text:
    Robert W. TRIPLETT a/k/a Robert Warren Triplett, Jr. a/k/a Robert Triplett, Jr. a/k/a Robert Triplett, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01495-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2014.
    Robert Sneed Laher, Tupelo, attorney for appellant.

      Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On September 5, 2012, in the Lowndes County Circuit Court, Robert W. Triplett was found guilty of one count of exploitation of a child and was sentenced, as a habitual offender, to forty years in the custody of the Mississippi Department of Corrections (MDOC). He was also ordered to pay a fine of $50,000. Triplett appeals.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 18, 2009, Triplett contacted the Lowndes County Sheriffs Department to report that his stepdaughter was missing. After six days of investigation, a search warrant was issued for Triplett’s home in an effort to obtain evidence to assist with the search for the stepdaughter. Several computers and other electronics, including a HP Pavillion 9000 computer, were removed from Triplett’s home and taken to the local crime lab.

¶ 8. Shortly after, Triplett contacted the sheriffs department inquiring about when the computers would be returned, specifically referencing the HP Pavillion 9000 computer. A mirror image of the HP Pavillion 9000 computer was created by the crime lab, and the computer was then retened to Triplett. Subsequently, the crime lab informed the sheriffs department that images of child pornography had been found on the HP Pavillion 9000 computer. The sheriffs department then asked Triplett to return the computer to them.

¶ 4. Afterwards, Tony Perkins, an investigator with the sheriffs department, and Clay Baines, an investigator with the Mississippi Bureau of Investigation, interviewed Triplett and obtained his statement. Triplett was then arrested and charged with exploitation of a child. A bench trial was held on September 4, 2012, and Triplett was found guilty of exploitation of a child.

¶ 5. Prior to the trial, a motion was filed with the circuit court to amend the indictment and charge Triplett as a habitual offender. The motion to amend the indictment provided the following convictions to support habitual-offender status:

1. That the defendant, ROBERT W. TRIPLETT, was previously convicted in the Circuit Court Court of Jackson County, Mississippi, in Count 1 of Cause Number 2008-10,005, for the crime of Attempted Aggravated Assault, and sentenced on April 10, 2010, to serve a term of one (1) year or more in the Mississippi Department of Corrections;
2. That the defendant, ROBERT W. TRIPLETT, was previously convicted in the United State District Court, Northern District of Mississippi, in Count 1 of Cause Number 1:09CR00154-001, for the crime of Possession of Child Pornography, and sentenced on April 14, 2011, to serve a term of one (1) year or more in the United States Bureau of Prisons[.]

Following the trial, the circuit court held a hearing on the motion. Triplett’s attorney objected to the use of the federal conviction as a basis for Triplett’s habitual-offender status.

¶ 6. Although Triplett’s attorney admitted that he had no legal authority to support his position, he argued that “it would be inequitable ... to allow one conviction to stand for two when they all arose from the same exact set of circumstances and constitute the exact same charge, albeit in different forums.” In response, the State stated the following:

There are two sovereigns. In the more, quite frankly, sensitive .area of the law, double jeopardy, the application of the doctrine ... that counsel espouses doesn’t apply. If a defendant robs a bank, he can not only be charged with armed bank robbery in the federal system, but he can also be prosecuted for armed robbery in the state system, and it is not double jeopardy. That being so, Your Honor, it would seem to me there is no — if Constitutional protections against double jeopardy do not apply, I do not see why it would apply in the instance of enhanced punishment.... Now, I will say this, I will always stipulate to the truth: The facts and circumstances surrounding the conviction in federal court [are], in fact, substantially the same as the facts and circumstances as this particular case. It is based on the same search warrant, the same production of — of images from several computers owned by Mr. Triplett. I do not, quite frankly, know which image was actually used in the federal system.... This Court has learned by now these images float around for — for years, and I don’t know if this particular set of images was, in fact, the images that they used in the federal system to base their indictment on. It does not say, and there’s no way I can tell.

Subsequently, the circuit court granted the motion to amend the indictment. Triplett was then sentenced as a habitual offender to serve forty years for the conviction of exploitation of a child, all in the custody of the MDOC, and ordered to pay a fine of $50,000. Aggrieved, Triplett now appeals.

DISCUSSION

¶ 7. “The standard of review for a judgment entered following a bench trial is well settled. In a bench trial, the trial judge is ‘the jury’ for all purposes of resolving issues of fact.” Sendelweck v. State, 101 So.3d 734, 738-39 (¶ 19) (Miss.Ct.App.2012). “The Mississippi Supreme Court has stated that[,] for review of the findings of a trial judge sitting without a jury, the appellate court will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong.” Id. at 739 (¶ 19). “However, where questions of law are raised the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999) (citations omitted).

¶ 8. On appeal, Triplett does not challenge his conviction, but argues, rather, that the circuit court erred in sentencing him as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007). Section 99-19-81 states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

The State has the burden to prove that a defendant qualifies for habitual-offender status. Short v. State, 929 So.2d 420, 426 (¶ 16) (Miss.Ct.App.2006). In doing so, the State must produce sufficient evidence proving beyond a reasonable doubt “that the defendant was ‘convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times’ and for which the defendant was sentenced to separate terms of at least one year’s imprisonment.” Id.

¶9. Triplett asserts that the federal conviction used in support of his habitual-offender status resulted from the exact same set of facts and circumstances as the conviction at issue in this appeal, and, therefore, is not a charge “arising out of separate incidents at different times.” The State contends that since numerous images of child pornography were retrieved from three computers in Triplett’s home, there were multiple separate incidents of possession of child pornography. Further, the State argues that the images could have been obtained at different times since the computers spanned multiple years and Triplett’s son indicated that he had seen the images two months prior.

¶ 10. The State also contends that since both charges could be brought without violating Triplett’s protections against double jeopardy, then there would not be a violation in the application of the enhancement. In support of this argument, the State cites to Brown, 731 So.2d at 600 (¶ 12), which states that “[t]he Dual Sovereignty doctrine recognizes that more than one offense results where a single criminal act violates the laws of more than one State or a State and the Federal Government.” Id. (citing Heath v. Alabama, 474 U.S. 82, 86, 106 S.Ct. 483, 88 L.Ed.2d 387 (1985)). While it is true that Triplett’s offenses can be prosecuted separately, “[sjection 99-19-81 achieves a juridical union the Double Jeopardy Clause does not.” Pittman v. State, 570 So.2d 1205, 1206 (Miss.1990); see also Pharr v. State, 465 So.2d 294, 300-01 (Miss.1984).

¶ 11. The Mississippi Supreme Court has provided guidance on determining whether charges arise out of separate incidents at different times under section 99-19-81, in the following cases: Pittman, 570 So.2d 1205, Nicolaou v. State, 534 So.2d 168 (Miss.1988), and Riddle v. State, 413 So.2d 737 (Miss.1982). In Riddle, a jury found Riddle guilty of three charges — kidnapping, rape, and burglary — all of which had been committed on the same day and involved the same victim. Riddle, 413 So.2d at 738. Upon agreement, the cases were consolidated and tried together. Id. On appeal, Riddle argued, and the State acknowledged, that the habitual-offender statute had been inappropriately applied. Id. The supreme court agreed and found that the only previous crimes committed by Riddle were those that arose out of a single incident. Id. The case was remanded for resentencing. Id.

¶ 12. In Nicolaou, the defendant was convicted of capital murder and later sentenced as a habitual offender. Nicolaou, 534 So.2d at 170. The underlying offenses relied upon to support the habitual-offender sentence were two murders, armed rob: bery, and two kidnappings, which had all been committed on the same day. Id. The State conceded that the two murders were not separate incidents for purposes of habitual-offender status. Id. However, the State argued that the robbery and two kidnappings took place separate from the murders. Id. at 173. Subsequently, the supreme court held that “[a]ll crimes took place on the same day, but the two murders and the kidnappings occurred at different times and different places, and clearly were two separate ‘incidents.’ ” Id.

¶ 13. In Pittman, two prior burglaries of separate schools on the same day were used to sentence Pittman as a habitual offender for a conviction of burglary. Pittman, 570 So.2d at 1205. Pittman argued, based on Riddle, that the State had failed to prove that his two prior convictions arose out of separate incidents at different times. Id. at 1206. In its review of Rid- die, the supreme court found: “Though subject to separate prosecution, the Riddle offenses arose out of a common temporal nucleus of operative fact and did not qualify as ‘separate incidents at different times.’” Id. Although the Pittman burglaries occurred in rapid succession, they took place at separate schools, and the supreme court was obliged to find that the acts were separate incidents that occurred at different times. Id. at 1207.

¶ 14. The indictment in this case charges Triplett with possessing, on or about September 24, 2009, a visual depiction of an actual child engaging in sexually explicit conduct. The judgment from the district court stated that Triplett was guilty of possession of child pornography and that the offense ended on September 24, 2009. The State admits that the state and federal charges arose from evidence obtained during the search of Triplett’s home. Nearly 300 images were tagged as unlawful images and sent to the National Center for Exploited and Abused Children for further investigation. Of those 300 images, five were used to prosecute the state charge. However, the State failed to prove that the images used in this case were different from the images used to prosecute the federal charge.

¶ 15. After a review of the record, we cannot find that the State proved beyond a reasonable doubt that the charges arose from separate incidents. The supreme court has held that “a prior offense may be considered under [section 99-19-81] even if it occurred on the same day as the instant offense as long as the two charges arose from ‘separate incidents.’ ” Bergeron v. State, 60 So.3d 212, 215 (¶ 8) (Miss.Ct.App.2011) (quoting Buckley v. State, 511 So.2d 1354, 1359 (Miss.1987)). It is clear that the instant offense arose from the same evidence and on the same day as the federal offense. This Court has reasoned:

It is understandable why two crimes originating out of the same nucleus of operative facts should be counted as one crime for evaluating whether one should receive an enhanced penalty for his continual involvement in criminal activity. If the purpose of the statute is to deter subsequent criminal activity, it would be patently unfair to count multiple crimes — arising out of a common nucleus of operative facts and committed at the same time by an individual during one foray into criminal activity — as separate crimes because neither of the multiple crimes constitutes subsequent involvement in criminal activity. Such an interpretation is consistent with the laudable purpose of the statute: to stiffen the penalty for repeat offenders, not for current offenders who commit several crimes during their one foray into criminal activity.

Id. at 216 (¶ 10) (citing Otis v. State, 853 So.2d 856, 862 (¶ 16) (Miss.Ct.App.2003)).

¶ 16. Since both convictions derive from the same materials, the same investigation, and the same officers, we agree with Triplett that it would be inequitable to allow the federal conviction to be used to support his habitual-offender status, even though the charges were brought in different forums. As such, the judgment of the circuit court is reversed in part as to the habitual-offender sentence only, and the case is remanded for resentencing. In all other respects, the judgment is affirmed.

¶ 17. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF EXPLOITATION OF A CHILD IS AFFIRMED. THE SENTENCE, AS A HABITUAL OFFENDER, IS REVERSED, AND THIS CASE IS REMANDED FOR RESEN-TENCING CONSISTENT WITH THIS

OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND THE APPEL-LEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Tamara K. (Eldridge) SUMMERLIN, Appellant v. George Michael ELDRIDGE, Appellee.
    No. 2013-CA-00261-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2014.

      David Graham Kennedy, attorney for appellant.
    Richard Shane McLaughlin, Tupelo, D. Kirk Tharp, Nicole H. McLaughlin, Tupe-lo, attorneys for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. In this child-custody matter, we must determine whether the chancellor erred in modifying the custody of the parties’ three children by giving the father primary physical custody of them.

PROCEDURAL HISTORY

¶ 2. Tamara K. Summerlin (Tamara) and George Michael Eldridge (Mike) were married on July 16, 1994. The Union County Chancery Court granted the couple a divorce on May 24, 2011. In the final judgment of divorce, which included the property-settlement agreement, Tamara was awarded custody of the couple’s youngest two daughters, Haley and Grace. Mike was awarded custody of the couple’s oldest daughter, Madison. Four days after the divorce was granted, Tamara married Del Summerlin and moved to Alabama, taking Haley and Grace with her.

¶ 3. On August 1, 2011, Tamara filed a motion for modification, seeking to change custody of Madison and Haley. Mike agreed, and the parties submitted an agreed order on August 19, 2011. Custody of Madison was changed from Mike to Tamara, while custody of Haley was changed from Tamara to Mike. Over the next several months, the parties each filed motions for contempt and modification. After a hearing on February 27, 2012, concerning an emergency petition filed by Mike, the chancellor maintained Tamara’s custody of Madison and Grace and Mike’s custody of Haley. However, the parties subsequently agreed that Madison would live with Mike. The only pending issue was Grace’s custody. During the litigation, the chancellor appointed a guardian ad litem, Regan S. Russell.

¶ 4. After a hearing, the chancellor issued a final judgment on October 4, 2012, awarding primary physical custody of all three children to Mike. Tamara filed a motion to reconsider, which was denied.

If 5. Tamara now appeals, asserting the chancellor erred by (1) allowing testimony concerning matters prior to the August 19, 2011 order, and (2) modifying custody. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. This Court has a limited standard of review in domestic-relations cases. Arrington v. Arrington, 80 So.3d 160, 164 (¶11) (Miss.Ct.App.2012). We will not reverse a chancellor’s findings on a modification of custody unless the chancellor was manifestly ■wrong or clearly erroneous, or applied an improper legal standard. In re E.C.P., 918 So.2d 809, 822 (¶ 58) (Miss.Ct.App.2005) (citing Mabus v. Mabus, 847 So.2d 815, 818 (¶8) (Miss.2008)).

¶ 7. In appeals from child-custody decisions, our polestar consideration, like the chancellor’s, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App.2009) (quoting Hensarling v. Hensarling, 824 So.2d 583, 587 (¶8) (Miss.2002)). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.2d 944, 950 (¶ 14) (Miss.Ct.App.2004) (quoting Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss.2000)).

DISCUSSION

I. EVIDENCE OF PRIOR CONDUCT

¶ 8. Tamara argues the chancellor erred in allowing testimony concerning matters that occurred prior to the August 19, 2011 order. According to Lackey v. Fuller, 755 So.2d 1083, 1086 (¶ 13) (Miss.2000), this practice is not permissible because of the res judicata principle. Tamara is correct that res judicata prohibits the chancellor from considering circumstances that occurred prior to the decree being considered for modification. Id. However, in this instance, the order awarding the custody of Grace to Tamara was entered on May 24, 2011, and not on August 19, 2011. The August 19, 2011 order changes custody of Madison and Haley but does not mention Grace.

¶ 9. Furthermore, in denying Tamara’s motion to reconsider, the chancellor noted that the only “evidence of events predating the original divorce decree was considered as impeachment evidence to [Tamara’s] and Del’s testimony.” The chancellor found the facts distinguishable from those in Lackey. Our review of a chancellor’s decision to admit evidence falls under the familiar abuse-of-discretion standard. Id. at (¶ 10). In this instance, we find no abuse of discretion by the chancellor. This issue is without merit.

II. MODIFICATION

¶ 10. In her other issue on appeal, Tamara contends the chancellor erred in modifying custody of Grace. To successfully move to modify custody of a child, a noncustodial parent must prove by a preponderance of the evidence that (1) “a substantial change in circumstances has transpired since issuance of the custody decree,” (2) “this change adversely affects the child’s welfare,” and (3) “the child’s best interest mandates a change of custody.” McDonald v. McDonald, 39 So.3d 868, 880 (¶ 37) (Miss.2010) (citation omitted). “A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest.” Johnson v. Gray, 859 So.2d 1006, 1013 (¶33) (Miss.2003) (citing Sanford v. Arinder, 800 So.2d 1267,1272 (¶ 18) (Miss.Ct.App.2001)).

¶ 11. The chancellor found the following amounted to a material change in circumstances: (1) Tamara’s marriage and relocation to Alabama; (2) Tamara and Del’s interference with Mike’s visitation and contact with Grace; (3) an incident occurring in February 2012; (4) “Del’s presence has generated an oppressive atmosphere in Tamara’s home for the children”; (5) Del’s deteriorating relationship with Tamara’s other two children; (6) Del’s two sons teasing Grace; (7) Del requiring Grace to call him “Daddy Del” against Mike’s wishes; (8) Tamara’s recent smoking habit, and Grace’s exposure to it; (9) Del’s admission that he tape records the telephone conversations between Mike and Grace; and (10) Tamara’s other children no longer desire to live with her due to Del’s behavior. The chancellor also had concerns about Tamara’s credibility.

¶ 12. The February 2012 incident involved Del confronting Madison about her desire to live with Mike. Grace and Tamara were also present. Del became angry and ultimately approached Madison in a confrontational manner. Tamara interceded, and Del yelled that they “could all f* * *ing rot in hell.” After Del left the house, Tamara locked herself, Madison, and Grace in her bedroom and kept a loaded firearm nearby. Tamara conceded she was worried about the safety of her children. Tamara called Mike and informed him of what had occurred. Tamara then sent Madison and Grace to stay with Mike. This incident prompted the emergency hearing of February 27, 2012. Tamara’s sister, Dee, testified Tamara was afraid of Del.

¶ 13. Jennifer, Tamara’s oldest child from another relationship, testified that Del had a temper and verbally attacked everyone living in the house. Jennifer testified she lived with Tamara and Del for approximately one and a half months but refused to move to Alabama with them due to her fears concerning Del. Madison testified she was afraid of Del because he frequently yelled at them. Haley testified she wanted to live with Mike and did not want Del present during her visitation with Tamara.

¶ 14. After determining that a material change of circumstances existed, the chancellor considered the following factors to determine whether a change of custody was in Grace’s best interest: (1) age, health, and sex of the child; (2) which parent had the continuity of care prior to the previous modification; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of each parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parents and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003,1005 (Miss.1983).

¶ 15. The chancellor conducted a thorough analysis of each factor and determined that it was in Grace’s best interest to live with Mike. The chancellor found only the first factor—age, health, and sex of the child—to favor Tamara and the second factor—continuity of care—only partially favored Tamara in regard to Grace’s care. Upon review of the record, we find sufficient evidence to support the chancellor’s decision to modify custody of Grace to Mike.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J„ NOT PARTICIPATING.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).


author: GRIFFIS, P.J.,

text:
    Gabriel McDOWELL a/k/a Gary McDowell, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01229-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2014.
    Gabriel McDowell, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Gabriel McDowell continues his effort to obtain post-conviction collateral relief (PCCR). He was convicted of the sale of cocaine and was sentenced as a habitual offender to thirty years’ imprisonment without the possibility of parole. The Mississippi Supreme Court affirmed his conviction and sentence. McDowell v. State, 807 So.2d 413, 426 (¶ 40) (Miss.2001).

¶ 2. Thereafter, McDowell filed a PCCR motion, and the supreme court granted a limited evidentiary hearing. McDowell v. State, 917 So.2d 801, 802 (¶ 1) (Miss.Ct.App.2005). The circuit court then resentenced McDowell to serve life without parole. Id. at (¶ 3). Subsequently, the supreme court denied McDowell’s application for leave to appeal and dismissed his motion to vacate the sentence. Id.

¶ 3. McDowell then filed a petition for a ■writ of habeas corpus in federal court. McDowell v. State, 552 F.Supp.2d 602, 604 (S.D.Miss.2008). The federal court granted the petition and remanded the case to the circuit court for sentencing. Id. Thereafter, the circuit court resentenced McDowell to serve a term of life imprisonment as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2007). McDowell v. State, 20 So.3d 1216, 1216 (¶1) (Miss.2009). On appeal, the court held:

[T]he judgment of the Hancock County Circuit Court imposing on Gabriel McDowell a life sentence without parole is vacated; and this case is remanded to the Circuit Court of Hancock County with instructions to resentence Gabriel McDowell to a term of imprisonment of thirty years in the custody of the Mississippi Department of Corrections, and such sentence shall not be reduced or suspended, nor shall McDowell be eligible for parole or probation.

Id. at (¶ 2). On February 1, 2010, the circuit court sentenced McDowell as ordered.

¶ 4. In May of 2013, McDowell asked the supreme court for an order and application for leave to proceed in the circuit court. McDowell claimed that he was improperly sentenced; he was subjected to double jeopardy; and his indictment was faulty. The court denied the motion and application.

¶ 5. Despite the supreme court’s denial of leave to proceed, McDowell filed a PCCR motion with the circuit court. The circuit court recognized that McDowell did not have permission of the supreme court to proceed and denied the motion. McDowell now appeals the circuit court’s decision.

¶ 6. “When a case is affirmed on direct appeal, permission from the Mississippi Supreme Court must be obtained in order to seek post-conviction relief in the circuit court.” Campbell v. State, 75 So.3d 1160, 1161-62 (¶ 7) (Miss.Ct.App.2011) (citing Miss.Code Ann. § 99-39-7 (Supp.2013)). “This procedure is not merely advisory, but jurisdictional.” Id. at 1162 (¶ 7) (quoting Caldwell v. State, 9 So.3d 432, 433 (¶ 6) (Miss.Ct.App.2008)). Additionally, the supreme court’s denial of an application for leave to seek post-conviction relief in the circuit court is a final judgment and bars successive applications. Miss.Code Ann. § 99-39-27(9) (Supp.2013).

¶ 7. The circuit court was correct. Both the circuit court and this Court lack jurisdiction to consider McDowell’s PCCR motion. Accordingly, McDowell’s appeal is dismissed.

¶ 8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ„ CONCUR.


author: BOLIN, Justice. SHAW, Justice

text:
    Ex parte FOUNDATION BANK. (In re CMC Properties, LLC v. Emerald Falls, LLC, et al.)
    1120920.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    R. Cliff Mendheim of Prim & Men-dheim, LLC, Dothan, for petitioner.
    Chip Cleveland of Cleveland & Riddle, Attorneys at Law, LLC, Prattville, for respondent.
   BOLIN, Justice.

Foundation Bank (“the Bank”) petitions this Court for a writ of mandamus compelling Autauga County Circuit Judge Sibley Reynolds to vacate his order staying the Bank’s attempted redemption in the probate court of certain property pursuant to Ala.Code 1975, § 40-10-120 et seq. We grant the petition and issue the writ.

I. Facts and Procedural History

The property at issue consists of two parcels of contiguous property located in Autauga County, which includes equipment for outdoor entertainment opportunities for the community. The property is identified as Parcel I: 19-06-23-2-003-003.000 and Parcel II: 19-06-23-2-003-004.000 (hereinafter referred to collectively as “the property”). Emerald Falls, LLC, and its only member, Alice L. Smith (hereinafter referred to collectively as “Emerald Falls”), owned the property originally.

On May 18, 2010, Rob Riddle purchased the property at a tax sale as a result of Emerald Falls’ failure to pay the ad valo-rem taxes on the property. Riddle allegedly purchased insurance on the property and made certain improvements to the property. On January 1, 2011, Riddle executed a document, assigning his interest in the property to CMC Properties, LLC (“CMC”); the assignment was not recorded until February 11, 2011.

On January 17, 2011, Riddle sent written notification to Working Capital No. 1, LLC (“Working Capital”), the mortgagee of the property, advising Working Capital that he had purchased the property belonging to Emerald Falls at the 2010 tax sale.

On January 19, 2011, Riddle filed in the circuit court a complaint against Emerald Falls pursuant to § 40-10-74, Ala.Code 1975, alleging that Emerald Falls had abandoned the property and that Riddle was entitled to immediate possession of the property. Riddle also sought a judgment declaring his rights and/or interests in the property.

On May 27, 2011, the circuit court entered a consent order, in which Emerald Falls and Riddle acknowledged that Riddle had purchased the property subject to the redemption rights of Emerald Falls, that Riddle had made improvements to the property, and that Riddle was entitled to be reimbursed for those improvements. The consent order stated that should Emerald Falls attempt to redeem the property, the matter would be placed on the active trial docket by way of motion from either party to address the amount of taxes owed, reimbursement for improvements, and the accrual of statutory interest.

On January 30, 2013, Riddle sent written notification to the Bank, advising the Bank that he had purchased the property belonging to Emerald Falls at the 2010 tax sale. Riddle sent this notification to the Bank after discovering that Working Capital had assigned its mortgage on the property to the Bank as additional security for a line of credit held by the Bank. As previously noted, Riddle assigned his interest in the property to CMC on January 1, 2011; the assignment was recorded on February 11, 2011. We hereinafter refer to Riddle and CMC collectively as CMC.

On March 2, 2013, an attorney representing both the Bank and Working Capital (hereinafter referred to collectively as “the Bank”) gave written notice to CMC of its intent to redeem the property. The attorney requested that CMC, pursuant to § 40-10-122, Ala.Code 1975, identify “any and all amounts that [CMC] claim are either ‘permanent improvements’ or ‘preservation improvements’ as defined [§ 40-10-122(d) ].” A dispute arose between CMC and the Bank regarding the amount of moneys CMC claimed it had expended on the property. The Bank and CMC thereafter appointed individual referees pursuant to § 40-10-122(d), which provides that if the proposed redemptioner does not agree with the value of the improvements stated by the purchaser, the proposed redemptioner “shall appoint a referee to ascertain the value of such permanent or preservation improvements as applicable.”

On March 31, 2013, the Bank notified the probate court in writing that it was electing to exercise its statutory right of redemption pursuant to § 40-10-120 et seq., Ala.Code 1975. The Bank further requested that the probate court provide it with the amount of money to be deposited for the redemption pursuant to § 40-10-122(a), which, according to the probate court, was $32,249.96 — representing the amount for which the property was sold, with interest.

On April 1, 2013, CMC moved the circuit court to enter a stay prohibiting the probate court from accepting any redemption moneys from the Bank pending a hearing in the circuit court regarding the redemption amount. In its motion to stay, CMC specifically stated that a resolution had not been reached between CMC and the Bank regarding the amount necessary to redeem the property and that the parties had appointed referees as required. CMC also stated in its motion that “it has come to the attention of [CMC] that [the Bank is] still in contact with [the probate court] in hopes to back door the redemption process and thus pay monies directly to the Probate Office so a Certificate of Redemption can be obtained ... for the property.” On April 1, 2013, the circuit court entered an order, which stated: “Redemption issue stayed, pending hearings as set.”

On April 2, 2013, the Bank attempted to redeem the property by depositing with the probate court $32,249.96. The probate court entered an order, denying the Bank’s attempted redemption. Specifically, the probate court stated that the Bank was authorized as the mortgagee of the property to redeem the property and “[b]ut for the order entered by [the circuit court], this court would have accepted the redemption amount being paid by [the Bank]....”

On April 9, 2013, the Bank filed this petition for a writ of mandamus, compelling the circuit court to vacate its April 1, 2013, order staying the “redemption issue” pending hearings in the circuit court. In its petition, the Bank argues that the circuit court lacked subject-matter jurisdiction to prohibit.it from exercising its statutory right of redemption in the probate court pursuant to Ala.Code 1975, § 40-10-122. As an additional ground for the issuance of the writ, the Bank argues that a party desiring to redeem property is neither required to pay a tax-sale purchaser amounts owed under § 40-10-122(b) and/or (c), Ala.Code 1975, prior to redeeming the property pursuant to subsection (a) of that Code section, nor is a proposed redemptioner required to resolve a dispute regarding any disputed amounts owed under § 40-10-122(b) and/or (c) prior to redeeming property pursuant to subsection (a).

II. Standard of Review

“ ‘The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003). However, ‘[f]or the writ of mandamus to issue “ ‘[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief.’ ” ’ Ex parte Vance, 900 So.2d 394, 398-99 (Ala.2004).”

Ex parte Tuscaloosa County Special Tax Bd., 963 So.2d 610, 611-12 (Ala.2007).

III. Ala.Code 1975, § lfi-10-122 and § 10-10-127

Section 40-10-122, Ala.Code 1975, governs the manner of statutory redemption when land is sold at a tax sale to a party other than the State. At all times pertinent to this action § 40-10-122 provided:

“(a) In order to obtain the redemption of land from tax sales where the same has been sold to one other than the state, the party desiring to make such redemption shall deposit with the judge of probate of the county in which the land is situated the amount of money for which the lands were sold, with interest payable at the rate of 12 percent per annum from date of sale, and, on the portion of any excess bid that is less than or equal to 15 percent of the market value as established by the county board of equalization, together with the amount of all taxes which have been paid by the purchaser, which fact shall be ascertained by consulting the records in the office of the tax collector, or other tax collecting official, with interest on said payment at 12 percent per annum. If any taxes on said land have been assessed to the purchaser and have not been paid, and if said taxes are due which may be ascertained by consulting the tax collector or other tax collecting official of the county, the probate judge shall also require the party desiring to redeem said land to pay the tax collector or other tax collecting official the taxes due on said lands which have not been paid by the purchaser before he or she is entitled to redeem the same....
“(b) With respect to property located within an urban renewal or urban redevelopment project area designated pursuant to Chapters 2 or 3 of Title 24, the proposed redemptioner must pay to the purchaser or his or her transferee, in addition to any other requirements set forth in this section, the amounts set forth below:
“(1) All insurance premiums paid or owed by the purchaser for casualty loss coverage on insurable structures with interest on said payments at 12 percent per annum.
“(2) The value of all permanent improvements made on the property determined in accordance with this section with interest on said value at 12 percent per annum.
“(c) With respect to property which contains a residential structure at the time of the sale regardless of its location, the proposed, redemptioner must pay to the purchaser or his or her transferee, in addition to any other requirements set forth in this section, the amounts set forth below:
“(1) All insurance premiums paid or owed by the purchaser for casualty loss coverage on the residential structure with interest on the payments at 12 percent per annum.
“(2) The value of all preservation improvements made on the property determined in accordance with this section with interest on the value at 12 percent per annum.
“(d) As used herein, ‘permanent improvements’ shall include, but not be limited to, all repairs, improvements, and equipment attached to the property as fixtures. As used herein, ‘preservation improvements’ shall mean improvements made to preserve the property by properly keeping it in repair for its proper and reasonable use, having due regard for the kind and character of the property at the time of sale. The proposed redemptioner shall make written demand upon the purchaser of a statement of the value of all permanent or preservation improvements as applicable made on the property since the tax sale. In response to written demand made pursuant to this subsection, within 10 days from the receipt of such demand, the purchaser shall furnish the proposed redemptioner with the amount claimed as the value of such permanent or preservation improvements as applicable; and within 10 days after receipt of such response, the proposed redemp-tioner either shall accept the value so stated by the purchaser or, disagreeing therewith, shall appoint a referee to ascertain the value of such permanent or preservation improvements as applicable. The proposed redemptioner shall in writing (i) notify the purchaser of his or her disagreement as to the value; and (ii) inform the purchaser of the name of the referee appointed by him or her. Within 10 days after the receipt of such notice, the purchaser shall appoint a referee to ascertain the value of the permanent or preservation improvements as applicable and advise the proposed redemptioner of the name of the appointee. Within 10 days after the purchaser has appointed his or her referee, the two referees shall meet and confer upon the award to be made by them. If they cannot agree, the referees shall at once appoint an umpire, and the award by a majority of such body shall be made within 10 days after the appointment of the umpire and shall be final between the parties.
“(e) If the proposed redemptioner fails or refuses to nominate a referee as provided in subsection (d), he or she must pay the value put upon the improvements by the purchaser. If the purchaser refuses or fails to appoint a referee, as provided in subsection (d), the purchaser shall forfeit his or her claim to compensation for such improvements. The failure of the referees or either of them to act or to appoint an umpire shall not operate to impair or forfeit the right of either the proposed redemptioner or the purchaser in the premises and in the event of failure without fault of the parties to affect an award, the appropriate comí shall proceed to ascertain the true value of such permanent or preservation improvements as applicable and enforce the redemption accordingly.”

(Emphasis added.)

Section 40-10-127, Ala.Code 1975, governs the issuance of certificates of redemption and provides, in pertinent part:

“Upon the payment of the amount required by law for the redemption of the lands sold for taxes by a person entitled to redeem, the judge of probate, or official who perfoms the same function, shall issue that person a certificate of redemption describing the lands, setting forth the facts of the sale substantially as contained in the certificate of purchase, the date of redemption, the amount paid, by whom the lands were redeemed, and make the proper entries in the book of sales in his or her office and immediately give notice of the redemption to the county treasurer or custodian of the county funds. The judge of probate, or official who performs the same functions, shall sign the certificate.”

(Emphasis added.)

IV. Discussion

In Alabama, circuit courts have only a “general superintendence” over probate courts. Ala.Code 1975, § 12-11-30(4). See also Franks v. Norfolk Southern Ry., 679 So.2d 214, 216 (Ala.l996)(“Encom-passed in this superintendence is the power to review certain judgments and orders of the probate court, either through direct appeal or by petition for an extraordinary writ.”).

The jurisdiction of probate courts in Alabama is set forth in § 12-13-1, Ala.Code 1975, which provides, in part:

“(a) The probate court shall have original and general jurisdiction as to all matters mentioned in this section and shall have original and general jurisdiction as to all other matters which may be conferred upon them by statute, unless the statute so conferring jurisdiction expressly makes the jurisdiction special or limited.”

See also Wallace v. State, 507 So.2d 466, 468 (Ala.1987) (“The jurisdiction of the probate court is limited to the matters submitted to it by statute.”).

Based on the clear language of § 40-10-122, the probate court has, to the exclusion of all other courts, exclusive jurisdiction over the statutory redemption process. And, as discussed below, the process of redemption involves several requirements, if applicable, that must be met before a certificate of redemption is issued. In other words, contrary to the Bank’s argument, the process of depositing with the probate court “the amount of money for which the lands were sold, with interest,” pursuant to § 40-10-122(a), is only one affirmative requirement stated in the entirety of § 40-10-122.

Based on the unambiguous language of § 40-10-127, the probate court also has, to the exclusion of all other courts, the exclusive power to issue to the redemptioner a certificate once the redemption process is complete. Accordingly, the circuit court in this case did not have subject-matter jurisdiction to enter an order staying the Bank’s statutory right of redemption in the probate court, and its order purporting to do so is void. “Any action taken by a trial court without subject-matter jurisdiction is void.” Johnson v. Neal, 39 So.3d 1040,1045 (Ala.2009).

As previously stated, the Bank argues as an additional ground for issuance of the writ that a party desiring to redeem property is neither required to pay to the tax-sale purchaser any amounts owed under § 40-10-122(b) and/or (c) prior to redeeming the property pursuant to subsection (a) of that Code section, nor is a proposed redemptioner required to resolve any dispute regarding amounts owed under § 40-10-122(b) and/or (c) prior to redeeming the property pursuant to subsection (a). We disagree. As the title implies, § 40-10-122 governs the “Manner of redemption when land [is] sold to [a] party other than [the] state.” The statute is unambiguous, and all the requirements set forth in each applicable subdivision must be satisfied before a certificate of redemption can be issued pursuant to § 40-10-127.

The first part of 40-10-122(a) provides that “[i]n order to obtain the redemption of land from tax sales .. ,,the party desiring to make such redemption shall deposit with the judge of probate ... the amount of money for which the lands were sold, with interest-” (Emphasis added.) The second part of 40-10-122(a) provides that if there are any taxes due on the subject land, “the probate judge shall also require the party desiring to redeem the land to pay the tax collector ... the taxes due on the lands ... before he or she is entitled to redeem the same.... ” (Emphasis added.) Accordingly, a party desiring to redeem land must deposit with the probate court “the amount of money for which the property was sold, with interest....” And, if there are any taxes due, the party must also pay the tax collector “before he or she is entitled to redeem the same.” (Emphasis added.)

In 2002, § 40-10-122 was amended to add subsections (b) through (e). Subsections (a) through (e) constitute the “statutory,” as opposed to “judicial,” redemption scheme (see supra note 3) that must be followed in order for redemption to be completed. '

“Because the meaning of statutory language depends on context, a statute is to be read as a whole. King v. St. Vincent’s Hospital, 502 U.S. 215, 221, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991). Subsections of a statute are in pari materia and ‘should be construed together to ascertain the meaning and intent of each.’ McCausland v. Tide-Mayflower Moving & Storage, 499 So.2d 1378,1382 (Ala.1986).”

Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993).

Each subsection of § 40-10-122 following subsection (a) refers to the “proposed redemptioner.” The proposed redemp-tioner under the statute refers to the same party in subsection (a), i.e., the party “desiring to make such redemption.” Just like the requirement in § 40-10-122(a) by which the redemptioner must pay to a third party, i.e., the tax collector, any unpaid taxes before being entitled to redeem, subsections (b) and (c), if applicable, require the proposed redemptioner to pay the tax-sale purchaser the amounts expended for insurance premiums and improvements “in addition to any other requirements set forth in this section....” (Emphasis added.) Thus, the proposed redemptioner, in an action for a statutory-redemption before the probate court, in addition to paying amounts required under subsection (a), must also pay any amounts owed under subsections (b) and (c) before a certificate of redemption is issued. Section 40-10-122(d) merely defines permanent improvements and preservation improvements and describes the process that the proposed redemptioner and the tax-sale purchaser should use to effect an award in the event of a dispute regarding the amounts claimed under subsections (b) and/or (c).

Section 40 — 10—122(e) provides, in pertinent part:

' “The failure of the referees or either of them to act or to appoint an umpire shall not operate to impair or forfeit the right of either the proposed redemption-er or the purchaser in the premises and in the event of failure without fault of the parties to affect an award, the appropriate court shall proceed to ascertain the true value of such permanent or preservation improvements as applicable and enforce the redemption accordingly.”

(Emphasis added.) Again, § 40-10-122(e) refers to the “proposed redemptioner” and provides that “in the event of failure without fault of the parties to affect an award, the appropriate court shall proceed to ascertain the true value of such permanent or preservation improvements as applicable and enforce the redemption accordingly.” (Emphasis added.) The word “appropriate court” merely refers to the probate court “in the county in which the real property is located,” as referenced in the first sentence of § 40-10-122(a). Accordingly, the probate court has the exclusive jurisdiction under the statute to enforce the statutory redemption by resolving any and all disputes regarding amounts owed under subsections (b) and (c) that cannot without any fault on the parties otherwise be resolved.

V. Conclusion

Because the probate court has exclusive jurisdiction over the entire statutory redemption process, we grant the petition for the writ of mandamus and direct the circuit court to vacate its April 1, 2018, order staying the Bank’s attempted redemption in the probate court.

PETITION GRANTED; WRIT ISSUED.

STUART, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

SHAW, J., concurs in part and concurs in the result.

MOORE, C.J., dissents.

SHAW, Justice

(concurring in part and concurring in the result).

I agree with the holding of the main opinion that Ala.Code 1975, § 40-10-122, in combination with Ala.Code 1975, § 12-13-1, grants the probate court the exclusive jurisdiction to issue a redemption certificate in cases of “statutory” or “administrative” redemption. Further, § 40-10-122 sets forth the procedure to determine the amount to be paid in a redemption case, and Foundation Bank has demonstrated a clear legal right to a writ a mandamus directing the circuit court to cease its attempts to make such a determination and to prevent the probate court from doing so.

The secondary issue presented in the petition — whether one must, before the redemption, pay amounts due under § 40-10-122(b)-(c) (or resolve any disputes as to such amounts) — is pretermitted by the decision regarding jurisdiction in the main opinion. Additionally, the circuit court made no decision on that issue that this Court must order set aside, and there is no indication that the probate court will not properly dispose of this issue. Thus, any discussion of that issue is, in my view, dicta.

      . Secdon 40-10-74, Ala.Code 1975, states, in pertinent part:
      "Any purchaser of lands at a tax sale other than the state or anyone claiming under him shall be entitled to possession of said lands immediately upon receipt of certificate of sale from the tax collector; and, if possession is not surrendered within six months after demand therefor is made by said purchaser or his assignee, the said purchaser or his assignee may maintain an action in ejectment or a statutory real action in the nature of ejectment, or other proper remedy for the recovery of the possession of the lands purchased at such sales and shall be entitled to hold the possession thereof on recovery, subject, however, to all rights of redemption provided for in this title.”

      . After notifying the Bank that he had purchased the property, Riddle filed a second amended complaint to reflect that he had assigned his interest in the property to CMC. The complaint also added the Bank as a party, although no specific claims were asserted against the Bank. CMC, as assignee of the property, filed a third amended complaint stating claims against both the Bank and Working Capital alleging constructive trust, quantum meruit, and unjust enrichment; those claims were based on the improvements CMC had made to the subject property. We note that CMC also named other parties in its complaint; those parties, however, are not relevant to the Bank's mandamus petition.

      . “Under Alabama law, after a parcel of property has been sold because of its owner’s failure to pay ad valorem taxes assessed against that property (see § 40-10-1 et seq., Ala.Code 1975), the owner has two methods of redeeming the property from that sale: ‘statutory redemption' (also known as 'administrative redemption’), which requires the payment of specified sums of money to the probate judge of the county in which the parcel is located (see § 40-10-120 et seq., Ala.Code 1975), and judicial redemption’ under §§ 40-10-82 and 40-10-83, Ala. Code 1975, which involves the filing of an original civil action against a tax-sale purchaser (or the filing of a counterclaim in an ejectment action brought by that purchaser) and the payment of specified sums into the court in which that action or counterclaim is pending.’’

        First Props., L.L.C. v. Bennett, 959 So.2d 653, 654 (Ala.Civ.App.2006). See also Heard v. Gunn, 262 Ala. 283, 78 So.2d 313 (1955) (noting that § 40-10-122 requires the proposed redemptioner to observe the requirements of the statute within three years from the date of the sale; otherwise, the only right to redeem is by virtue of § 40-10-83, Ala. Code 1975); see also William R. Justice, Redemption of Real Property Following Tax Sales in Alabama, 11 Cumb. L.Rev. 331, 335 (1980-81)("The term judicial redemption’ will be used to refer to an owner who redeems his land outside of the statutory setup found in Alabama Code sections 40-10-120 to 40-10-143.”).

      . We note that CMC argues in its response brief that the circuit court's order "did not order the Probate Judge not to issue a redemption certificate to [the Bank], as [the Bank] has argued.” The circuit court’s order, staying the "redemption issue” pending hearings in the circuit court, is not a model of clarity. However, the probate court interpreted the order as precluding it from accepting from the Bank any redemption moneys. And, as previously noted, CMC indicated in its motion to stay that it was basing it motion on the Bank’s attempt to redeem the property with the probate court. We, therefore, interpret the circuit court’s order as staying the Bank’s attempted redemption in probate court pending hearings in the circuit court.


author: STUART, Justice.

text:
    Ex parte George MASON. (In re Kola Oyedepo, individually and as grandfather and next friend of Joshua Dosunmu, a minor v. Janie Pearson Sellers et al.)
    1120531.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    Rehearing Denied Nov. 22, 2013.

      Mark S. Boardman and E. Dianne Gamble of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for petitioner.
    Ted L. Mann of Mann & Potter, P.C., Birmingham, for respondent.
   STUART, Justice.

George Mason petitions this Court for a writ of mandamus directing the Macon Circuit Court to enter a summary judgment for him on the basis of State-agent immunity in the action filed against him by Kola Oyedepo, individually and as grandfather and next friend of Joshua Dosunmu. We grant the petition and issue the writ.

Facts

George Mason is a bus driver employed by the Macon County Board of Education. On September 28, 2009, Joshua Dosunmu, a minor child and a fifth-grade student in the Macon County school system, was a passenger on the school bus Mason was driving. Dosunmu got off the school bus at the Windover Apartments, which are located on Lynn Drive and Martin Luther King Highway/Highway 80 West. After the bus had continued on its route, Dosunmu attempted to cross the highway. He was struck and injured by an automobile, driven by Janie Pearson Sellers. Oyedepo, individually and as grandfather and next friend of Joshua Dosunmu, sued Mason and others alleging negligence and wantonness arising from Mason’s alleged failure to properly supervise Dosunmu and/or his alleged failure to ensure that Dosunmu got off the bus at the appropriate school-bus stopping point.

Mason answered the complaint and subsequently moved for a summary judgment, arguing that he was entitled to State-agent immunity because, he said, as a bus driver employed by the Macon County Board of Education at the time of the accident, he was exercising judgment in transporting and supervising students on the day of the incident. He further asserted that he was performing his duties in a manner consistent with the rules and regulations established by the State of Alabama and the Macon County Board of Education. In support of his motion, he attached a copy of his responses to Oyede-po’s first set of interrogatories and his deposition testimony. Oyedepo opposed Mason’s summary-judgment motion, arguing that Mason was not entitled to State-agent immunity because, he said, a bus driver does not perform a function that would entitle him or her to State-agent immunity. Oyedepo further maintained that, even if Mason is entitled to State-agent immunity, on the day of the incident Mason acted beyond his authority when he allowed Dosunmu to exit the bus at a location that required Dosunmu to cross a four-lane highway to get to his house and that, therefore, he is not immune from civil liability. The trial court denied Mason’s motion. Mason petitions this Court for a writ of mandamus directing the Macon Circuit Court to enter a summary judgment for him on the basis of State-agent immunity.

Standard of Review
“ ‘ “ ‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala. 1996)....
“ ‘ “ ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersollr-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“ ‘ “ ‘An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat’l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).’ ”
‘Ex parte Turner, 840 So.2d 132, 135 (Ala.2002)(quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)). A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: “ ‘(1) a clear legal right 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) the properly invoked jurisdiction of the court.’ ” Ex parte Nall, 879 So.2d 541, 543 (Ala.2003)(quoting Ex parte BOC Group, Inc., 823 So.2d 1270,1272 (Ala. 2001)).’
“Ex parte Yancey, 8 So.3d 299, 303-04 (Ala.2008).”

Ex parte Montgomery Cnty. Bd. of Educ., 88 So.3d 837, 840AU (Ala.2012).

Discussion

Mason contends that, as a bus driver employed by the Macon County Board of Education, he is entitled State-agent immunity from Oyedepo’s claims and that the trial court erred by failing to enter a summary judgment in his favor on that ground.

“ ‘A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“‘(5) exercising judgment in the ■ discharge of duties imposed by statute, rule; or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“ ‘Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“ ‘(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“ ‘(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’
“Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000).
“ ‘This Court has established a “burden-shifting” process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). “A State agent acts beyond authority and is therefore not immune when he or she ‘fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’ ” Giambrone,
874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 178, 178 (Ala.2000)).’
“Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006). Additionally, as this Court recently stated:
“ ‘ “State-agent immunity protects agents of the State in their exercise of discretion in educating students. We will not second-guess their decisions.” Ex parte Blankenship, 806 So.2d 1186, 1190 (Ala.2000). However, “[o]nce it is determined that State-agent immunity applies, State-agent immunity is withheld upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. [Ex parte] Cranman, 792 So.2d [392,] at 405 [ (Ala.2000) ].” Ex parte Bitel, 45 So.3d 1252,1257-58 (Ala.2010).’
“N.C. v. Caldwell, 77 So.3d 561, 566 (Ala.2011).”

Montgomery Cnty. Bd. of Educ., 88 So.3d at 842-43 (footnote omitted).

First, Mason contends that he is entitled to State-agent immunity because, he says, the claims against him are based on acts arising from his performance of official duties and exercise of discretion in supervising students as a bus driver for the Macon County Board of Education. In Ex parte Trottman, 965 So.2d 780, 783 (Ala.2007), this Court held that “educating students” as described in Ex parte Cranman, 792 So.2d 392 (Ala.2000) (adopted by a majority of the Supreme Court in Ex parte Butts, 775 So.2d 173 (Ala.2000)), “includes not only classroom teaching, but also supervising and educating students in all aspects of the educational process.” Alabama caselaw establishes that employees who work in the educational system, other than teachers and administrators, are entitled to State-agent immunity because the performance of jobs in areas other than the classroom involves the “supervising and educating of students.” See Louviere v. Mobile Cnty. Bd. of Educ., 670 So.2d 873 (Ala.1995) (recognizing that janitors and steamfitters are entitled to discretionary immunity); Ex parte Trottman, supra (recognizing that school secretaries and office clerical assistants are entitled to State-agent immunity); Bathgate v. Mobile Cnty. Bd. Sch. Comm’rs, 689 So.2d 109 (Ala.Civ.App.l996)(recognizing that maintenance engineers and facilities managers are entitled to discretionary immunity); and Lennon v. Petersen, 624 So.2d 171 (Ala.1993) (recognizing that athletic trainers are entitled to discretionary immunity). Mason reasons that because the conduct underlying the claims against him involved his exercise of discretion in supervising Dosunmu’s exiting the bus, he is immune from civil liability in his personal capacity.

Oyedepo maintains that Mason is not entitled to State-agent immunity because, he says, bus drivers are not protected from civil liability by immunity. He cites Horton v. Briley, 792 So.2d 432 (Ala.Civ.App.2001). In Horton, a bus driver was sued by a student who was injured when the bus on which she was a passenger collided with another school bus. The Court of Civil Appeals held that the bus driver was not entitled to State-agent immunity, stating:

“Bus drivers certainly use their own judgment or discretion in performing their duties, but that judgment or discretion is not related to the formulation or application of governmental policy. The Cranman court explained, ‘[C]har-acterizing as a discretionary function conduct remote from the execution of governmental policy ... would perpetuate an erroneous construction of the Constitution.’ Cranman, 792 So.2d at 404. Thus, we conclude that the bus drivers are not entitled to State-agent immunity.”

We, however, cannot agree with Oyedepo’s contention that Horton precludes Mason from the protection of State-agent immunity. The determination as to whether a bus driver is entitled to State-agent immunity rests upon whether the claims against the bus driver are based on acts arising from the performance of official duties and the exercise of discretion in the supervision of students. In Horton, the claims arose from the bus driver’s conduct in driving the bus; in this case, the claims arise from Mason’s conduct in supervising a student’s getting off the school bus. Because the conduct at issue in this case involves the exercise of discretion in supervising students, Mason has satisfied his burden of demonstrating that Oyedepo’s claims arise from his exercise of discretion while performing his duties as a bus driver in supervising students and that he is entitled to State-agent immunity.

Mason further contends that the trial court erred in failing to enter a summary judgment based on State-agent immunity because, he says, Oyedepo did not satisfy his burden of demonstrating that Mason acted beyond the scope of his authority. Specifically, he argues that Oyedepo did not establish that he did not abide by the rules and regulations established by the Macon County Board of Education for loading and unloading students from a school bus. According to Mason, he complied with the established rules and regulations of the Macon County Board of Education; he observed Dosunmu and other children get off the school bus at a location designated by the school board onto a side road away from traffic; he had loaded and unloaded Dosunmu at that designated location in the past; on the day of the incident he watched Dosunmu exit the bus in the approved manner; and he did not drive away until all the students who had gotten off the bus at the designated location were safely away from the traffic.

Oyedepo maintains that Mason did not follow the rules and regulations in the Alabama School Bus Driver Handbook and the Alabama Commercial Driver License Manual, which have been adopted by the Macon County Board of Education and that, therefore, he acted outside the scope of his authority and is not immune from civil liability. According to Oyedepo, Mason did not adhere to the following rules:

— The driver should never change stops;
— Students should load or unload only at their school or designated stop;
— Students should not cross a median or divided highway;
— Students should wait on the side of the road on which they live;
— Students should cross the street 10 feet in front of the bus;
— During the loading and unloading process, the driver should COUNT the students and move the bus ONLY after ALL students are safely on the side of the road on which they live or in their seats. Be alert for students’ apparel or carry-on items being caught on the bus handrail, door, door handle, etc.; and
— All students who live on the left side of the road should exit first and cross in single file.

Oyedepo maintains that Mason had no discretion in following these rules and that Mason acted beyond his authority when he dropped Dosunmu, not at a designated location on the side of the highway where Dosunmu’s house is located, but across a four-lane highway from the house.

The evidence submitted to the trial court established that, although Dosunmu exited the school bus at a designated location approved by the Board, Dosunmu did not live on the side of the highway where he exited the bus; that at no time before the departure of the bus from the designated location did Mason observe Dosunmu in or near the flow of traffic; and that Dosunmu was hit by a car while crossing the highway after the bus had continued on its route. The evidence further established that Mason stated that he was unloading Dosunmu in accordance with the rules and regulations; that he did not know that Dosunmu lived across the highway from where Dosunmu got off the bus; and that he did not know Dosunmu would, or encourage Dosunmu to, cross the highway. None of the evidence established that Mason knew or had reason to know that Dosunmu was not exiting the bus at a designated location on the same side of the highway as his house or that Mason suggested, forced, or otherwise caused Dosun-mu to exit the bus at the Windover Apartments. Indeed, Dosunmu in his deposition testimony admitted that he did not know why he got off the bus at the designated spot across the highway from his house. Therefore, Oyedepo did not satisfy his burden of establishing that Mason acted beyond the scope of his authority in supervising Dosunmu, and the trial court erred in failing to enter a summary judgment in Mason’s favor.

Conclusion

Based on the foregoing, because Mason has demonstrated that he is entitled to State-agent immunity as to the claims asserted against him in his individual capacity in Oyedepo’s action, he has established a clear legal right to a summary judgment on those claims. Therefore, we grant the petition and issue a writ directing the Macon Circuit Court to enter a summary judgment in favor of Mason.

PETITION GRANTED; WRIT ISSUED.

BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ„ concur.

MURDOCK, J., concurs in the result.

MOORE, C.J., dissents.

      . "Since [Ex parte] Cranman [, 792 So.2d 392, 405 (Ala.2000) ], we analyze immunity issues in terms of 'State-agent' immunity, rather than 'under the dichotomy of ministerial versus discretionary functions.' Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003).” Howard v. City of Atmore, 887 So.2d 201, 203 (Ala.2003).


author: MOORE, Judge.

text:
    Jeremy L. TANNER v. Erica D. TANNER.
    2120047 and 2120303.
    Court of Civil Appeals of Alabama.
    July 19, 2013.
    Rehearing Denied Sept. 20, 2013.

      Lawrence J. Hallett, Jr., Mobile, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

In appeal no. 2120047, Jeremy T. Tanner (“the husband”) appeals from the denial of his motion to “set aside” a judgment of divorce, entered by the Mobile Circuit Court (“the trial court”), divorcing him from Erica D. Tanner (“the wife”). In appeal no. 2120303, the husband appeals from a judgment entered by the trial court denying his objection to the wife’s relocation with the parties’ children. In appeal no. 2120047, we dismiss the appeal. In appeal no. 2120303, we affirm.

Background

On May 21, 2012, the wife, who was represented by legal counsel, filed a complaint seeking a divorce from the husband; that action was assigned ease no. DR-12-500871. On that same date, the husband, who was acting pro se, filed an answer and waiver, agreeing that the cause could be submitted to the trial court, without testimony, for a final judgment. Although the husband was unrepresented by legal counsel, he acknowledged in his answer and waiver that he was aware that he could have obtained a lawyer had he wished to do so; the husband’s pleading was notarized. The parties also submitted to the trial court a notarized “Settlement Agreement” in which they specified that they would share legal custody of their two minor children, that the wife would serve as the primary physical custodian, and that the husband would have specified visitation rights. The parties also specified how they wished to divide their marital property and the amount of child support to be paid by the husband for the benefit of their minor children. The parties filed with the trial court the necessary Rule 32, Ala. R. Jud. Admin., child-support forms.

Although the trial court signed the parties’ divorce judgment on June 26, 2012, that judgment was not entered into the State Judicial Information System (“SJIS”) until July 9, 2012. By that date, the wife had filed, on June 29, 2012, a request for a protection-from-abuse (“PFA”) order in the Mobile Juvenile Court, after reporting that the husband had assaulted her in the marital home.

Additionally, on July 3, 2012, the husband, now represented by counsel, filed a motion seeking to “set aside” the parties’ settlement agreement and the divorce judgment. The husband asserted that he had signed the divorce documents without the benefit of legal counsel, that the wife had fraudulently induced him into signing those documents, and that his agreement to those documents should be rescinded for various reasons. The husband also asserted that the wife had relocated or intended to relocate with the parties’ minor children to the state of Georgia; the husband requested that the trial court order her to return the children to Alabama. The husband filed an amended motion on July 10, 2013, again seeking to set aside the divorce judgment and objecting to the wife’s relocation.

The trial court scheduled the husband’s motion for a hearing and ordered that the children were not to be removed from the trial court’s jurisdiction pending that hearing. The trial court also appointed a guardian ad litem to represent the children’s best interests.

On July 22, 2012, the husband again filed, pursuant to the “Alabama Parent-Child Relationship Protection Act,” Ala. Code 1975, § 30-3-160 et seq., an objection to the wife’s proposed relocation; that objection was assigned case no. DR-12-500871.01. The husband asserted that, on July 11, 2012, he had received written notice from the wife indicating that she intended to relocate with the children to Georgia on July 27, 2012. The husband further asserted that the wife’s notice failed to comply with the 45-day notice provision of Ala.Code 1975, § 30-3-165(a), that the wife had no proper basis for failing to provide less than the statutorily mandated 45 days’ notice, and that it was not in the children’s best interests to relocate to Georgia. The husband also requested that the trial court issue a preliminary injunction, restraining the wife from relocating the minor children to Georgia or, alternatively, to award him custody of the children. The trial court scheduled the husband’s motions for an August 2, 2012, “office conference.”

On August 1, 2012, the husband filed a motion asserting that the wife had, in fact, relocated the children to Georgia despite the trial court’s previous order. The husband sought an order compelling the children’s immediate return to Alabama and an award of pendente lite custody. Despite the fact that it previously had scheduled the husband’s objection to the wife’s relocation for an August 2, 2012, “office conference,” the trial court scheduled the above-described motions for an August 22, 2012, “office conference.”

On August 2, 2012, the trial court entered an order indicating that, after hearing arguments of counsel, the husband’s motion to set aside the divorce judgment was denied. The trial court also ordered that the parties’ children were to remain in Mobile with the husband for his “belated summer visitation period and [that the children] shall start school in Mobile County.” The trial court scheduled the remaining matters for a hearing on August 20, 2012.

On August 7, 2012, the husband filed, pursuant to Rule 59, Ala. R. Civ. P., a motion to alter, amend, or vacate the trial court’s August 2, 2012, denial of his motion to set aside the divorce judgment. On August 20, 2012, after the parties and their legal counsel appeared for the scheduled hearing, the trial court entered an order resetting the hearing for August 29, 2012, “due to the pending criminal charges.”

On August 30, 2012, the trial court entered an order indicating that the husband’s motions had been the subject of sworn testimony at an August 29, 2012, hearing. The trial court indicated that it was denying the husband’s motion to alter, amend, or vacate the divorce judgment, that the wife was allowed to relocate with the children to Georgia, and that the husband’s visitation with the children was modified as set forth in that order. On October 10, 2012, the husband filed a notice of appeal from the trial court’s August 30, 2012, judgment. That notice of appeal was docketed as appeal no. 2120047.

On September 7, 2012, the husband filed a “Motion to Correct August 30, 2012, Order.” He asserted that the trial court had incorrectly indicated in its August 30, 2012, order that sworn testimony had been taken at the August 29, 2012, hearing. On September 12, 2012, the trial court granted that motion. A September 27, 2012, entry in SJIS reflects the following: “Memo to Atty: Need Order to Match Motion/Corr.”

An October 30, 2012, entry in SJIS reflects that legal counsel for both parties were sent a notice; the contents of that notice are not indicated in the record. On December 11, 2012, the trial court entered an order purporting to set aside the August 30, 2012, judgment based upon a clerical error.

Also on December 11, 2012, the trial court entered a judgment in case no. DR-12-500871.01. That December 11, 2012, judgment was identical to the trial court’s August 30, 2012, judgment that had been entered in case no. DR-12-500871.

On January 9, 2013, the husband filed another notice of appeal. This court docketed that appeal as appeal no. 2120303. On January 10, 2013, the husband filed with the trial court a motion to correct the December 11, 2012, judgment. On February 7, 2013, the trial court entered an order clarifying its December 11, 2012, judgment. In that order, the trial court granted the husband’s motion to correct the December 11, 2012, judgment and stated:

“1. The Court does note for the record that on August 29, 2012, the parties did appear in court with counsel and the guardian ad litem and the parties were sworn in but did not testify. The information which the court relied upon in making the decision to not set aside the agreement came only from the arguments of counsel with respect to what they would expect the evidence to be.
“2. The Court does attach hereto a copy of the transcript ... regarding what was said at the hearing. The Court does note further that the August 30, 2012, order was set aside by the clerk due to it being filed in the wrong point number. The order of December 11, 2012, simply changes the case point number and files the order in the correct case point number.
“3. This order does make it clear that the court based its ruling strictly on the argument presented in the record (which is attached hereto), along with other arguments made in chambers.”

On appeal, the husband asserts that the trial court erred in failing to set aside the judgment of divorce; erred in failing to conduct an evidentiary hearing on his motion to set aside the judgment of divorce; erred in failing to conduct a hearing on his motion to alter, amend, or vacate the judgment of divorce; and erred in denying his objection to the wife’s and the children’s relocation without the benefit of an eviden-tiary hearing.

We first address the husband’s challenge to the trial court’s denial of his motion to set aside the judgment of divorce and the denial of his motion to alter, amend, or vacate that judgment. The husband filed his motion to set aside the divorce judgment before entry of that judgment into SJIS, i.e., before the divorce judgment became final. Upon entry of that judgment into SJIS, however, the judgment became a final one. Additionally, the husband immediately thereafter filed an amended motion seeking to set aside the divorce judgment.

The trial court considered the husband’s motion as a postjudgment motion, and the record indicates that the husband did not object to the trial court’s treatment of his motion to set aside the divorce judgment as a postjudgment motion. See, e.g., McIntyre v. Satch Realty, Inc., 961 So.2d 135 (Ala.Civ.App.2006) (defendant’s motion to set aside nonfinal judgment was directed to the final judgment rather than the nonfinal judgment once the final judgment was entered). Thus, although the husband’s motion to set aside the divorce judgment was filed when the divorce judgment was nonfinal, that motion was properly considered by the trial court as a postjudgment motion addressed to the trial court’s final divorce judgment.

The trial court initially denied the husband’s motion to set aside the divorce judgment on August 2, 2012. Because the trial court had ruled on his motion to set aside, or vacate, the divorce judgment, the husband had 42 days in which to seek appellate review. See Rule 4, Ala. R.App. P. Thus, the husband had until September 13, 2012, to appeal from the trial court’s denial of his motion to set aside the divorce judgment.

Rather than filing a notice of appeal, the husband filed another post-judgment motion, seeking to alter, amend, or vacate the trial court’s denial of the motion to vacate the divorce judgment. A party is not entitled to file successive post-judgment motions. See Wallace v. Belleview Props. Corp., 120 So.3d 485, 489 n. 3 (Ala.2012) (recognizing that a trial court may not entertain successive postjudgment motions and that the filing of such successive motions does not suspend the time for filing a notice of appeal). Thus, the husband’s motion seeking to alter, amend, or vacate the trial court’s denial of his motion to set aside the divorce judgment was a nullity.

Additionally, because the husband did not file his notice of appeal within 42 days of the trial court’s denial of his motion to set aside the divorce judgment, his appeal is untimely. “The filing of a timely notice of appeal is a jurisdictional act.” Painter v. McWane Cast Iron Pipe Co., 987 So.2d 522, 529 (Ala.2007). “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), Ala. R.App. P. See also Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (“[W]e are obligated to dismiss an appeal if, for any reason, [subject-matter] jurisdiction does not exist.”). Therefore, the trial court’s judgment of divorce is final, and we have no jurisdiction to review the merits of that judgment.

The husband, however, filed two notices of appeal from the trial court’s ruling on his objection to the wife’s notice of intent to relocate with the parties’ minor children. The husband filed a notice of appeal from the trial court’s August 30, 2012, judgment, entered in case no. DR-12-500871, and a notice of appeal from the trial court’s December 11, 2012, judgment, entered in case no. DR-12-500871.01. Both were timely filed from their respective judgments. Based on the procedural posture of the actions below, we elect to treat the husband’s objection to the wife’s proposed relocation with the children as the subject of case no. DR-12-500871.01 and appeal no. 2120303. In that appeal, the husband’s sole issue is that the trial court erred by failing to conduct an evi-dentiary hearing before overruling his objection.

We agree with the husband that an evi-dentiary hearing is generally required to resolve an objection to a custodial parent’s intent to relocate with the children. Alabama Code 1975, § 30-3-169.7, provides as follows:

“If the issue of change of principal residence of a child is presented in a petition for divorce or dissolution of a marriage or other petition to determine custody of or visitation with a child, the court shall consider, among other evidence, the factors set forth in Sections 30-3-169.2 and 30-3-169.3[, Ala.Code 1975,] in making its initial determination.”

Additionally, in Anderson v. Anderson, 65 So.3d, 435 (Ala.Civ.App.2010), this court recognized that a trial court is required to conduct an evidentiary hearing in order to determine whether a proposed or actual change of principal residence of a minor child is a ground for a change in the custody of that child. Id. at 441-42.

We conclude, however, that the husband invited the error of which he now complains. Although both parties were present, sworn in, and prepared to testify at the hearing on the husband’s objection, neither party was called to testify. Counsel for both parties stipulated to what they expected the evidence would show if the parties took the witness stand. At no point did the husband’s counsel attempt to call him to testify or object on the basis that the husband had not been allowed to testify. Thus, the husband failed to offer any sworn testimony at the hearing, and, on appeal, he raises that failure as reversible error.

A party “ ‘ “cannot by his own voluntary conduct invite error and then seek to profit thereby.” ’ ” Slaton v. State, 680 So.2d 879, 892 (Ala.Crim.App.1995) (quoting Collins v. State, 385 So.2d 993, 1002 (Ala.Crim.App.1979), rev’d on other grounds, 385 So.2d 1005 (Ala.1980)); and Phillips v. State, 527 So.2d 154 (Ala.1988). As a result, we cannot reverse the trial court’s judgment on this basis. Additionally, the husband has not challenged any other aspect of that judgment. We, therefore, find no reversible error in the trial court’s judgment allowing the wife to relocate with the children.

2120047 — APPEAL DISMISSED.

2120303 — AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ., concur.

      . This court has consolidated the appeals ex mero motu.

      . On August 3, 2012, the wife’s PFA action was transferred to the trial court and consolidated with the divorce action.

      . The parties were sworn in at that hearing, but they did not testify; the parties’ lawyers, however, stipulated to some of the evidence that would have been presented had the parties taken the witness stand.