author: CARLTON, J.,

text:
    Claudia B. ALLGOOD, Appellant v. Deforrest R. ALLGOOD, Appellee.
    No. 2009-CA-00858-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.
    Rehearing Denied May 31, 2011.

      Stephen Travis Bailey, Tupelo, attorney for appellant.
    Jackson M. Brown, Starkville, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Claudia Allgood appeals the judgment of the Chancery Court of Lowndes County, which granted her an irreconcilable-differences divorce from her husband, Deforrest Allgood (Forrest). Aggrieved with the chancellor’s property division and also his decision to deny her request for alimony, Claudia appeals.

FACTS

¶ 2. Claudia and Forrest married on June 17, 1978. During the course of the marriage, the couple had three children together. The couple’s two older children both reached the age of majority prior to the time of the divorce. The youngest child, Keller, was age sixteen at the time of the divorce, and she lived with her mother.

¶ 3. At the time of their marriage, Claudia worked as an elementary-school teacher, and Forrest worked as an assistant district attorney. With financial support from her parents, Claudia earned her master’s degree in education in 1988. Forrest attended to the couple’s two children while Claudia took classes at night. Shortly after earning her master’s degree, Claudia left with the children and moved to Arkansas to reside closer to her mother. In Arkansas, Claudia filed for divorce from Forrest.

¶ 4. Claudia and Forrest ended their divorce proceedings, and the couple reconciled in May 1989. In early 1990, Claudia admitted to engaging in an extramarital affair, but the couple nonetheless reconciled in 1992 despite her revelation. Claudia gave birth to the couple’s third child in 1992. However, the reconciliation failed to resolve the marital discord. According to Forrest, he slept on a cot in his daughter’s room rather than sleeping in the marital bedroom with Claudia.

¶ 5. The couple’s marriage deteriorated further over time. Claudia and Forrest separated again in February 2007. The couple agreed to an irreconcilable-differences divorce, leaving contested issues for the chancery court to resolve, including the issues of property division and alimony. After a one-day trial on October 3, 2009, the chancery court identified the separate and marital property of the parties and distributed the couple’s marital assets. Finding the property division sufficient, the chancellor denied Claudia alimony finding none warranted. Rather than file post-trial motions to allow the chancellor to address any perceived errors, Claudia noticed the present appeal twenty-eight days after the chancellor entered his judgment in this case.

¶ 6. On appeal, Claudia raises the following two assignments of error for our review: (1) whether the chancery court erred in its identification, classification, and equitable division of the parties’ property; and (2) whether the chancery court erred in failing to award alimony to Claudia.

STANDARD OF REVIEW

¶ 7. “This Court’s standard of review regarding domestic relations matters is a limited one. We will not disturb the findings of a chancellor ‘unless manifestly wrong, clearly erroneous, or if the chancellor applied the wrong legal standard.’ ” McKnight v. McKnight, 951 So.2d 594, 595-96 (¶5) (Miss.Ct.App.2007) (internal citations omitted). However, we review questions of law de novo. Oswalt v. Oswalt, 981 So.2d 993, 995 (¶ 5) (Miss.Ct.App. 2007).

DISCUSSION

I. Whether the chancellor erred in his identification, classification, and equitable distribution of the parties ’ property.

¶ 8. In her first assignment of error, Claudia contends that the chancellor committed reversible error in his division and classification of certain marital and separate property. Specifically, Claudia argues that the chancellor erred in classifying a portion of the equity in the couple’s marital home as separate property belonging to Forrest. Further, Claudia asserts that the chancellor committed reversible error in failing to classify or divide money held in a campaign account in Forrest’s name. Claudia argues that the chancellor’s property classification and division resulted in Forrest receiving sixty-five percent of the marital assets, while Claudia received only thirty-five percent.

¶ 9. Case law governs how chancellors approach property division in divorce cases. Before dividing the couple’s assets, the chancellor should first classify the couple’s assets as either marital or non-marital. Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶ 19) (Miss.2002). With respect to the classification of marital property, the Mississippi Supreme Court held in Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994) that “[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Thus, the chancellor subjects only the marital property of the parties to equitable division. Messer v. Messer, 850 So.2d 161, 167 (¶ 24) (Miss.Ct.App.2003) (citing Hemsley, 639 So.2d at 914).

¶ 10. After classifying the parties’ assets as either marital or non-marital, the chancellor should then proceed with the equitable division of the property using the factors set forth by the supreme court in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). The record herein reflects that the chancellor complied with precedent in classifying the parties’ assets prior to the equitable division of the property and also that he used the Ferguson factors in his equitable division of the assets. Messer, 850 So.2d at 167-68 (¶ 25). Finally, the chancellor should examine whether the equitable division of the marital property, considered in light of the non-marital assets, adequately provides for both parties. Id. at 168 (¶ 26). If the distribution of the parties’ assets, including any separate property, fails to adequately provide for the parties, then the chancellor should consider whether to award alimony to one of the parties. Id. The record shows that the chancellor considered whether the distribution of assets failed to provide adequately for Claudia, but he found no need for alimony existed.

¶ 11. On appeal, Claudia asserts that the chancellor erred in the classification and division of the marital home. She argues that the chancellor erred in classifying and dividing a portion of the marital home as separate property. She also asserts that the chancellor erred in finding that a campaign account was Forrest’s separate property. To address Claudia’s argument as to whether the chancellor erred in his division of the marital home, we must examine the family-use doctrine. We must also acknowledge that in his classification of the assets of the parties, the chancellor classified the marital home as marital property.

¶ 12. Mississippi courts recognize a general presumption that property acquired during a marriage constitutes marital property. Hemsley, 639 So.2d at 914 (adopting a presumption of marital property). However, Hemsley defined marital property as assets acquired or accumulated during the course of a marriage other than assets attributable to a spouse’s separate estate either prior to the marriage or outside the marriage. Id. at 915. Ferguson clarifies that gifts and inheritances received during marriage constitute the separate property of a spouse. Ferguson, 639 So.2d at 928.

¶ 13. Because assets owned by a spouse are presumed to be marital property, the party seeking to classify property as separate, or non-marital, bears the burden of tracing the asset to a separate-property source. See Deborah H. Bell, Bell on Mississippi Family Law § 6.05[2] (2005). An inheritance or gift made to one spouse during the marriage remains the separate property of that spouse. Ferguson, 639 So.2d at 928. Spouses may convert separate property to marital property through actions of the owning spouse. See Bell, § 6.04. Spouses possessing separate ownership convert the property into marital property through the following actions: conversion by implied gift, family use, or commingling. See Yancey v. Yancey, 752 So.2d 1006, 1011 (¶ 20) (Miss.1999). Our supreme court allows a spouse asserting a separate ownership interest to maintain that separate interest in some cases by tracing the commingled separate funds, but the supreme court has generally refrained from allowing separate ownership to be established in this fashion as to certain assets such as the family home, where the family-use doctrine would apply. However, the case law in this area has not always been consistent.

¶ 14. Turning to precedent to guide us, we find the case of Singley v. Singley, 846 So.2d 1004, 1011-12 (¶¶ 19-21) (Miss.2002) presented a similar situation wherein the supreme court found that a husband had commingled his $70,000 inheritance when he spent the money on a down payment for the home, and the court remanded for the chancellor to reconsider this amount in applying the Fer guson factors in equitable distribution. A chancellor possesses the discretion to adjust equitably the Ferguson distribution in recognition of a separate contribution of a spouse. Both the evidence in the record and the decision of the chancellor in theinstant case reflect such consideration of the significant separate contribution by Forrest to the marital home and estate. Cf. Gutierrez v. Bucci, 827 So.2d 27, 39 (¶ 65) (Miss.2002) (finding no error in chancery court’s award of $5,000 equity in property to husband in light of wife’s dissipation of assets).

¶ 15. The record shows that the parties agreed that Forrest’s inheritance from his mother’s estate constituted Forrest’s separate property. In 2003, Forrest deposited $92,000 into a joint savings account he held with Claudia. In January 2005, Forrest withdrew $60,000 from that account to make a lump-sum payment on the mortgage on the family home. According to Forrest, all of the funds used in the early payoff of the mortgage originated from his separate inherited funds, despite their being placed in a joint savings account. In Boutwell, 829 So.2d at 1221(¶ 20) (citing Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995)), the supreme court held that assets classified as non-marital, such as an inheritance, may be converted to marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary. The supreme court defined commingled property as a “combination of marital and non-marital property in which the non-marital property has lost its status as non-marital property by virtue of its being combined with the marital property.” Id. (citing Maslowski v. Maslowski, 655 So.2d 18, 20 (Miss.1995)).

¶ 16. In this case, Forrest spent his separate money derived from inheritance for a family purpose of an early payoff of the family mortgage during the course of the marriage, and the record reflects no evidence of any reimbursement agreement or evidence of a loan of his separate money so spent. More specifically, the record reflects that Forrest deposited $60,000 of inherited funds into a jointly titled savings account and then transferred the funds into his personal checking account to prepay part of the balance owed on the mortgage on the family home. An additional $22,000 from the sale of Forrest’s parents’ house went directly to Forrest’s individual checking account. He also applied those funds to the mortgage, and he fully satisfied the balance of the mortgage loan. The Allgood family continued living in the home after satisfying the debt of the mortgage. Based upon these facts, the chancellor found no dispute existed that Forrest had used his inherited funds to satisfy the mortgage on the home.

¶ 17. The chancellor properly classified the family home as marital property in his initial classification of property, and the chancellor then properly exercised his discretion in considering Forrest’s significant contribution to the marital estate from his separate funds. In explaining his equitable division of the marital property, the chancellor explained that he considered Forrest’s significant contribution from his separate property made to satisfy the mortgage debt on the family home, and the chancellor further explained that the equitable division of the parties’ property by the court credited Forrest for that significant separate contribution. We, therefore, find no abuse of discretion in the chancellor’s award to Forrest of a larger share of the marital estate in recognition of his significant contribution from his separate property. Claudia’s assertion that the chancellor improperly classified the martial home as partially separate property is without merit. The evidence in the record supports the chancellor’s equitable division of the property, and a reading of the chancellor’s opinion as a whole shows the chancellor properly classified the family home as marital property. See Sanderson v. Sanderson, 824 So.2d 628, 625-26 (¶ 8) (Miss.2002).

¶ 18. We acknowledge that “[e]q-uitable distribution does not mean equal distribution.” Seymour v. Seymour, 960 So.2d 513, 519 (¶ 15) (Miss.Ct.App.2006) (quoting Lauro v. Lauro, 924 So.2d 584, 590 (¶ 23) (Miss.Ct.App.2006)). No requirement exists dictating that Claudia receive half, or fifty-percent, of the equity in the marital home. As we noted in Seymour, the goal of equitable division is “a fair division of marital property based on the facts of each case.... ” Seymour, 960 So.2d at 519 (¶ 15) (citing Ferguson, 639 So.2d at 929). The chancellor appropriately exercised his discretion in considering Forrest’s significant separate contribution in awarding him a larger share of the marital property. This Court can find no abuse of discretion in allowing Forrest credit for the inherited funds used to pay off the mortgage.

¶ 19. Claudia also asserts that a campaign account constituted marital property and should have been divided. However, she failed to provide supporting authority for this argument or factual support. We note that arguments advanced on appeal must “contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6); Birrages v. Ill. Cent R.R., 950 So.2d 188, 194 (¶ 14) (Miss.Ct.App.2006) (“Failure to comply with [Mississippi Rule of Appellate Procedure] 28(a)(6) renders an argument procedurally barred.”). The record shows that the account in question belonged to Forrest’s political campaign and then belonged to Forrest as he is reflected as the owner of the account bearing his name. Forrest testified that the campaign fund included $8,702.27. Forrest further testified that all of the money in the campaign fund was donated to him during various elections and put into a certificate of deposit. Forrest testified that if any money was not used on the campaign, it was put into a certificate of deposit and would remain there until the next campaign. Forrest testified that none of the money donated to him for campaign purposes has ever been used for anything but his campaigns for office and that Claudia did not help raise this money. Therefore, we find that the record does not reflect any evidence that the funds were used for marital or family purpose, and the campaign funds were not calculated as a part of the division of property.

II. Whether the chancellor erred in not awarding alimony to Claudia.

¶ 20. The Mississippi Supreme Court in Gray v. Gray, 562 So.2d 79, 83 (Miss.1990) held:

Alimony, if allowed, should be reasonable in amount commensurate with the wife’s accustomed standard of living, minus, her own resources, and considering the ability of the husband to pay. As long as the chancellor follows this general standard, the amount of the award is largely within his discretion.

¶ 21. Since the decision to grant alimony is left to the discretion of the chancellor, this Court will not reverse unless the chancellor manifestly erred and abused his discretion. Voda, v. Voda, 731 So.2d 1152, 1154 (¶ 7) (Miss.1999). In order to obtain a reversal for failure to award alimony, the chancellor’s decision must be seen as “so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 22. In this case, the chancellor found that the award to Claudia, resulting from the equitable division of property, requiring Forrest to pay her $144,875, coupled with her current employment, constituted sufficient means for Claudia.

¶23. Regarding appellate review of a chancellor’s decision whether or not to award alimony, the supreme court provided the following:

Our scope of review of an alimony award is well-settled. Alimony awards are within the discretion of the chancellor, and his discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion. The ruling of the chancellor will not be disturbed if the findings of fact are supported by credible evidence in the record.

Mabus v. Mabus, 890 So.2d 806, 822 (¶ 65) (Miss.2003) (internal quotations and citations omitted). After finding that the equitable division of property and Claudia’s employment at the time of divorce constituted sufficient means, the chancellor found alimony unwarranted. The evidence in the record provides substantial support for the decision of the chancellor. See Sanderson, 824 So.2d at 625-26 (¶ 8). We, therefore, affirm the chancellor’s judgment.

¶ 24. THE JUDGMENT OF THE LOWNDES 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 MAXWELL, JJ„ CONCUR.

      . The Honorable Edward C. Fenwick was appointed by the Mississippi Supreme Court to serve as special chancellor in this case.

      . The Ferguson factors include the following: “(1) substantial contributions to the accumulation of the property, including economic and domestic contributions by each party to the marriage, (2) expenditures and disposal of the marital assets by each party, (3) the market value and emotional value of the marital assets, (4) the value of the non[-]maritaI property, (5) tax, economic, contractual, and legal consequences of the distribution, (6) elimination of alimony and other future frictional contact between the parties, (7) the income and earning capacity of each party, and (8) any other relevant factor that should be considered in making an equitable distribution.” Selman v. Selman, 722 So.2d 547, 552 (¶ 16) (Miss.1998) (citing Ferguson, 639 So.2d at 928).

      . Professor Bell explains that conversion by implied gift occurs when an owner’s actions show an intention to give an asset to the marital estate. Bell, § 6.04. Professor Bell further provides that courts look at several factors in ascertaining intent, including statements by the owner, family use of the asset, and the manner of title ownership and existence. She further noted precedent wherein the Mississippi Supreme Court held that the joint title presumption no longer applies in Mississippi equitable distribution. Bell, § 6.04[2] (citing Pearson v. Pearson, 761 So.2d 157, 163 (Miss.2000)).

      . This opinion does not address any campaign finance implications or taxation consequences resulting from personal use of campaign funds or implications of use of such funds for purposes other than purposes for which the campaign fund was established. This opinion addresses only whether these funds, in light of the evidence in this case, should be classified as marital or separate property.


source: Caselaw Access Project

author: CARLTON, J., IRVING, J.,

license: Public Domain

text:
    Luttreal D. ALLEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00027-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.
    Rehearing Denied May 31, 2011.

      Luttreal D. Allen, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Scott Stuart, Jackson, attorneys for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Luttreal Allen appeals the denial of his request for post-conviction relief by the Washington County Circuit Court. On May 23, 2005, the circuit court sentenced Allen to three-years of post-release supervision for possession of marijuana with intent to distribute. In April 2008, the circuit court extended that post-release supervision, which was previously imposed in May 2005, by an additional year because Allen had failed to comply with the eondi-tions of that supervision. If Allen would have complied with the post-release-supervision conditions, the extended post-release-supervision period would have expired on May 23, 2009.

¶2. However, on July 1, 2008, law enforcement arrested Allen for possession of cocaine. On June 8, 2009, the circuit court held that Allen had violated the conditions of his post-release supervision, which had been imposed in May 2005, because of his cocaine arrest and his failure to report and pay fees. The circuit court then revoked the 2005 post-release supervision and ordered Allen to serve three years in the custody of the Mississippi Department of Corrections (MDOC). Allen filed a motion to vacate the revocation order, which the circuit court denied.

¶ 3. Upon review of the circuit court’s denial of Allen’s motion for post-conviction relief, we acknowledge that Mississippi Code Annotated section 47-7-34 (Rev. 2004) prohibits an individual from receiving a sentence of post-release supervision that exceeds the maximum penalty allowed for the crime. Thus, we find the circuit court lacked jurisdiction to extend Allen’s term of post-release supervision beyond the three-year maximum authorized by statute for his offense. Accordingly, the circuit court lacked the authority to revoke Allen’s sentence of post-release supervision during the fourth unauthorized year of post-release supervision. Therefore, we reverse the revocation of Allen’s post-release supervision, and we set forth below a more detailed recitation of the facts and analysis addressing the issues in this case.

FACTS

¶ 4. On May 23, 2005, Allen entered a guilty plea to one count of “possession of marijuana with intent less than 1 oz.” in the Washington County Circuit Court. Allen received a three-year sentence, with all three years suspended with three years to serve on post-release supervision. Section 41 — 29—139(b)(8) authorizes a maximum sentence of three years for possession of less than 30 grams of marijuana with intent to sell. On April 22, 2008, the circuit court extended Allen’s three-year post-release-supervision period for one year, until May 23, 2009, due to Allen’s failure to comply with the conditions of his supervision. Specifically, the circuit court cited Allen’s failure to pay court-ordered assessments and supervision fees as the reasons for the extension of post-release supervision.

¶ 5. The record reflects that on July 1, 2008, during his fourth year of post-release supervision, Allen was arrested for possession of cocaine, a new offense, and he pled guilty to the new offense on June 3, 2009. For the new offense, Allen received a four-year sentence, with two years suspended. With respect to his post-release supervision for his earlier offense in May 2005, the circuit court issued a warrant in February 2009 for Allen’s arrest for failing to obey laws, based on his arrest for cocaine possession; absconding the supervision of the MDOC; failing to pay supervision fees; and failing to pay court-ordered fees and assessments. According to the order revoking Allen’s post-release supervision, Allen failed to report to MDOC officials for more than one-hundred-and-twenty days, and he failed to provide the MDOC with his current address.

¶ 6. On June 8, 2009, after a revocation hearing pertaining to the post-release supervision imposed in May 2005, the circuit court found that Allen had violated the post-release supervision initially imposed in May 2005, which the circuit court had previously extended for a fourth year with an expiration date of November 2009. The circuit court then revoked the post-release supervision, ordering Allen to serve a term of three years in the custody of the MDOC, with the term to run consecutively to Allen’s sentence for possession of cocaine. On November 17, 2009, Allen filed a motion to vacate the revocation order, which the circuit court subsequently denied. Allen now appeals, arguing that the circuit court improperly extended his post-release supervision. Allen also asserts that he completed his sentence of post-release supervision prior to his arrest for possession of cocaine; therefore, the circuit court lacked jurisdiction to revoke the completed supervision sentence.

STANDARD OF REVIEW

¶ 7. This Court applies an abuse-of-discretion standard of review for the denial of post-conviction relief. Brown v. State, 872 So.2d 96, 98 (¶ 8) (Miss.Ct.App.2004). In addition, we note that “[t]he findings of the trial court must be clearly erroneous in order to overturn a lower court’s denial of a post-conviction relief motion.” Id. at 98-99 (¶ 8).

DISCUSSION

¶8. Allen argues that the circuit court revoked his post-release supervision after the expiration of his three-year term for his post-release-supervision sentence. He also argues that the circuit court lacked the statutory authority to modify or alter the terms of his post-release supervision. Allen claims that the statutory authority granted for post-release supervision differs from that granted for imposing probation on a felon and that the circuit court applied the wrong statutory guidance when extending his post-release supervision.

¶ 9. Under Mississippi Code Annotated section 47-7-34, the circuit court may not impose a sentence of post-release supervision for a term greater than the maximum sentence allowed for the crime. Allen pled guilty to possession of less than thirty grams of marijuana with intent to distribute, in violation of Mississippi Code Annotated section 41 — 29—139(b) (3). Possession of marijuana under section 41 — 29—139(b)(3) carries a maximum sentence of three years’ imprisonment and a maximum fíne of $3,000. The circuit court, therefore, lacked the authority to extend Allen’s post-release supervision for an additional fourth year because the additional year caused Allen’s sentence to exceed the maximum three-year sentence allowed by law. Johnson v. State, 925 So.2d 86, 101 (¶ 27) (Miss.2006).

¶ 10. Because the circuit court lacked jurisdiction to extend Allen’s sentence of post-release supervision to a term beyond the maximum sentence authorized by law for the crime, Allen’s post-release supervision expired in May 2008, prior to the circuit court’s revocation of his suspended sentence in June 2009. Therefore, we find the circuit court lacked authority for the revocation of Allen’s post-release supervision, and the court erred in denying Allen’s motion for post-conviction relief. We reverse the denial of Allen’s motion for post-conviction relief and set aside the revocation of his post-release supervision. We note that this opinion applies to only Allen’s conviction and sentence imposed in May 2005 for possession of marijuana with intent to sell styled as Washington County Circuit Court cause number 2005-026, the revocation of which constitutes the heart of this review.

1Í11. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

IRVING, J.,

dissenting:

¶ 12. With respect, I must dissent from the majority opinion, which reverses and renders the Washington County Circuit Court’s judgment denying Luttreal D. Allen’s motion to vacate the order revoking his post-release supervision. In my judgment, the majority has misinterpreted the effect of Allen’s initial sentencing order, thereby leading to the erroneous finding that the circuit court was without jurisdiction to revoke Allen’s post-release supervision. For the reasons that I will explain below, I would affirm the order of the circuit court revoking Allen’s post-release supervision and sentencing him to serve three years in the custody of the Mississippi Department of Corrections.

¶ 13. On May 23, 2005, pursuant to a plea agreement between Allen and the State, Allen pleaded guilty to possession of less than one ounce of marijuana with intent to sell, transfer, or distribute. The circuit court sentenced Allen as follows:

for said crime of possession of Marihuana with [i]ntent [l]ess than 1 oz[,] the defendant Luttreal D. Allen, shall be sentenced to three (B) years [p]ost-[r]e-lease [supervision to be served as if on [supervised [probation under the direction of the Mississippi Department of Corrections Probation and Parole Office .... The Defendant shall comply with all conditions required by the laws of the State of Mississippi for [probation as well as the following....

¶ 14. It is noteworthy that the circuit court did not sentence Allen to a period of incarceration, which is a requirement for post-release supervision. Miss.Code Ann. § 47-7-34(1) (Rev.2004). In his petition to enter a plea of guilty, Allen stated that he had not been convicted of a prior felony in Mississippi and had not been on probation or parole. Therefore, Allen was eligible to receive a suspended sentence and be placed on probation, not post-release supervision. I would interpret the use of the phrase “post-release supervision” in the sentencing order as a scrivener’s error since Allen was not sentenced to a period of incarceration. It seems clear to me that the intent of the circuit court was to suspend Allen’s sentence of three years and place him on probation rather than post-release supervision.

¶ 15. In the order revoking Allen’s post-release supervision, the circuit court stated:

That by order dated May 23, 2005, said defendant was sentenced to serve a term of three (3) years in [the] custody of the Mississippi Department of Corrections, and the Court, pending the defendant’s good behaviorf,] placed the defendant on [p]ost-[r]elease [supervision for a period of three (3) years.

Again, it is clear from the passage quoted above from the revocation order that while the circuit court used the phrase “post-release supervision,” it really meant probation. A circuit court may sentence a defendant to a term of incarceration but suspend the execution of the sentence and place the defendant on probation, provided that the defendant meets certain requirements as set forth and contained in Mississippi Code Annotated section 47-7-33(1) (Rev.2004), which reads as follows:

When it appears to the satisfaction of any circuit court or county court in the State of Mississippi, having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in term time or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the Department of Corrections.

(Emphasis added).

¶ 16. As stated, according to Allen’s petition to enter a plea of guilty, he had not been convicted of a felony in this state. The record does not inform us whether he had been convicted of a felony in any other state. My assumption is that he had not, thereby making him eligible for a suspended sentence and probation. If he was eligible for probation during the initial sentencing, as it appears he was, then the circuit court certainly had the authority and jurisdiction to extend his probationary period for an additional year after he was found to have violated the terms of his initial probation for failing to pay court-ordered assessments and supervision fees. It necessarily follows that when he violated his probation during the fourth year, or during the extended year, of probation by being in possession of cocaine, the circuit court possessed the jurisdiction to revoke his probation and sentence him to the original three-year term of incarceration.

¶ 17. For the reasons presented, I dissent. I would affirm the judgment of the circuit court.

      . Allen pled guilty to possession of marijuana with intent to distribute under Mississippi Code Annotated section 41-29-139(b)(3) (Rev. 2009), which carries a maximum penalty of three years’ imprisonment or a maximum fine of $3,000, or both.

      . The order from the Washington County Circuit Court sentencing Allen to four years in the custody of the MDOC for possession of cocaine, with two years suspended, did not appear from the record. These facts are based on statements found in the parties’ briefs.

      . Allen's post-release supervision also expired before the warrant was issued for violating the terms of his May 2005 post-release-supervision sentence. The post-release supervision expired in May 2008.

      . This section reads as follows:
      When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a tenn of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court. (Emphasis added).

      . Mississippi Code Annotated section 47-7-37 (Supp.2010) provides: "The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. Such period with any extension thereof shall not exceed five (5) years....” (Emphasis added).


author: GRIFFIS, J.,

text:
    Mike JONES, Appellant v. E.P. LUTKEN, David Whitehead, Frank Stone and Perry Hutchinson, Appellees.
    No. 2009-SA-01823-COA.
    Court of Appeals of Mississippi.
    Feb. 22, 2011.
    Rehearing Denied May 31, 2011.

      John Preston Scanlon, Jerry L. Mills, Ridgeland, attorneys for appellant.
    John H. Cox, III, Greenville, attorney for appellees.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. This appeal reviews a circuit court’s reversal of a local authority’s zoning decision. The Washington County Board of Supervisors granted Mike Jones a permit for a permissible non-conforming use. A group of homeowners appealed to the Washington County Circuit Court, which reversed the Board of Supervisors’ decision and denied the permit. On appeal, Jones argues that: (1) the homeowners lacked standing to appeal, and (2) the circuit court erred when it found the Board of Supervisors’ decision arbitrary and capricious and unsupported by substantial evidence. Finding error, we reverse the circuit court’s judgment and reinstate the decision of the Board of Supervisors.

FACTS

¶ 2. In 2005, Jones leased property near Lake Washington, a large oxbow lake in Washington County. The lake is a popular vacation spot, and Jones catered to the vacationers. On the property, Jones operated an RV campground, ran a convenience store that sold fishing bait and refreshments, and maintained a few permanent cabins for rent.

¶ 3. In 2006, the Washington County Zoning Ordinance was enacted. Most of the land around Lake Washington, including Jones’s land, was zoned R-2 residential (single-family residential). Jones’s RV park, convenience store, and cabin-rental business were not in conformity with the new ordinance. However, the ordinance expressly provided for the continuation of non-conforming uses that existed at the time the ordinance was enacted. The ordinance, in pertinent part, reads:

It is the intent of this Ordinance to allow nonconformities to continue. It is further the intent of this Ordinance that nonconformities shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

Washington County Zoning Ordinance § 3001(3)(a). Jones continued operating his business as a permissible non-conforming use. However, the ordinance prohibited Jones from expanding the non-conforming use.

¶ 4. At some time thereafter, Jones began selling portable cabins. These cabins were small manufactured buildings that could be loaded on trucks and transported. He displayed the cabins for sale on his land near his convenience store. Jones sold several portable cabins. Most of the cabins sold were removed from his property. However, two of the cabins were placed on RV lots, which were on Jones’s property, at the request of the purchasers. The purchasers paid rent for the lots like an RV user.

¶ 5. The Washington County Planning Director informed Jones that he could not display the cabins for sale and that he could not keep the two cabins on the RV lots. The director maintained that Jones was in violation of the zoning ordinance. The director determined that Jones’s display of the cabins and his placement of the cabins on RV lots were impermissible expansions of his non-conforming use.

¶ 6. Jones then sought a permit from the Washington County Planning Commission. The Commission agreed with the director that the display of cabins for sale was an impermissible expansion. Thereafter, Jones ceased the display of cabins for sale. This decision was never challenged. However, the Commission disagreed with the director as to the two portable cabins placed on the RV lots. The Commission found that the placement of the portable cabins was a permissible continuation of Jones’s non-conforming use, not an expansion, and Jones was granted the permit to allow the portable cabins to remain.

¶ 7. A group of nearby homeowners appealed the Commission’s decision to the Board of Supervisors. The Board of Supervisors affirmed the Commission’s decision. The homeowners then filed a bill of exceptions and appealed the decision to the circuit court. The circuit court reversed the Board of Supervisors’ decision. Jones now appeals the circuit court’s decision.

STANDARD OF REVIEW

¶ 8. When the decision of a local zoning authority is appealed to the circuit court, the circuit court acts as an appellate court. Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986). This Court and the circuit court must apply the same standard of review. City of Biloxi v. Hilbert, 597 So.2d 1276, 1280 (Miss.1992). We can reverse the zoning authority’s decision only if that decision was “arbitrary, capricious, discriminatory, illegal, or [was] not supported by substantial evidence.” Id. Indeed, if the zoning authority’s decision appears “fairly debatable,” the decision must be affirmed. Id.

ANALYSIS

1. Whether the homeowners had standing to challenge the Board of Supervisors’ decision by filing a bill of exceptions in the circuit court.

¶ 9. Jones argues that the circuit court’s decision should be vacated because the court never had jurisdiction to hear the case. He claims that the homeowners lacked standing to challenge the Board of Supervisors’ decision. We disagree.

¶ 10. The Mississippi Supreme Court articulated the requirements for standing, stating:

Mississippi’s standing requirements are more relaxed than the stringent case or controversy requirements for standing in federal courts under Art. Ill, § 2 of the United States Constitution.... In Mississippi, parties have standing to sue when they assert a colorable interest in the subject matter of the litigation or experience an adverse [ejffect from the defendant’s conduct.

Miss. Manufactured Hous. Ass’n v. Bd. of Aldermen, 870 So.2d 1189, 1192 (¶8) (Miss.2009) (citation omitted).

¶ 11. The supreme court has held that a group of nearby homeowners had standing to challenge a zoning decision based on the homeowners’ proximity to the subject property and their allegations that their property values would be affected by the decision. Luter v. Oakhurst Assoc., Ltd., 529 So.2d 889, 892 (Miss.1988). In Luter, the question decided was whether the subject property would be zoned single-family-residential or multi-family-residential. Id. at 890-92 The property owners wanted the property to be zoned multi-family-resi-dential to accommodate their plans to build an apartment complex on the land. Id. The nearby homeowners wanted the property to be zoned single-family-residential. Id. One homeowner lived 211 feet away from the subject property, and the others lived in a subdivision 530 feet away. Id. at 892. The court concluded that their proximity, coupled with their allegations that the apartment complex would drive down their property values, was enough to confer standing on both. Id.

¶ 12. This case is similar. All four of the appealing homeowners own homes on Lake Washington. Two of them own homes on land immediately adjacent to Jones’s property. They allege that if Jones is allowed to continue placing portable cabins on his land, then their property values would be negatively impacted.

¶ 13. We find that the appealing homeowners have asserted a colorable interest in the subject matter of the litigation sufficient to confer standing. We find no merit to this issue.

2. Whether the circuit court erred in finding the Board of Supervisors’ decision arbitrary and capricious and unsupported by substantial evidence.

¶ 14. The circuit court ruled that the Board of Supervisors’ decision was arbitrary and capricious and unsupported by substantial evidence. The circuit court found that the placement of the portable cabins on RV lots was an expansion of Jones’s non-conforming use. Thus, the court concluded that the Board of Supervisors’ decision to grant Jones the permit was contrary to the express language of the ordinance, which prohibits expansion of non-conforming uses.

¶ 15. The question facing the Board of Supervisors was whether placing the portable cabins on the RV lots was an expansion of Jones’s non-conforming use or whether it was a permissible continuation of the non-conforming use. If it was an expansion, then the ordinance prohibited it. If it was a continuation, then the ordinance allowed it.

¶ 16. To answer this question, the nature of Jones’s non-conforming use must be defined. Jones had an RV park, a convenience store, and a few permanent cabins available for rent on the land. The homeowners contend that Jones had an RV park, and nothing else, and that these portable cabins are not RVs; thus, their placement cannot be a continuation of the permissible non-conforming use. Jones argues that his non-conforming use should be construed as a commercial operation, rather than merely an RV park. If the non-conforming use is broadly defined as a commercial operation, then he claims it is easier to see how placing the portable cabins could be viewed as a continuation and not an expansion.

¶ 17. Even if the permissible non-conforming use is narrowly defined as an RV park and nothing else, there is a second difficult question — whether these portable cabins qualify as RVs under the ordinance. The ordinance defines RVs as “portable or mobile living unit[s] for temporary human occupancy away from the place of residence of the occupants.” Washington County Zoning Ordinance § 203. This definition appears to be broad enough to include the portable cabins at issue. If the cabins are RVs within the meaning of the ordinance, then their placement on RV lots would not be an expansion of Jones’s non-conforming use.

¶ 18. The Board of Supervisors was faced with these questions and had to interpret the zoning-ordinance language. The words “expansion” and “continuation” were not clearly defined, precise terms in the zoning ordinance. These words must be interpreted and applied within the context of a given factual scenario. It is the role of the Board of Supervisors to make these judgments, subject to limited appellate review.

¶ 19. “[I]n construing a zoning ordinance, unless manifestly unreasonable, great weight should be given to the construction placed upon the words by the local authorities.” Hall v. City of Ridgeland, 37 So.3d 25, 40 (¶ 50) (Miss.2010) (quoting Columbus & Greenville Ry. Co. v. Scales, 578 So.2d 275, 279 (Miss.1991)). As stated previously, where the question is “fairly debatable,” the decision of the Board of Supervisors must be affirmed. Saunders v. City of Jackson, 511 So.2d 902, 906 (Miss.1987). Here, it is our opinion that the interpretation of the zoning-ordinance definition of RV could include the portable cabins. Accordingly, we find that the Board of Supervisors’ decision was “fairly debatable” and that this interpretation was not manifestly unreasonable.

¶ 20. For these reasons, we find the circuit court committed error when it reversed the decision of the Board of Supervisors. Accordingly, we reverse the circuit court’s judgment and reinstate the decision of the Board of Supervisors.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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

      . The homeowners point out that the next sentence in the ordinance states: "For the purpose of this Ordinance, such RV shall be considered a VEHICLE AND NOT A STRUCTURE.” Washington County Zoning Ordinance § 203. The homeowners then argue that the portable cabins are structures, not vehicles; therefore, they cannot be RVs within the meaning of the ordinance. We do not agree with that reading of the ordinance. The first sentence defines RVs. The second sentence then states that, going forward, whenever the ordinance refers to a "structure” it is not referring to an RV, and whenever it refers to a "vehicle” it is referring to an RV in addition to whatever else qualifies as a "vehicle” under the ordinance. The second sentence does not modify the definition of an RV.


text:
    In the Matter of the GUARDIANSHIP OF Ruby BUCKALEW: James Buckalew, Appellant/Cross-Appellee v. Diane BUCCLUCH, Appellee/Cross-Appellant.
    No. 2009-CA-01976-COA.
    Court of Appeals of Mississippi.
    Feb. 22, 2011.
    Rehearing Denied May 31, 2011.

      Joe Clay Hamilton, Meridian, attorney for appellant.
    Elizabeth Rhae Randall Darsey, Robert D. Jones, Meridian, attorneys for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. James Buckalew appeals the judgment of the Chancery Court of Lauderdale County, arguing that the chancellor erred in determining the amount of sanctions to award upon the finding that Diane Buc-cluch’s counterclaim against James was a frivolous pleading. James seeks an increased amount of sanctions against Diane to compensate him for defending against her frivolous counterclaim. James also argues that the answers and defenses pleaded by Diane were without any supporting evidence and, thus, also frivolous and sanc-tionable.

¶ 2. Following James’s appeal, Diane filed a cross-appeal, arguing that the chancellor abused his discretion in finding that Diane had no hope of succeeding on her counterclaim and also in finding that the counterclaim constituted a frivolous pleading. Diane specifically asserts that the chancellor erred in imposing sanctions as a result of finding that her counterclaim was a frivolous pleading. Diane further submits that the chancellor did not abuse his discretion in determining that Diane indeed possessed some hope of succeeding in her defense of James’s complaint to order her to vacate the property owned by their mother, Ruby Buckalew.

¶ 3. Finding no error, we affirm the chancellor’s judgment.

FACTS

¶ 4. In 2004, Ruby suffered a stroke and was diagnosed with Alzheimer’s. She subsequently moved to Colorado to live with her daughter, Diane, who cared for Ruby during this time. Diane and Ruby later returned to Mississippi from Denver, and they moved into Ruby’s home in Lauder-dale County, Mississippi. James and Diane agreed that Diane would live in Ruby’s home to provide full-time care for Ruby. Pursuant to a warranty deed, Ruby conveyed her house to Diane and reserved a life estate unto herself.

¶ 5. On March 9, 2006, in the Chancery Court of Lauderdale County, the chancellor rendered a judgment appointing James, Ruby’s son, as guardian for the person and the estate of Ruby. On June 26, 2008, while Diane was in Las Vegas, James and his wife, Vickie, removed Ruby from her home and brought her to live in their house. James stated that he noticed Ruby growing despondent and losing weight while under Diane’s care. He decided to place Ruby under his care. Ruby remained in James and Vickie’s home for six weeks, until they moved her to a trailer located behind their home, where Ruby lived with a sitter. On August 29, 2008, James filed a complaint to order Diane to vacate Ruby’s property, alleging that Diane occupied the home as part of the arrangement to care for Ruby, and since Ruby had been removed from the home, Diane must vacate the property.

¶ 6. On September 18, 2008, Diane filed her answer and counterclaim to James’s complaint, alleging that since the eviction notice did not constitute a guardianship matter, James improperly brought the eviction action in chancery court. She further claimed that James, as guardian, failed to petition the chancellor for authority to file the complaint as required by Mississippi Code Annotated section 93-13-27 (Rev.2004); thus, the complaint should be dismissed. In her counterclaim, Diane submitted that pursuant to Mississippi Code Annotated section 93-13-23 (Rev. 2004), sufficient cause existed for the chancellor to remove James as guardian, alleging that James created a conflict of interest between himself and his ward, and he “has failed or refused to act in a matter to protect [Ruby’s] person and estate.”

¶7. On April 13, 2009, Diane filed a motion to dismiss her counterclaim to remove James as Ruby’s guardian. On that same day, the chancellor held a hearing on the matter and subsequently entered an order dismissing the counterclaim without prejudice. On April 14, 2009, the chancellor rendered a memorandum opinion and corresponding order to overrule Diane’s September 18, 2008 motion to dismiss based on her answer to James’s complaint. In the order, the chancellor held that the chancery court had proper jurisdiction over the eviction matter and found James’s failure to comply with section 93-13-27 to be harmless error.

¶ 8. On June 19, 2009, the chancellor issued a pretrial order, noting that James filed a Rule 11 motion pursuant to Mississippi Rule of Civil Procedure 11 requesting that sanctions in the form of expenses and attorney’s fees incurred in the defense of the action be granted on the grounds that the entire action by Diane was frivolous and unwarranted and done for the purpose of harassing James.

¶ 9. At a trial held on September 23, 2009, Joe Clay Hamilton, James’s attorney, testified as to the amount of time and services he had rendered in the action on behalf of James. Henry Palmer, Diane’s attorney, testified regarding the services he had rendered in representing Ruby in the action. James; Vickie; and Donna Riley, James’s and Diane’s sister, all testified that Diane did not provide the necessary and appropriate care for Ruby and that Ruby’s condition had steadily declined while under Diane’s care. James, Vickie, and Donna further testified that Ruby’s condition improved after her removal from Diane’s care. Diane did not appear at the trial, and her attorney stated that he was unaware of her location.

¶ 10. The chancellor issued an order on October 26, 2009, in which he found that Diane did have some hope of success upon the motion to dismiss filed in her September 18, 2008 answer, noting that James had failed to request the authority of the chancellor to commence the civil action as required by section 93-13-27. The chancellor further found that Diane also had some hope of success in her defense of James’s complaint ordering her to vacate Ruby’s property, noting that Diane’s allegation that she properly cared for Ruby was supported by her answer to interrogatory number eight propounded in discovery. The chancellor found that Diane’s counterclaim against James, however, was a frivolous pleading, and he issued sanctions by granting James a judgment against Diane as well as reasonable attorney’s fees in the sum of $800.

¶ 11. On November 2, 2009, James filed a motion for reconsideration and to alter and amend the judgment, asking the chancellor to order Diane to pay all of James’s attorney’s fees as testified to at trial, as well as the expenses incurred by having Ruby occupy the trailer next to his house, which prevented James from renting the trailer for income. Diane filed a motion to reconsider and/or amend or alter the opinion on November 5, 2009, arguing that her attorney provided sufficient evidence at trial to show that her counterclaim was reasonable under the circumstances; thus, imposing sanctions was unreasonable and harsh.

¶ 12. On December 7, 2009, the chancellor issued an order overruling the motions of both parties and denying their requested relief. This appeal followed.

STANDARD OF REVIEW

¶ 13. This Court’s standard of review regarding a chancellor’s determination is well established. The chancellor’s findings of fact shall not be disturbed on appeal unless the findings are “manifestly wrong, clearly erroneous, or not supported by substantial credible evidence.” City of Picayune v. S. Reg’l Corp., 916 So.2d 510, 518 (¶22) (Miss.2005) (citing Brown v. Miss. Dep’t of Human Servs., 806 So.2d 1004, 1005 (¶ 4) (Miss.2000)). “Where there is substantial evidence to support the chancellor’s findings, [the appellate court] is without the authority to disturb the chancellor’s conclusions ...” Id. at 518-19 (¶ 22) (citing In re Guardianship of Savell v. Renfroe, 876 So.2d 308, 312 (¶ 4) (Miss. 2004)). While deference is given to the chancellor’s determinations of fact, this Court retains a de novo review of all questions of law. Id. at 519 (¶ 23).

DISCUSSION

¶ 14. James argues that Diane’s answer, defenses, and counterclaim constituted frivolous pleadings. Diane states that she filed these pleadings in response to James’s complaint to remove her from Ruby’s house. James argues that Diane filed these pleadings with the intent to delay her eviction from the house. He asserts that despite the numerous allegations made by Diane, neither she nor her attorney offered any evidence to support these claims. James contends that the chancellor’s sanction and award of attorney’s fees in the amount of $800 bore no relationship to the actual time and expense incurred in the defense of the frivolous pleadings. James submits that in addition to the $800, he should also be awarded attorney’s fees in the amount of $6,970.

¶ 15. Diane, however, argues that the chancellor erred in finding that she had no hope of success on her counterclaim. She also argues that the chancellor erred in finding that her counterclaim constituted a frivolous pleading; therefore, he consequently erred by awarding sanctions against her under Rule 11.

¶ 16. Pursuant to Rule 11(b), a trial judge may order a party to pay expenses or attorney’s fees “[i]f any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay.” M.R.C.P. 11(b). See also Miss.Code Ann. § 11-55-5(1) (Rev.2002) (The Litigation Accountability Act); Randolph v. Lambert, 926 So.2d 941, 944 (¶8) (Miss.Ct.App. 2006). A pleading is frivolous pursuant to Rule 11 if “objectively speaking, the pleader ... has no hope of success.” Ill. Cent. R. Co. v. Broussard, 19 So.3d 821, 824 (¶ 13) (Miss.Ct.App.2009). The decision to award monetary sanctions under Rule 11 is left to the discretion of the trial court. M.R.C.P. 11(b). This Court reviews the judgment of the sanctioning trial court for abuse of discretion. Wyssbrod v. Wittjen, 798 So.2d 352, 357 (¶ 17) (Miss.2001). “In the absence of a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors, the judgment of the court’s imposition of sanctions will be affirmed.” Id. (citations and quotations omitted); See Eatman v. City of Moss Point, 809 So.2d 591, 593 (¶ 8) (Miss.2000) (The Mississippi Supreme Court provided that it would assume that factual determinations made by the trial judge were sufficient to support an order imposing reasonable attorney expenses where no specific finding has been made.).

¶ 17. In Walton v. Walton, 44 So.3d 1035, 1039-40 (¶¶ 19-20) (Miss.Ct.App. 2010), this Court found no abuse of discretion in the chancellor’s decision that the complaint at issue in that case constituted a frivolous pleading, but remanded for proof of attorney’s fees upon finding the award exceeded the proof in the record. In Walton, this Court explained that the record contained no documentation regarding the time that the attorney in question spent responding to the frivolous complaint. Id.

¶ 18. The present case differs from Walton with respect to the documentation contained in the record as to attorney’s fees and the chancellor’s calculation of the fee award. In the October 26, 2009 opinion in the record before us, we find that the chancellor set forth his calculations regarding attorney’s fees. The record also shows that the chancellor reviewed the time sheets submitted by James’s attorney. The chancellor explained in the opinion that he evaluated the length of the attorney’s practice since 1959, as well as his skill and expertise, in determining an hourly rate of $200. The chancellor found that the attorney spent a total of 30.85 hours on the case as a whole, but the chancellor found $800 to be an appropriate fee for an award of attorney’s fees for the defense of the frivolous counterclaim.

¶ 19. We find that the record contained sufficient evidence to support the chancellor’s award of attorney’s fees in the amount of $800. We note that the record shows that the October 26, 2009 opinion reflects the chancellor’s determination and calculation of attorneys’s fees for the defense of the counterclaim only. We acknowledge that as the fact finder, the chancellor possesses the best position to evaluate frivolity and determine the facts. Eatman, 809 So.2d at 594 (¶ 12). Thus, we find no abuse of discretion by the chancellor in finding Rule 11 sanctions appropriate based upon his finding that Diane had filed a frivolous counterclaim. The record contains substantial evidence to support the chancellor’s decision. City of Picayune, 916 So.2d at 518 (¶ 22).

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND THE APPELLEE.

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

      . In her brief, we note that Diane asserts that after dismissing her counterclaim, she moved to Las Vegas, Nevada, where friends had offered her a temporary home.

      . Plus interest at the rate of seven percent per annum.


author: SMITH, Justice. MURDOCK, Justice

text:
    Ex parte Ronda McMICHAEL. (In re Forney McMichael v. Ronda McMichael). Ex parte Forney L. McMichael. (In re Forney McMichael v. Ronda McMichael).
    1090150 and 1090179.
    Supreme Court of Alabama.
    Sept. 24, 2010.
    Rehearing Denied Nov. 19, 2010.

      Arthur F. Fite III of The Fite Law Firm, L.L.C., Anniston; Steven D. Adcock, Talladega; and Susan P. Billeaud and M. Shane Lucado of Lucado Law Firm, LLC, Birmingham, for petitioner/respondent Ronda McMichael.
    Christopher M. Hopkins of Campbell & Hopkins, Anniston, for petitioner/respondent Forney McMichael.
   SMITH, Justice.

These consolidated cases involve petitions for a writ of mandamus filed by the defendant below, Ronda McMichael (case no. 1090150), and by the plaintiff below, Forney L. McMichael (case no. 1090179). In case no. 1090150, we grant the petition and issue the writ. In case no. 1090179, we transfer the petition to the Court of Civil Appeals.

I. Facts and Procedural History

On August 14, 2009, Forney McMichael filed in the Calhoun Circuit Court a complaint for a divorce, seeking to terminate his marriage to Ronda McMichael. In the divorce complaint, Forney sought, among other things, a judgment awarding him “all right, title and interest” in “MACS VACS LLC” (“the LLC”), a business located in Calhoun County. The parties own the LLC jointly with right of survivorship.

The Calhoun Circuit Court entered an ex parte temporary restraining order (“the Calhoun TRO”). In the Calhoun TRO, the court found that “[Forney], and the assets subject to the jurisdiction of the Court, particularly [the] LLC, and the parties’ real property and homes ..., may suffer irreparable harm without the entry of this Order” and ordered, in pertinent part:

“1. That the parties be and are restrained from disposing, transferring, spending, giving away, or secreting any property, whether such property be real, personal, or mixed, tangible or intangible, which may be subject to the jurisdiction of the Court, including but not limited to money and other liquid financial assets, books and records of business and personal assets and liabilities, records and statements from banks and other financial institutions;
“2. That the parties are not restrained from the payment of routine, reasonable, and necessary ordinary living and business expenses but each must maintain, or have maintained in legible form, written records of such expenditures, such records to be made available to the other party for copying upon request.”

On August 25, 2009, the Calhoun Circuit Court entered an order granting Ronda’s “motion to dismiss or transfer for improper venue” and transferring the divorce action “in its entirety” to the Talladega Circuit Court.

On August 26, 2009 — the day after the Calhoun Circuit Court transferred the divorce action to the Talladega Circuit Court — Forney filed a declaratory-judgment action in the Calhoun Circuit Court, contending that Ronda’s “disruptive behavior and actions, as well as her breaches of her member’s fiduciary duty, have caused the LLC ... damage[ ] to its operation and business.” In the complaint, Forney sought “a declaration of the rights and duties of the parties under the LLC’s Articles of Organization, Operating Agreement, and the Limited Liability Company Act[, codified at Ala.Code 1975, § 10-12-1 et seq.].” Specifically, Forney sought an order declaring, among other things, that he is the “sole manager” of the LLC; that Ronda “is a member of the LLC, but not the Manager of [the LLC]”; and that “[Forney] and only [Forney] can take the necessary and appropriate action(s) to operate the LLC.”

On September 14, 2009, the Talladega Circuit Court held a hearing on a motion filed by Ronda seeking to dissolve the Calhoun TRO. On September 28, 2009, the Talladega Circuit Court entered a consent order concerning various matters including matters regarding the LLC. In the consent order, the Talladega Circuit Court dissolved the Calhoun TRO; stated that Forney would “continue to be the Manager of [the] LLC, accompanied with the rights and duties as stated in the Operating Agreement of [the] LLC”; and stated that Ronda initially would assist with the preparation and filing of the LLC’s 2007 and 2008 federal and state tax returns and then “assume a role in the sales division of [the] LLC.” The order further provided, in pertinent part:

“2. The parties be and are restrained from disposing, transferring, spending, giving away, or secreting any property, whether such property be real, personal or mixed, tangible or intangible, which may be subject to the jurisdiction of the Court, including but not limited to money and other liquid financial assets, books and records of business and personal assets and liabilities, records and statements from banks and other financial institutions, pendente lite.
“3. The parties are not restrained from the payment of routine, reasonable, and necessary ordinary living and business expenses but each must continue to maintain, or have maintained in legible form, written records of such expenditures, such records to be made available to the other party for copying upon request, pendente lite.”

On September 29, 2009, Ronda moved the Calhoun Circuit Court to dismiss or, in the alternative, stay the declaratory-judgment action (“motion to dismiss”). In the motion to dismiss, Ronda noted that the Talladega Circuit Court had entered an order on September 28, 2009, “with respect to the operation of [the] LLC” and contended that the declaratory-judgment action “is an attempt to circumvent the jurisdiction of the Talladega County Circuit Court, which has properly exercised jurisdiction over [the LLC].” Ronda further contended that “both Courts cannot exercise jurisdiction of ... [the] LLC, and Talladega [Circuit Court] has the sole jurisdiction on this matter”; thus, Ronda argued, “this [declaratory-judgment action] must be dismissed or at least stayed.” The Calhoun Circuit Court entered an order denying Ronda’s motion to dismiss on September 30, 2009.

On October 1, 2009, the Calhoun Circuit Court held a hearing on a motion filed by Forney seeking a pendente lite order. On October 2, 2009, the Calhoun Circuit Court entered an order providing, in pertinent part, that Forney is the manager of the LLC, which, the court noted, “is consistent with the Order entered by consent in the parties’ divorce action [in the Talladega Circuit Court]”; that, as manager of the LLC, Forney has “the authority to allow [Ronda] on the LLC business premises ... and the authority to tell her she cannot come onto those premises or must leave those premises”; that Ronda’s duties in the LLC’s sales department “do[ ] not require her presence on the LLC’s premises”; and that Ronda “can come onto the business premises if invited by the Manager, and she must leave if directed to do so by the Manager.”

The Calhoun Circuit Court’s October 2, 2009, order also noted that, during the previous day’s hearing, it had denied Ronda’s oral motion to dismiss, in which she argued that “the LLC does not exist” because, Ronda said, the LLC’s articles of organization were improperly filed with the Probate Judge of Calhoun County rather than with the Probate Judge of Talladega County, which is the county where the registered agent for the LLC, Forney, is located. In the order, the Calhoun Circuit Court stated:

“The Court denied [Ronda’s] Motion to Dismiss. Ala.Code [1975,] § 10-12-12(a)[,] provides that an LLC’s Articles of Organization are to be delivered to the Probate Judge, and if the probate judge finds that the articles of organization conform to law, the probate judge shall, pursuant to Ala.Code [1975,] § 10-12 — 12(a)(l)[,] endorse on the articles of organization and on each of the copies the word ‘Filed’ with the hour, day, month and year of filing, pursuant to Ala.Code [1975,] § 10-12-12(a)(2), file the Articles of Organization in the office of the probate judge and certify the two copies. Ala.Code [1975,] § 10-12-14(a)[,] provides that ‘[U]pon the filing of the articles of organization with the probate judge, the limited liability company’s existence shall begin.’ Thus, if the articles are filed by the probate judge, the LLC exists. The Court has [not] found, nor has counsel cited the Court to, anything in the Limited Liability Act[,] AIa.Code [1975,] § 10-12-1, et seq.[,] that causes the LLC’s existence to cease, or not begin, if the organizers submit the wrong address for the registered office and registered agent. The statutory scheme requires scrutiny by the Probate Judge to see that the articles conform to law. If the Probate Judge fails to catch such an error, nevertheless the LLC’s existence begins when the Probate Judge stamps and files the Articles of Organization. Accordingly the Motion to Dismiss was denied. The Court also notes, in the alternative, that [Ronda] would be es-topped to deny the LLC’s existence when she seeks the Court to appoint her to manage the LLC pendente lite, that the parties would be estopped by their operation as an LLC for years, that the parties had acquiesced to the filing in Calhoun County, that being within the city limits of Oxford, which itself is in Calhoun County, is a sufficient connection to Calhoun County, that numerous federal and state governmental entities have recognized the LLC’s existence, and that it would be chaotic for the Court to declare a nullity an asset that the parties are contesting in their Tal-ladega County divorce. If the Talladega County Family/Circuit Court acquired jurisdiction over the LLC as marital property subject to distribution in a Judgment of Divorce, it would not be for this Court to declare that asset a nullity.”

On October 2, 2009, Ronda filed a petition for rule nisi in the Talladega Circuit Court, alleging that Forney had violated the terms of the Talladega Circuit Court’s September 28, 2009, consent order. Specifically, Ronda alleged that Forney had violated the consent order by “transferring] $100,000 from [an] ... LLC account and depositing] said monies into an account at a banking institution without [Ronda’s] consent”; by “instructing] [Ronda] not to come on the premises of [the] LLC”; and by attempting to have Ronda arrested “when she entered the [LLC’s] premises for work purposes.” The petition requested, among other things, that the Talladega Circuit Court require Forney to appear and to show cause why he should not be found in contempt of the consent order.

On October 5, 2009, the Talladega Circuit Court entered an order setting Ronda’s petition for rule nisi for a hearing on October 6, 2009. Forney failed to appear for the hearing; he contends that he failed to appear because he did not receive proper notice of the hearing. In any event, on October 8, 2009, the Talladega Circuit Court entered an order finding Forney in contempt of the September 28, 2009, consent order. Specifically, the Talladega Circuit Court found that Forney “willfully failed and refused to abide by this Court’s Order by withdrawing $100,000 from [the LLC’s] account at Region’s Bank” and that Forney “willfully failed and refused to abide by this Court’s Order by instructing [Ronda] not to come onto the premises of [the LLC] on three (3) occasions ... and by seeking law enforcement intervention to enforce same.”

Forney moved the Talladega Circuit Court to vacate its October 8, 2009, order finding him in contempt of the consent order. In the motion, Forney argued, among other things, that the Talladega Circuit Court lacked subject-matter jurisdiction over the property of the LLC, and, thus, Forney argued, the court’s order finding him in contempt for transferring $100,000 from the LLC’s Regions Bank account is void. Specifically, Forney argued that the Talladega Circuit Court, while presiding over the divorce action, could not properly exercise subject-matter jurisdiction over the property of the LLC, i.e., the $100,000, because, Forney said, the property of the LLC belongs not to its members (Forney and Ronda) but to the LLC itself. Forney claimed that the Tal-ladega Circuit Court acquired subject-matter jurisdiction over the parties’ “membership interests]” in the LLC but not over the property of the LLC. In support of his argument, Forney cited Ala.Code 1975, § 10-12-28(b), which provides:

“All property originally contributed to the limited liability company or subsequently acquired by a limited liability company by purchase or otherwise is limited liability company property. A member has no interest in specific limited liability company property.”

Relying on § 10-12-28(b), Forney contended that the Talladega Circuit Court’s consent order “could not reach” the property of the LLC. For all that appears, Forney’s motion to vacate the Talladega Circuit Court’s October 8, 2009, order finding him in contempt of the consent order was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.

On October 9, 2009, Ronda filed in the Calhoun Circuit Court a motion for a change of venue, seeking a transfer of the declaratory-judgment action from the Calhoun Circuit Court to the Talladega Circuit Court; it appears that the Calhoun Circuit Court did not rule on that motion.

The parties filed respective petitions for writs of mandamus in the Court of Civil Appeals; the Court of Civil Appeals transferred the petitions to this Court for lack of subject-matter jurisdiction. This Court stayed all proceedings in both the Calhoun Circuit Court and the Talladega Circuit Court pending resolutions of these petitions. Forney has filed a motion to dismiss Ronda’s mandamus petition. However, the arguments Forney raises in the motion to dismiss are also raised in For-ney’s answer to Ronda’s mandamus petition in case no. 1090150, and those arguments actually present reasons stating why Ronda’s mandamus petition should be denied rather than dismissed. Accordingly, Forney’s motion to dismiss is due to be denied.

II. Standard of Review

“ ‘A writ of mandamus is an extraordinary remedy, and it will be “issued only where there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).’ ”

Ex parte Bentley, 50 So.3d 1063, 1068 (Ala.2010) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)).

III. Issues

Case no. 1090150

Ronda presents two issues in her petition for a writ of mandamus. First, she contends that this Court should issue the writ and direct the Calhoun Circuit Court to rescind all orders regarding the operation of the LLC, to make no further orders regarding its operation, and to dismiss the action pending in that court or stay the proceeding there pending resolution of the divorce action in the Talladega Circuit Court. Specifically, Ronda contends that, “[sjince the Talladega [Circuit] Court has the powers to enter orders regarding the assets of the parties to the divorce action, then it should also enter such orders over the parties’ LLC, and not the Calhoun Circuit Court.” Second, Ronda contends that, under Ala.Code 1975, § 10-12-9, an LLC “does not come into legal existence” until its articles of organization are filed with the probate judge of the county in which the registered agent of the LLC is located; thus, Ronda says, because the LLC’s articles of organization were not filed in the county of Forney’s residence (Talladega County) until September 30, 2009 (see supra note 3), the Calhoun Circuit Court may not exercise jurisdiction over the LLC.

Case no. 1090179

Forney presents seven issues in his mandamus petition; those issues can be combined into the following two issues: (1) Whether the Talladega Circuit Court had subject-matter jurisdiction over the property of the LLC such that it could properly find Forney in contempt of its September 28, 2009, consent order for, among other things, transferring $100,000 from an LLC bank account; and (2) if the Tallade-ga Circuit Court did have subject-matter jurisdiction over the property of the LLC, whether the court erred by finding Forney in contempt of that court’s September 28, 2009, consent order.

IV. Discussion

A. Whether the Calhoun Circuit Court or the Talladega Circuit Court is the proper forum to resolve the parties’ dispute concerning the management and operation of the LLC

At the outset, we note that there is no dispute as to the Talladega Circuit Court’s subject-matter jurisdiction over the divorce action or as to the Calhoun Circuit Court’s subject-matter jurisdiction over the declaratory-judgment action. Rather, the threshold issue for this Court’s consideration is whether Forney may simultaneously maintain the divorce action in the Talladega Circuit Court and the subsequently filed declaratory-judgment action in the Calhoun Circuit Court. Ronda contends in her mandamus petition, as she did in her motion to dismiss the declaratory-judgment action, that the Talladega Circuit Court, which was the first of the two courts to assume jurisdiction over these issues, is the proper forum in which to resolve both the divorce action and the issues raised in the declaratory-judgment action, i.e., the parties’ dispute concerning the management and operation of the LLC. We agree.

In Ex parte Liberty National Life Insurance Co., 631 So.2d 865 (Ala.1993), this Court stated:

“Tt is uniformly held that where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgment or decrees....
“‘... “It is a familiar principle that when a court of competent jurisdiction has become possessed of a case its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and no court of co-ordinate authority is at liberty to interfere with its action.... ”
“ ‘... “All the authorities recognize the importance of carefully preserving the boundary line between courts of concurrent jurisdiction, in order to prevent conflicts, and to preserve in harmony their relations to each other.” ’
“Ex parte Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938).
“These principles have been restated numerous times:
“ ‘[Wjhere two courts have equal and concurrent jurisdiction, the court that first commences the exercise of its jurisdiction in a matter has the preference and is not to be obstructed in the legitimate exercise of its powers by a court of coordinate jurisdiction.’
“Ex parte State ex rel. Ussery, 285 Ala. 279, 281, 231 So.2d 314, 315 (1970).

631 So.2d at 867.

In this case, the concurrent exercise of jurisdiction by the Talladega Circuit Court and the Calhoun Circuit Court has resulted in inconsistent orders. The Calhoun Circuit Court’s October 2, 2009, order provides that Forney is the manager of the LLC and, as the manager, that Forney may, among other things, refuse Ronda entry onto the premises of the LLC and order her to leave those premises. The Talladega Circuit Court’s September 28, 2009, consent order also provides that Forney is the manager of the LLC; however, it does not authorize Forney to make decisions regarding if and when Ronda may enter upon the premises of the LLC. As a result, Forney has been found to be in contempt of the consent order for, among other things, instructing Ronda not to come upon the premises of the LLC; however, under the Calhoun Circuit Court’s October 2, 2009, order, it is permissible for Forney to exclude Ronda from the premises of the LLC. This is the very type of conflict the principle set forth in the above-quoted authorities seeks to avoid. See Ex parte Liberty Nat’l Life Ins. Co., 631 So.2d at 867 (““‘All the authorities recognize the importance of carefully preserving the boundary line between courts of concurrent jurisdiction, in order to prevent conflicts(quoting Ex parte Burch, 236 Ala. at 665, 184 So. at 697 (emphasis added))).

We conclude that, because the Talladega Circuit Court initially exercised jurisdiction over the parties and their property in the divorce action, it must be allowed to pursue and exercise its jurisdiction to the exclusion of all coordinate tribunals; thus, the Calhoun Circuit Court erred in denying Ronda’s motion to dismiss insofar as it denied the alternative relief requested in the motion, namely, an order staying the declaratory-judgment action pending resolution of the divorce action in the Talladega Circuit Court. See Ex parte Liberty Nat’l Life Ins. Co., supra; see also Ex parte Murphy, 886 So.2d 90, 94 (Ala.2003) (“ ‘It must be recognized ... that all matters related to a marriage may come within the authority of the court sitting in equity when the parties submit themselves to its jurisdiction by the filing of a suit for divorce.’ ” (quoting Oliver v. Oliver, 431 So.2d 1271, 1276 (Ala.Civ.App.1983), citing in turn Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967) (emphasis added))).

Accordingly, Ronda’s petition in case no. 1090150 is due to be granted as to this issue.

B. Whether the Talladega Circuit Court had subject-matter jurisdiction to enter the order finding Forney in contempt for transferring $100,000 from an LLC bank account

Section 12-3-10, Ala.Code 1975, provides, in pertinent part, that “[tjhe Court of Civil Appeals shall have exclusive appellate jurisdiction of ... all appeals in domestic relations cases, including annulment, divorce, adoption, and child custody cases and all extraordinary writs arising from appeals in said cases.” Section 12-3-11, Ala.Code 1975, provides, in pertinent part:

“Each of the courts of appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Each court [of appeals] shall have authority to ... issue writs of habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction.... ”

Because this issue arises from an order entered by the Talladega Circuit Court in a domestic-relations case, it falls within the exclusive appellate jurisdiction of the Court of Civil Appeals. See § 12-3-10; § 12-3-11.

C. The propriety of the Talladega Circuit Court’s finding of contempt

Forney argues that the Talladega Circuit Court erred by finding him in contempt of its September 28, 2009, consent order; however, Forney may not seek relief from a finding of contempt by a petition for writ of mandamus. See Ex parte Boykin, 656 So.2d 821 (Ala.Civ.App.1994), in which the Court of Civil Appeals stated:

“A review of a judgment of contempt is now by appeal. Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994). ‘It is now a well-established general rule in this state that if the matters complained of can ultimately be presented by appeal, a writ of mandamus will not be issued.’ Ex parte Spears, 621 So.2d 1255, 1256 (Ala.1993) (eitation omitted). However, our supreme court ‘has recognized certain exceptions to this general rule in specific cases where appeals are not considered to be adequate to prevent “undue injury.” ’ Spears, 621 So.2d at 1256. These exceptions include: the enforcement of a trial court’s compliance with an Alabama Supreme Court mandate; a review of discovery rulings; to enforce a statutory or constitutional right to a jury trial; and to vacate certain interlocutory rulings in divorce cases. Spears.”

656 So.2d at 827-28 (footnote omitted); see Rule 70A(g), Ala. R. Civ. P. (providing that an adjudication of contempt is reviewable by either an appeal or, in certain circumstances, the writ of habeas corpus).

In his reply brief in case no. 1090179, Forney contends that, if this Court determines that the finding of contempt is reviewable by appeal rather than by petition for writ of mandamus, this Court should treat his mandamus petition as an appeal for the purpose of considering the propriety of the contempt finding; however, jurisdiction to review a finding of contempt arising from a domestic-relations case lies not with this Court but, instead, with the Court of Civil Appeals. See K.S.C.C. v. W.H.C., 857 So.2d 830, 835 (Ala.Civ.App.2002) (“The Court of Civil Appeals has jurisdiction to hear an appeal from a finding of contempt — criminal or civil — if the finding of contempt arises out of a domestic-relations case.” (citing Tetter v. State, 358 So.2d 1046 (Ala.1978); Rule 70A, Ala. R. Civ. P.)); Shonkwiler v. Kriska, 780 So.2d 703, 705 (Ala.Civ.App.2000) (same).

V. Conclusion

For the above-stated reasons, in case no. 1090150 we grant the petition and issue the writ. Specifically, we direct the Calhoun Circuit Court to stay the declaratory-judgment action pending resolution of the divorce action in the Talladega Circuit Court. Additionally, Forney’s motion to dismiss Ronda’s petition is denied.

Because, as discussed in Parts IV.B. and IV.C. of this opinion, this Court is without jurisdiction to review the issues presented by Forney’s petition for a writ of mandamus, we hereby transfer Forney’s petition in case no. 1090179 back to the Court of Civil Appeals. Insofar as Forney’s petition challenges the propriety of the Tal-ladega Circuit Court’s finding of contempt, his petition shall be treated as a timely filed appeal.

1090150 — MOTION TO DISMISS PETITION DENIED; PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ„ concur.

1090179 — PETITION TRANSFERRED.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in part and dissents in part.

MURDOCK, Justice

(concurring in case no. 1090150 and concurring in part and dissenting in part in case no. 1090179).

I do not see how we can apply the principles explained in Ex parte Liberty National Life Insurance Co., 631 So.2d 865 (Ala.1993), which we purport to apply in Part IV.A. of the main opinion, without deciding — indeed, I think we inherently have decided implicitly, if not explicitly, in Part IV.A. — the issue described in part IV.B. I therefore would extend this Court’s opinion (and it is within our supervisory authority to do so) to fully explain why the Talladega domestic-relations court has the power to issue and enforce its order requiring the parties to act in a manner that avoids diminution of the value of their respective ownership interests in the LLC. Compare Gibbs v. Gibbs, 653 So.2d 300 (Ala.Civ.App.1994), with TenEyck v. TenEyck, 885 So.2d 146 (Ala.Civ.App.2003). I therefore respectfully dissent as to Part IV.B. of the main opinion.

I concur with the main opinion in all other respects.

      . For all that appears, the parties resided in Talladega County until, at the earliest, the time they separated; although unclear, that appears to have been the basis for Ronda’s motion to transfer the divorce action from the Calhoun Circuit Court to the Talladega Circuit Court. See Ala.Code 1975, § 30-2-4 ("Complaints for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred....").

      . The above-quoted language from the Tal-ladega Circuit Court's consent order is virtually identical to language in the Calhoun TRO.

      . The parties initially filed the articles of organization for the LLC with the Probate Judge of Calhoun County on December 8, 2004; the articles of organization were filed with the Probate Judge of Talladega County on September 30, 2009. The articles of organization state that Forney is the registered agent for the LLC and that Forney's address is # 2 Heritage Way, Oxford, AL, which is in Talladega County. An exhibit attached to Forney’s mandamus petition in case no. 1090179 reveals that, on October 13, 2009, the address of the registered agent for the LLC (Forney) was changed from # 2 Heritage Way, Oxford, AL, to the physical address of the LLC, 2345 Highway 21 South, Oxford, AL, which is in Calhoun County.

      . Forney filed a copy of the Calhoun Circuit Court’s October 2„ 2009, order in the Tallade-ga Circuit Court.

      . Forney’s counsel, Christopher M. Hopkins, was present at the October 6, 2009, hearing.

      . As noted, Ronda also contends that, under Ala.Code 1975, § 10-12-9, an LLC “does not come into legal existence" until its articles of organization are filed with the probate judge of the county in which the registered agent of the LLC is located: thus, Ronda says, because the articles of organization for the LLC were not filed in the county of Forney’s residence (Talladega County) until September 30, 2009, this error somehow results in the Calhoun Circuit Court’s being without jurisdiction over the LLC. However, having already concluded that the Talladega Circuit Court is the proper forum to resolve the disputes arising out of both actions, it is unnecessary to reach the merits of this issue.