s argument that the fund is distinct from the Church, testimony at trial suggested that the fund was similar to other Church funds that had designated purposes, such as the Ball Fund, the Ladies’ Fund, and the Men’s Fund, and was not, as the Association claims, an unincorporated association distinct from the Church. Thus, the Association’s ownership of the fund is at best doubtful; it is this ownership that is the basis of the Association’s argument that it has superior title to the cemetery property.

The Association’s contentions do not support its argument that it possesses legal title to the cemetery property, that is, in the form of a deed or other legal document otherwise enforceable against the claim of others. Because the Association failed to show that it has legal title to the cemetery property, the Association did not overcome the Church’s prima facie case and the consequent presumption that the Church is entitled to relief. Wiggins, 282 Ala. at 257, 210 So.2d at 816; Smith, 190 Ala. at 460, 67 So. at 251; and Newell, 173 Ala. at 205, 55 So. at 496. Thus, the trial court’s decision is due to be reversed. Cullman Wholesale, 592 So.2d at 1034-35.

Conclusion

The Church established proof of its peaceable possession of the cemetery property and thereby presented a prima facie case presumptively entitling it to relief. Because the Association did not then establish that it held legal title to the cemetery property, it failed to overcome the presumption in favor of the Church. The judgment below was error as a matter of law; therefore, we reverse the judgment of the trial court and render a judgment for the Church.

REVERSED AND JUDGMENT RENDERED.

NABERS, C.J., and LYONS, WOODALL, SMITH, and PARKER, JJ„ concur.

HARWOOD, STUART, and BOLIN, JJ., dissent.

STUART, Justice

(dissenting).

I respectfully dissent. As the majority opinion recognizes, in order for Woodland Grove Baptist Church to recover in this quiet-title action, the Church had to establish that it was in peaceable possession of the cemetery property. Orso v. Cater, 272 Ala. 657, 661, 133 So.2d 864, 868 (1961). “[O]ne is in peaceable possession ... when at the time of the suit no other party is denying the fact of the complainant’s possession.” Denson v. Gibson, 392 So.2d 523, 524-25 (Ala.1980). I disagree with the majority’s conclusion that the Church established that it was in peaceable possession of the cemetery property.

A review of the evidence indicates that the Church did not establish that it was in peaceable possession of the cemetery property. The testimony of the former Church clerk, Julia Angela Brooks, shows that possession of the cemetery property was contested. The following exchange occurred during the direct examination of Brooks by the Church’s counsel:

“[Counsel for the Church]: Is it your contention that the church does not own the cemetery?
“[Brooks]: I don’t think anyone owns the cemetery.
“[Counsel for the Church]: Ma’am?
“[Brooks]: I don’t think anyone owns the cemetery. Because the cemetery was there many years before the church.”

This testimony alone established that the Church’s possession of the cemetery property was not peaceable. Other testimony echoed Brooks’s testimony by establishing that although the cemetery was located adjacent to the Church, the Church’s possession of the cemetery property was disputed. See Chestang v. Tensaw Land & Timber Co., 273 Ala. 8, 11, 134 So.2d 159, 161 (1961) (“ ‘The word “peaceable,” then, refers to the character of his possession. So long as his possession is so clear that no one is denying the fact of his actual or constructive possession, it is peaceable, although some other person may be denying his right to possession.’ ”). Because the Church did not establish peaceable possession of the property, the Church cannot recover in this quiet-title action.

If a trial court’s ruling is correct for any reason, this Court will affirm that ruling. See Davison v. Lowery, 526 So.2d 2 (Ala.1988); and City of Montgomery v. Couturier, 373 So.2d 625, 627 (Ala.1979)(holding that a judgment will be affirmed if it is proper on any legal basis, even if the reason given by the trial court for its judgment is a wrong reason). Here, the trial court held that the Church was not the owner of the cemetery — the correct result in light of the Church’s failure to establish peaceable possession; therefore, I would affirm the trial court’s judgment.

Moreover, even if I were to conclude that the Church was in peaceable possession of the cemetery property, my review of the evidence establishes that the Association did establish a claim to the cemetery property. The trial court heard ore tenus testimony from Brooks and other members of the community about the care and maintenance of the cemetery, the creation of the fund, the donations to the fund, the management of the fund, and the management of the cemetery. Ample evidence was presented to the trial court from which it could have concluded that the cemetery and the fund, established for its maintenance, were not part of the Church. “[Wjhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977). Credible evidence supports the trial court’s judgment; therefore, I would affirm that judgment.

HARWOOD and BOLIN, JJ., concur.

      . The exact date on which the transfer of office occurred is unclear. However, the parties indicate that Brooks served as the Church clerk for about 20 years until her resignation in April 2001.

      . Section 11-17-1, Ala.Code 1975, provides:
      “Five or more citizens may petition the judge of probate of any county in which any burial place, graveyard or cemetery is located, requesting him to appoint a commission to locate, mark the boundaries, plat and survey such burial place or to enlarge the area of any burial place, mark the boundaries thereof, plat and survey the part enlarged.”

      . Section 6-6-540, Ala.Code 1975, entitled "Right of action to settle title to lands by person in peaceable possession thereof,” provides:
      "When any person is in peaceable possession of lands, whether actual or constructive, claiming to own the same, in his own right or as personal representative or guardian, and his title thereto, or any part thereof, is denied or disputed or any other person claims or is reputed to own the same, any part thereof, or any interest therein or to hold any lien or encumbrance thereon and no action is pending to enforce or test the validity of such title, claim, or encumbrance, such person or his personal representative or guardian, so in possession, may commence an action to settle the title to such lands and to clear up all doubts or disputes concerning the same.”

      .The trial court’s order states:
      "Transferring cases from the Probate Court to Circuit Court are [§] 43-8-198 (Will Contest), [§] 12-11-41 (Removal of Administration of Estate by Circuit Court from Probate Court), [§] 12-11-10 (Involuntary Juvenile Commitment Proceedings), and [§] 12-22-20, et. seq. (Appeals from Probate Court to Circuit Court). There are no provisions for the transfer of a case filed pursuant to [§] 11-17-1, Code of Alabama 1975. There are no provisions giving the Circuit Court jurisdiction over such a case that is reserved to the Probate Court.”

      . In Watson v. Taylor, 293 Ala. 386, 391-92, 304 So.2d 181, 185 (1974), this Court articulated the burden-shifting analysis but distinguished between constructive and actual peaceable possession:
      "The primary issue in a statutory action to quiet title in personam is the title or interest of the [defendant]. When it is shown that [the plaintiff] is in actual peaceable possession (as opposed to peaceable constructive possession) at the time of filing the complaint and that no other suit is pending, title and ownership in the [plaintiff] are presumed and the burden is on the [defendant] to establish a valid claim to the lands. Only if the [defendant] then establishes a valid claim does the [plaintiff] have the burden of proving what title he has and that it is superior.”

        Watson’s distinction between actual and constructive possession appears to be a misstatement. Two of the cases it cites in support of that distinction, Kendrick v. Colyar, 143 Ala. 597, 42 So. 110 (1904), and City Loan & Banking Co. v. Poole, 149 Ala. 164, 43 So. 13 (1907), do not mention either actual or constructive peaceable possession. The third case it cites, Wiggins v. Stapleton Baptist Church, supra, states that it is sufficient for the plaintiff to show "peaceable possession of the land, either actual or constructive.” 282 Ala. at 257, 210 So.2d at 816. Therefore, neither Kendrick, City Loan, nor Wiggins provides authority for the Watson Court's articulation of a distinction between actual and constructive peaceable possession. Moreover, § 6-6-540, Ala.Code 1975, provides that "any person ... in peaceable possession of lands, whether actual or constructive,” can bring an action to quiet title.

      . In its order, the trial court stated the following with regard to the applicable law:
      "In a quiet title action the appropriate test is to determine which among the parties claiming right of title and possession hold superior title. Gardner v. Key, 594 So.2d 43 (Ala.1992). A quiet title action determines rights and interests in land as between Plaintiff and Defendant. Holcomb v. Morris, 457 So.2d 973 (Ala.[Civ.App.]1984). Complainants seeking to quiet title must have the quiet and peaceful possession, actual or constructive, of the land claimed as distinguished from a scrambling or disputed possession. Ford v. Washington, 259 So.2d 226 (Ala.1972).”
      The trial court's recitation of the applicable caselaw, however, is incomplete; it does not articulate the complete burden-shifting analysis. The holding in Gardner v. Key, 594 So.2d 43 (Ala.1992), does not apply to this case for two reasons. First, Gardner involves a summary judgment in a quiet-title action. Second, the plaintiff in Gardner held a valid deed to the disputed property. The trial court in Gardner entered a summary judgment for the plaintiff after he presented, in support of his summary-judgment motion, certified copies of deeds to the disputed property showing that he and his predecessors in interest had held legal title to the property for over 65 years. 594 So.2d at 44. The trial court’s review of the chain of title in Gardner also showed that the party who allegedly conveyed the disputed property to the defendant had lost all of his legal interest in the property 30 years before the conveyance and, thus, the defendant's deed was invalid and the defendant had no legal claim to the property. The defendant in Gardner lost because the defendant did not produce substantial evidence creating a genuine issue of material fact.

      . One has constructive possession of property when one has a legal estate in fee. Denson v. Gibson, 392 So.2d 523, 524-25 (Ala.1980); Hinds v. Slack, 293 Ala. 25, 299 So.2d 717 (1974); and George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202 (1908). Actual possession generally refers to the physical occupation of the land. Hinds v. Slack, 293 Ala. at 28, 299 So.2d at 719. The Church alleged in its complaint that it was in actual peaceable possession of the cemetery property. The Church argues in its brief to this Court that it should be found to be in constructive peaceable possession of the cemetery property by virtue of an 1859 deed conveying the property to the Church. The trial court found that none of the deeds relevant to the instant controversy, that is, those conveying property to the Church in 1859, 1975, 1978, 1996, and 2000, describe the tract of land encompassing the cemetery property; however, we pretermit discussion of whether the Church had constructive possession of the property.
      Moreover, whether the Church was in actual or constructive peaceable possession does not impact our analysis; under Wiggins, 282 Ala. at 257, 210 So.2d at 816-17, a showing of peaceable possession, either actual or constructive, entitles the plaintiff to the presumption of relief and shifts the burden to the defendant to show legal title.

      . For example, this Court has held that the "drilling of core holes, marking the boundary with paint, the building and traversing of roads, checking for forest infestation, posting of mining permit signs, and monthly inspections to prevent trespassing” was conduct sufficient to support peaceable possession. Cullman Wholesale, 592 So.2d at 1034. This Court has also held that the assessment of the property to the plaintiff and the plaintiff’s use of lumber from an abandoned, storm-damaged church building coupled with cutting timber from the land, including large-scale operations and plantings, were factors demonstrating that the plaintiff was in peaceable possession of the land at issue. Mt. Gilead Church Cemetery v. Woodham, 453 So.2d 362 (Ala.1984).
      In contrast, this Court has held that a plaintiff’s possession was scrambling where a defendant claimed a right to possession of a 2-acre tract of land, brought such a claim to the knowledge of the plaintiffs before the plaintiffs pursued the quiet-title action, used a church building on the 2-acre lot for many years as a place of worship, and used a cemetery on the lot for burials for at least 70 years. Price v. Robinson, 242 Ala. 626, 7 So.2d 568 (1942). The facts in Price are distinguishable from the facts in this case because the defendants in Price occupied the disputed property for at least 70 years before the action to quiet title. In contrast, the Association had been in existence for only one year when the Church brought this action to quiet title in April 2002, and the only action the Association took with respect to establishing possession was cleaning the cemetery grounds in the fall of 2001.

      . The dissent quotes Brooks's testimony during direct examination by the Church's counsel in which she states: “I don’t think anyone owns the cemetery.” This statement alone does not establish that the Church's possession of the cemetery was not peaceable. Brooks's statement is that neither the Church nor the Association owns the cemetery property. She does not claim actual possession of the cemetery property on behalf of the Association and does not render the Church’s possession scrambling. See Cullman Wholesale, 592 So.2d at 1034. Moreover, to the extent her statement is a denial of anything, it is a denial of the Church's right to possession, not a denial of the Church’s possession so as to render its possession scrambling. See Denson, 392 So.2d at 524-25.

      . "Legal tide” is defined as "[a] title that evidences apparent ownership but does not necessarily signify full and complete title or a beneficial interest.” Black’s Law Dictionary 1523 (8th ed.2004).

      . Legal title can also be shown through a mortgage. Baxter v. SouthTrust Bank of Dothan, 584 So.2d 801, 804 (Ala.1991) ("A mortgage will pass legal title to the mortgagee, leaving the mortgagor with an equity of redemption, and the priority of persons claiming an interest in the same property will be determined by the order in which they filed for record.”). However, in the context of this case, a deed is the more pertinent method of establishing legal title.

      . The Association’s reliance on Johnson and Shepherd as support for its argument that its claim to ownership of the cemetery property is superior is misplaced. Both cases involved a conveyance of property by deed to an unincorporated association. The issue in Johnson was whether a church that was an unincorporated association when it received a warranty deed purporting to convey title to a certain parcel of land acquired legal title to the parcel of land upon its incorporation. 270 Ala. at 265, 116 So.2d at 903. In Shepherd, the owner of the real estate on which a cemetery was to be built conveyed the land to three individuals specifically “as trustees for use as a public burial ground.” 649 So.2d at 1266. After the death of the original trustees, three individuals undertook to maintain the cemetery, serving as its de facto trustees until a corporation was formed that succeeded to the interest in the cemetery. 649 So.2d at 1267-68. In both Johnson and Shepherd., the unincorporated association that preceded the incorporated association received a conveyance of the contested real property in the form of a deed. In contrast, in this case, even if we were to assume that Moseley did form an unincorporated association, no person or entity ever conveyed the cemetery property to that unincorporated association. Therefore, Johnson and Shepherd do not apply. The Association's argument that it is the successor in interest to the unincorporated association established by Moseley, which allegedly owned the cemetery property, is not supported by the facts or the cited authority. The Association did not establish a valid claim to the cemetery property and definitely did not produce legal title sufficient to defeat the presumption of the Church’s peaceable possession.

      . It may be that the Association is better able and more highly motivated than is the Church to care for the cemetery; however, we cannot base our decision on that ground. To do so would be effectively to annul our fundamental right of property, declaring property to belong to him who can convince a court that his use and care are preferable to those of the present owner. The absolute right to property "consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” 2 William Blackstone, Commentaries, 138. The right to property is a fundamental right on which our other rights are based, for, as Blackstone explained, "in vain would [our absolute rights] be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has, therefore, established certain other auxiliary subordinate rights of the subject, which serve primarily as outworks or barriers, to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and private property.” 2 William Blackstone, Commentaries, 140-41.

      . Additional evidence included evidence that members of the community who were not members of the Church were buried in the cemetery, that members of the community with no affiliation to the Church participated in the cleanup days to maintain the cemetery, and that the Church did not participate in decisions concerning the cemetery.

      . Evidence supporting the trial court's conclusion include the fact that for over 30 years the administrator of the fund did not have authority to and never executed checks on behalf of the Church, that all decisions made regarding the cemetery were made without the Church’s approval, and that the Church minutes never reflected a discussion of the cemetery or the fund.