text:
    Robert Edgar ATKINSON, Jr., Appellant v. Betty Richardson ATKINSON, Appellee.
    No. 2007-CA-01965-COA.
    Court of Appeals of Mississippi.
    June 2, 2009.

      Carolyn Buttles Mills, Jerry L. Mills, Ridgeland, attorneys for appellant.
    M. Judith Barnett, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. The Hinds County Chancery Court granted Bettye Richardson Atkinson a divorce from Robert Edgar Atkinson Jr. on the ground of adultery. Additionally, the chancellor divided the marital estate and granted Bettye, inter alia, exclusive use, possession, title, and ownership of the marital home, together with the 32.5 acres of land upon which it is situated. Feeling aggrieved, Robert appeals and asserts: (1) that the chancellor erred in finding that Bettye proved the grounds of uncondoned adultery and cruel and inhuman treatment and (2) that the chancellor erred in awarding Bettye the marital home.

¶ 2. We find that the chancellor properly granted Bettye a divorce but not on the ground of adultery. We also find that the chancellor did not err in awarding the marital home to Bettye and that Bettye proved that she was entitled to a divorce on the ground of habitual cruel and inhuman treatment. Therefore, we modify the judgment to reflect that the divorce is granted on the ground of habitual cruel and inhuman treatment and affirm the judgment of divorce as modified.

FACTS

¶ 3. Robert and Bettye were married on May 24, 1975, and two children were born to this union: Melanie Aileen, born January 7, 1980, and Robert Kyle (Kyle), born January 2, 1983. The parties separated in September 2004, and Bettye moved out of the marital home the following month. In May 2005, Bettye filed a complaint for divorce on the ground of habitual cruel and inhuman treatment. She later amended her complaint to allege uncondoned adultery as an additional ground for divorce. Thereafter, a petition for emergency relief was filed, and a hearing was held on August 4, 2005. Following the conclusion of the hearing, the chancellor issued a temporary order granting Bettye exclusive use and possession of the marital home and of the surrounding land. The chancellor also ordered Robert to surrender his keys to the marital home.

¶ 4. The case went to trial on January 29, 2007. The chancellor heard testimony from Bettye, Robert, Melanie, and Patricia Hughes, one of Bettye’s sisters. Bettye testified that her marriage to Robert had been rocky for many years and that she often endured cruel treatment from Robert who suffers from bipolar disorder. Bettye related incidents of abuse that began early in their marriage and continued throughout the course of the marriage. Bettye testified that she remains puzzled as to the cause of some of the incidents of abuse.

¶ 5. Bettye recalled an incident that occurred during her pregnancy with her daughter, Melanie. According to Bettye, she and Robert were in their car in the driveway of their home when Robert started choking her. Bettye testified that she did not recall what precipitated the incident and that, at that time, she could not understand why it had occurred.

¶ 6. Bettye also recalled an incident that occurred when Melanie was in the second grade. She stated that Melanie had asked Robert to assist her with a science fair project two weeks before it was due. Bettye testified that Robert assured Melanie that he would help her. However, according to Melanie, Robert waited until the day before the project was due to offer his assistance. Bettye testified that while Melanie and Robert were working on the project, Melanie became sleepy, causing Bettye to mention several times that Melanie needed to go to bed. According to Bettye, at that point, Robert put a knife to her breast and pushed it into her flesh. Bettye testified that she did not move out of fear that Robert would hurt her, even though she did not call the police.

¶ 7. Bettye also testified about an incident that occurred around 1996 that involved her and her son, Kyle. Bettye stated that she and Kyle undertook a project to extend the carport at the house and that, one night while they were working, Robert came out of the house, shined a light on them, and began cursing at them. Bettye testified that she did not understand why Robert became angry.

¶ 8. Further, Bettye recalled an incident that occurred shortly after the carport incident. She testified that she and the children were raking pine needles into piles in their backyard and that Robert set the piles on fire and then left and went inside the house. Bettye further testified that the fire got out of control and started moving in the direction of an old car that was parked in their backyard. Bettye stated that as she and the children worked frantically to extinguish the fire, Robert came back outside and became angry when it appeared as though the fire was going to reach the car. Bettye testified that Robert then grabbed a rake, broke it in half, and acted as if he were going to hit her with it. Bettye recalled that Kyle jumped in between her and Robert and that he told Robert that he would kill him if he hit Bettye.

¶ 9. Bettye also stated that in either 1997 or 1998, she fled to her sister’s house after Robert became upset about something (she did not say what). Bettye testified that Robert left the house and returned drunk.

¶ 10. Bettye testified about an incident that occurred in September 2004. According to Bettye, their mobile home was burglarized, and during the burglary, clothes were strewn around their bedroom. Bettye stated that their bedroom was still in disarray about two days later, and as a result, Robert became angry and began cursing at her. Bettye further stated that Robert informed her that he wanted a divorce. Bettye recalled that during this altercation, Robert grabbed her, threatened to physically throw her out of the mobile home, and threatened to rape her. Specifically, Bettye stated that Robert dragged her into their bedroom and tore her clothes off. However, Bettye stated that Robert’s threat did not materialize. According to Bettye, Robert later apologized. Bettye offered pictures at trial that, according to her, depict bruises from this incident.

¶ 11. In 1987, Bettye’s mother deeded her and her sisters 110 acres of land and an old home. Around 1998, the land was divided, and Bettye’s sisters added their husbands’ names to their deeds. Bettye stated that she decided against adding Robert’s name to her deed at that time because they were experiencing marital problems and because the land had been in her family well over one hundred years. Bettye also stated that Robert refused to spend any money on the property until his name was added to the deed. Therefore, despite her initial reluctance, Bettye added Robert’s name to the deed in 1998.

¶ 12. Bettye testified that in either late 2002 or early 2003, she and Robert purchased a mobile home for $80,000 and placed it on the 32.5 acres of land. According to Bettye, they moved into the mobile home and lived there for a year and one month before they separated.

¶ 13. Melanie also testified and painted a picture of what life was like growing up in the Atkinson household. According to Melanie, during the course of her childhood, her father routinely exhibited behavior that she characterized as threatening. She testified that, as a child, she was often fearful of her father and recalled that she, her mother, and her brother constantly felt as though they had to walk on eggshells. Melanie stated that her father was very mean to her mother, who, she stated, was always ready, willing, and able to do what was necessary to keep peace in their household. Further, Melanie characterized her father’s love as conditional. She explained that he acted as though he loved her when she did things his way, but she stated that when she did not, she “just kind of got left behind.” Melanie testified that a major point of contention in her parent’s marriage involved the land that was deeded to her mother and the fact that her mother did not initially add her father’s name to the deed.

¶ 14. Patricia testified that she has known Robert for many years and described his and Bettye’s relationship as volatile. According to Patricia, Robert would belittle Bettye “every opportunity he would get, ... whether he was in a room full of people or just one person.... ” She further stated, “I don’t know what happened [when they were] alone, you know, obviously, but he just made it very uncomfortable for anyone to be around them together.”

¶ 15. Robert also testified during the divorce proceedings and admitted that he lives with a female friend and her sister and that he suffers from bipolar disorder, which he manages by taking nine-hundred milligrams of lithium per day. However, Robert denied inflicting the bruises upon Bettye that are reflected in the photographs that were introduced during the trial. He also stated that, although it bothered him that Bettye did not add his name to the deed when her sisters added their husbands’ names, he did not coerce Bettye into adding his name to the deed. Robert stated that he merely informed Bettye that he would not perform any work on the property as long as his name was not on the deed. Robert recalled that thereafter, on his birthday, Bettye presented him with a deed that had his name listed on it. Robert testified that he and Bettye spent between $100,000 and $140,000 in marital funds on improvements to the property, including installation of a water treatment system.

ANALYSIS AND DISCUSSION , OF THE ISSUES

¶ 16. “In domestic relations cases the scope of review is limited by the substantial evidence/manifest error rule.” Hensarling v. Hensarling, 824 So.2d 583, 586(¶ 7) (Miss.2002) (citing Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995)). An appellate court will reverse a chancellor’s finding of fact only in cases where the record lacks substantial evidence to support a finding. Id. (citing Henderson v. Henderson, 757 So.2d 285, 289(¶ 19) (Miss.2000)). The Hensarling court also held that “[an appellate court’s] scope of review in domestic relations matters is limited under the familiar rule that [an appellate court] will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.” Id. (quoting Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994)). -

¶ 17. Robert contends that Bettye did not prove that she is entitled to a divorce on the ground of either adultery or cruel and inhuman treatment. In his “Opinion of the Court,” the chancellor states that “[i]n his own testimony at trial, [Robert] acknowledged that he had moved from the marital domicile in 2004 and set up house-keeping with his paramour in Clinton. On [Robert’s] own admission of adultery, the Court finds that Bettye is entitled to a divorce on the ground of uncondoned adultery.”

¶ 18. Our review of the record leads us to conclude that the chancellor mischarac-terized Robert’s testimony. ' On this point, the trial transcript contains the following exchange between Robert and Bettye’s attorney:

Q. Okay. Where do you currently reside?
A. I reside at 108 Maudedith Lane in Clinton, Mississippi.
Q. Who lives there with you?

[ATTORNEY FOR DEFENDANT]:

Objection. Relevancy.
THE COURT: Overruled.
A. I live there with some friends.
Q. Who are they?
A. Linda Roby and Nicole Roby.
Q. Okay. And Linda Roby is your current girlfriend. Is that correct?
A. Linda Roby is a friend that I live with because my house was uprooted out from under me and I had no place to stay.
Q. Have you ever had sex with her?

[ATTORNEY FOR DEFENDANT]:

Objection. Relevancy.

[ATTORNEY FOR PLAINTIFF]:

Your Honor, he’s circumventing my questions.

¶ 19. As evidenced by the colloquy, Robert’s attorney objected before Robert could answer the question of whether he had ever had sexual intercourse with Linda. Furthermore, we have scoured the record and have not found any other point in the hearing where adultery was discussed. We recognize that Robert’s admission that he lived with another woman could lead one to presume that the two were involved in a sexual relationship. However, simply because Robert lived ■with a person of the opposite sex does not prove by clear and convincing evidence that he committed adultery, especially when there was no testimony about their sleeping arrangements. It is also significant that Linda’s sister resided in the home with Robert and Linda.

¶ 20. The Mississippi Supreme Court has held that “[a] charge of adultery may be grounds for divorce upon a showing of either an infatuation for a particular person of the opposite sex or a generally adulterous nature on the part of the defendant.” Holden v. Frasher-Holden, 680 So.2d 795, 798 (Miss.1996) (quoting McAdory v. McAdory, 608 So.2d 695, 700 (Miss.1992)). The Holden court also held that “[t]here must be evidence of one or the other before a divorce may be granted on these grounds.” Id. Further, it is well established in Mississippi that a person “seeking a divorce on the grounds of adulterous activity must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination.” Id. (quoting Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986)).

¶ 21. Although we acknowledge that the opportunity for Robert to commit adultery may have existed, the record is devoid of any evidence regarding inclination or an infatuation with Linda, as the quoted passage is the only evidence which sheds any light on Robert’s relationship with Linda. Thus, we conclude that because the record does not support the chancellor’s finding that Robert admitted to having had a sexual relationship with Linda, substantial evidence does not exist to support his finding that Robert committed adultery, thereby entitling Bettye to divorce on this ground.

¶ 22. Nevertheless, we conclude that substantial evidence does exist to support a finding that Bettye is entitled to a divorce on the ground of habitual cruel and inhuman treatment. On this point, we note the following finding by the chancellor:

On [Robert’s] own admission of adultery, the Court finds that Bettye is entitled to a divorce on the ground of uncondoned adultery. The Court would be remiss if it did not also find, for other purposes, that Bettye amply proved her entitlement to a divorce on the ground of habitual cruel and inhuman treatment. ...

Therefore, it is clear to us that the chancellor found that Betty was also entitled to a divorce on the ground of habitual cruel and inhuman treatment, even though the judgment of divorce granted the divorce on the ground of adultery only. Consequently, we affirm the chancellor’s grant of divorce but on the ground of habitual cruel and inhuman treatment, as “[an appellate court] will generally affirm, even if it finds that the lower court has employed erroneous legal reasoning, provided only that the correct result has been achieved below.” Gates v. Gates, 616 So.2d 888, 890 (Miss.1993) (quoting DeFoe v. Great S. Nat’l Bank, N.A., 547 So.2d 786, 788 (Miss.1989)).

¶ 28. Robert also argues that the chancellor erred in awarding Bettye the marital home. The chancellor made the following finding as it relates to the marital home:

[A] good portion of the marital estate exists as a result of Bettye’s inheritance of land. That property was converted to a marital estate by Bettye when she titled it to herself and [Robert], although it seems clear through the testimony that this prior distribution to him was not entirely voluntary. Both Melanie, the parties!’] daughter, and Patricia Hughes testified that Bob browbeat Bettye for years until she finally relented and put his name on the title, as Patricia said, “to keep peace in the family.”

(Footnote added). The chancellor also found that “Bettye clearly has a far greater emotional attachment to the land, and thus the mobile home on the land, than does [Robert].”

¶ 24. Robert argues that despite the fact that the property was deeded to Bettye from her parents, the chancellor should have considered his equally strong attachment to the property. Robert contends that this is reflected by his and Bettye spending a little over one-hundred thousand dollars in marital funds on the property and by the work that he performed on the property to get it to a more usable condition. There is nothing in the record which leads us to conclude that the chancellor’s decision, as it relates to the marital home, is not supported by substantial evidence. Further, the chancellor heard testimony and thoroughly considered the Ferguson factors before dividing the marital estate. Accordingly, we find no merit to this issue.

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

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

      . Bettye also stated that there was a ten-year period of time that Robert stopped drinking, but she stated that the abuse continued.

      . Robert’s attorney pointed out on cross-examination that the pictures were dated September 15, 2005, and that during that time, Bettye and Robert were separated. Bettye responded that, while preparing for trial, she had written the wrong year on the pictures and that the incident occurred on September 15, 2004, rather than on September 15, 2005.

      . This is the same mobile home that we referenced in paragraph ten.

      . Robert also stated that he spent $20,000, in nonmarital funds, on improvements to the marital property.

      . The Mississippi Supreme Court has held that:
      habitual cruel and inhuman treatment [can] be established only by a continuing course of conduct on the part of the offending spouse which [is] so unkind, unfeeling or brutal as to endanger or put one in reasonable apprehension of danger to life, limb or health, and further, that such course of conduct must be habitual, that is, done so often, or continued so long that it may be reasonably said [to be] a permanent condition.

        Talbert v. Talbert, 759 So.2d 1105, 1108(¶ 8) (Miss.1999) (quoting Potts v. Potts, 700 So.2d 321, 323(¶ 11) (Miss.1997)). Further, the Tal-bert court held that there must be "more than mere unkindness or rudeness, or incompatibility or want of affection to support a finding of cruel and inhuman treatment." Id. (citing Churchill v. Churchill, 467 So.2d 948, 951 (Miss.1985)).
      Based on Bettye's testimony of the events that have transpired throughout the course of their marriage, we conclude that Bettye proved that Robert's behavior was habitually cruel and inhuman.

      . As previously noted, Bettye did not inherit the land; rather, it was deeded to her by her parents.

      . In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the Mississippi Supreme Court announced factors that chancellors should consider when dividing marital estates.


source: Caselaw Access Project

author: MYERS, P.J., ROBERTS, J.,

license: Public Domain

text:
    Joy Lynn PEARSON, Appellant v. Steven Allen PEARSON, Appellee.
    No. 2007-CA-01991-COA.
    Court of Appeals of Mississippi.
    June 9, 2009.

      Eduardo Alberto Flechas, Jackson, attorney for appellant.
    Wayne Smith, Liberty, attorney for ap-pellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Joy Pearson appeals the Pike County Chancery Court’s modification of child custody. The trial court modified the minor child’s custody from joint legal and physical custody to joint legal custody with sole physical custody awarded Joy’s ex-husband, Steven Pearson. Joy appeals arguing that: (1) the trial court erred in finding a material change in circumstances, and (2) the trial court erred in its Albright analysis. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Steven and Joy Pearson were married on June 6,1998. Both parties worked as pharmacists at the Southwest Mississippi Regional Medical Center in Pike County. During their marriage, the couple had one daughter, McKenna Claire. She was born on December 2, 2002. The couple remained together in Pike County, Mississippi until on or about January 6, 2006, at which time they separated. The two filed for divorce based on irreconcilable differences, which was finalized by the Pike County Chancery Court on August 9, 2006. As part of the divorce, Steven and Joy executed a child custody and property settlement agreement. The child custody agreement provided that the couple would have joint legal and physical custody. Both parties remained in Pike County during this time.

¶ 3. On or about August 24, 2006, Joy notified Steven that she was considering moving away from Pike County. Prior to the divorce, Joy had contacted a job recruiter about finding new employment. Joy was subsequently hired at St. Dominic’s Hospital in Jackson, Mississippi and moved to Brandon, Mississippi on or about October 23, 2006.

¶ 4. After Joy moved to Brandon, the couple continued to adhere to the joint custody arrangement, even though the parents were approximately eighty miles apart. This resulted in McKenna Claire spending three nights with one parent, and the remaining four nights with the other parent. The parties alternated this schedule weekly, so the parents would theoretically have equal time with McKenna Claire. The couple continued the three/ four schedule until December 2006. At that time, the couple changed the schedule to a week-to-week arrangement, with each parent getting McKenna Claire for a full week at a time.

¶ 5. Upon Joy notifying Steven about her intentions to move away from Pike County, Steven filed for a modification of the child custody agreement on October 9, 2006. He claimed that Joy’s move constituted a material change in circumstances necessitating a modification in custody. Joy responded to Steven’s petition for modification with her own counterclaim for modification. The Pike County Chancery Court conducted a full hearing on the petitions. At the conclusion of the hearing, the chancellor found that Joy’s move away from Pike County was a material change in circumstances. The chancellor then conducted an on-the-record analysis of the Albright factors. She concluded the hearing by retaining the joint legal custody but granting Steven sole physical custody of McKenna Claire. Aggrieved, Joy appeals the chancellor’s ruling.

STANDARD OF REVIEW

¶ 6. “[I]n custody cases, we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong or clearly erroneous, or an erroneous legal standard was employed.” Hensarling v. Hensarling, 824 So.2d 583, 587(¶ 8) (Miss.2002).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN FINDING A MATERIAL CHANGE IN CIRCUMSTANCES.

¶ 7. “[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child.” Johnson v. Gray, 859 So.2d 1006, 1013(¶ 33) (Miss.2003) (citations and internal quotations omitted). However, modification issues are different from original custody determinations:

[We have] emphasized that the request for modification does not simply mean a re-weighing of the Albright factors to see who now is better suited to have custody of the child ... there must be shown ... a material change[,] not just a change in circumstances, that has had an adverse affect [sic] on the child and which requires, or mandates, a change in custody for the best interests of the child.

Beasley v. Beasley, 913 So.2d 358, 361(¶ 8) (Miss.Ct.App.2005) (citation and internal quotation omitted). In order to succeed on a complaint for modification, “the noncustodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003).

¶ 8. Joy contends the chancellor erred when she found that the move to Brandon was a material change in circumstances. She distinguishes the current factual scenario from other circumstances where the appellate courts have found that a move was a material change in circumstances. See Lackey v. Fuller, 755 So.2d 1083 (Miss.2000) (mother moving from Mississippi to New York); Sobieske v. Preslar, 755 So.2d 410 (Miss.2000) (mother moving from Mississippi to Georgia); and McRee v. McRee, 723 So.2d 1217 (Miss.Ct.App.1998) (mother was getting remarried and moving from Mississippi to Texas). Joy argues her move from Pike County to Brandon, approximately eighty miles, is less severe than these cases where one parent moved out of state.

¶ 9. In addition to one parent moving out of state, this Court has found that a short move can also result in a material change in circumstances. See Rinehart v. Barnes, 819 So.2d 564 (Miss.Ct.App.2002) (father moved from DeSoto County, Mississippi to Cordova, Tennessee); Massey v. Huggins, 799 So.2d 902 (Miss.Ct.App.2001) (couple resided in Laurel, Mississippi during the marriage; mother moved to south Forrest County, Mississippi then to Petal, Mississippi; father moved to Natchez, Mississippi, then to Long Beach, Mississippi).

¶ 10. The distance of the move is not dispositive as to whether a material change in circumstances has occurred; it is the effect the move has on the child and the custody arrangement that is disposi-tive. In each of the above cases, the chancellor or appellate court found that the move by one parent caused the custody arrangement to become impractical or impossible to maintain. In many instances, the parents shared joint legal and physical custody of the child prior to one of the parents moving. After one parent relocated, the custody arrangement became too difficult on the child and the parents to uphold.

¶ 11. In the instant case, Joy’s move from Pike County to Brandon caused the custody arrangement to become impractical and difficult to maintain. Regardless of the schedule created by Joy and Steven, it was going to be taxing on both of them to adhere to it. They would be continuously driving back and forth between Pike County and Brandon to meet the requirements of the custody schedule. More importantly, the constant changing of hands would be difficult on McKenna Claire. She would constantly be switching between Brandon and Pike County. McKen-na Claire would not feel like one place is home as she would only be there for a week at a time. She would never be solidified in one community. For example, both parents testified that McKenna Claire was taking dance lessons in McComb. If the parents would have continued the week-to-week schedule, this would result in McKenna Claire being in dance for one week and not returning for two weeks. This would apply to any extracurricular activities McKenna Claire participated in, whether in Brandon or Pike County.

¶ 12. Even more supportive of the chancellor’s finding of a material change in circumstances is McKenna Claire’s age. At the time of the modification hearings, McKenna Claire was four and a half years old. There was much testimony about where McKenna Claire would go to school, in Jackson or in McComb. Naturally, each parent wanted McKenna Claire to go to school in their respective locations. However, it would be impossible for McKenna Claire to maintain the week-to-week schedule once she started school. She would not be able to go to school in Jackson one week and in McComb the next. The supreme court has recognized this problem by affirming a chancellor’s ruling that “the advent of school age was a material change in circumstances that rendered the split custody of the child useless and even harmful to the child.” Torrence v. Moore, 455 So.2d 778, 780 (Miss.1984). Accordingly, McKenna Claire beginning school, by itself, can be deemed to be a material change in circumstances.

¶ 13. We find that the combination of the lack of stability caused by McKenna Claire being shuffled back and forth between Brandon and Pike County each week and McKenna Claire’s beginning school is supportive of the chancellor’s finding that a material change in circumstances had occurred. Accordingly, this issue is meritless.

II. WHETHER THE CHANCELLOR ERRED IN APPLYING THE ALBRIGHT FACTORS.

¶ 14. Upon a finding of a material change in circumstances, a court is to apply the Albright factors to determine which parent should have primary custody. McRee, 723 So.2d at 1220(¶ 11). The Al-bright factors used to determine what is in the best interest of the child in regard to custody are: (1) age, health, and sex of the child; (2) a determination of the parent that had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the 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) the stability of 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). Joy argues the chancellor erred in her assessment of the age, health, and sex of the child and the mental health of the parents factors. We will address each contention in detail.

A. Age, Health, and Sex of the Child

¶ 15. Joy argues the chancellor erred by not making any specific findings of fact regarding McKenna Claire’s age. This Court has reversed and remanded a modification where the chancellor has failed to analyze and make proper findings for each Albright factor. See Lowery v. Mardis, 867 So.2d 1053, 1057(¶ 18) (Miss.Ct.App.2004); see also Sturgis v. Sturgis, 792 So.2d 1020, 1025(¶22) (Miss.Ct.App.2001).

¶ 16. Under the first Albright factor, the chancellor must consider the age, health, and sex of the child. In her findings under the first Albright factor, the chancellor stated the following:

The court should address the health and sex of the child to see if either party should have preference. Normally — I mean, your child’s health is great and there’s no — -that doesn’t weigh to either side. Normally the sex of the child, you know, there’s a preference that a female child should be with her mother so that the mother can instruct her in the aging process of young girls, puberty, dating, all the things that Ms. Pearson said. But, quite frankly, each of you have acknowledged less than a year ago that that’s not an issue. You think that whereas most of the time little girls should be with their moms, this mom has said this dad is capable of fulfilling those nurturing needs for this little girl. And therefore I’m not going to score in either of your favor.

This Court has affirmed an Albright analysis where the chancellor failed to label each Albright factor. See Turner v. Turner, 824 So.2d 652, 655 (¶¶ 8-9), 656(¶ 14) (Miss.Ct.App.2002). In Turner, the appellant claimed the chancellor erred by failing to consider the parenting skills factor. Id. at 655(¶ 9). On appeal, this Court found evidence in the chancellor’s analysis and detailed findings that he did consider the parenting skills of each party in his ruling, even though he did not label the findings as parenting skills. Id. This Court stated “[w]hat the chancellor may have labeled the Albright factors is irrelevant” as there was supporting evidence corresponding to each factor. Id.

¶ 17. It is obvious- that the chancellor was considering McKenna Claire’s age and the tender years doctrine in her findings. Both parties correctly state in their briefs that the tender years doctrine, the presumption a child should be with their mother, has been eroded recently. See Mississippi Code Annotated section 93-5-24(7) (Rev.2004). It is inarguable that the chancellor considered the tender years doctrine during the analysis of the age of McKenna Claire. Although the chancellor did not label the age factor, she considered McKenna Claire’s age when discussing her gender. As in Turner, there is evidence in this chancellor’s ruling corresponding to the age factor. Turner, 824 So.2d at 655(¶ 9).

¶ 18. Additionally, Joy filed a motion for reconsideration alleging that the trial court misapplied the law and facts in its decision and that the trial court erred by placing too much weight on certain facts, substantively arguing the same two issues as on appeal. The chancellor held a hearing on the motion and clearly addressed McKenna Claire’s age in her ruling.

¶ 19. Thus, Joy’s argument that the chancellor failed to consider and make a finding on the age factor is without merit.

B. Physical and Mental Health and Age of the Parents

¶ 20. In her original ruling on the modification and on the motion for reconsideration, the chancellor found that the mental health factor weighed in favor of Steven. Joy argues that this was error. Joy claims that the chancellor awarded Steven this factor as punishment for the chancellor’s belief that Joy entered into the original custody agreement knowing she was going to move in the near future. Joy also argues that the evidence relied on by the chancellor is not supported by the record. In the alternative, Joy contends that the evidence relied upon in the modification hearing occurred before the original custody agreement and, thus, is barred from consideration.

¶ 21. In her rulings, the chancellor found that Joy’s mental health had affected her decision-making abilities. There was testimony by Joy’s mother and her sister to support the chancellor’s ruling. They both testified that Joy was quiet and “dull” at a family birthday party shortly before the modification hearing. This behavior was a continuation of Joy’s demean- or and mental health prior to the original custody agreement. During the modification hearing, Joy’s mother testified that Joy went through a stage where she could not take care of herself. She also stated that Joy has not been herself for a long time. This assessment was corroborated by Joy’s sister, who testified that Joy has not been herself in the past one-and-a-half years. She even stated that Joy has not taken motherly responsibilities seriously regarding McKenna Claire. Steven’s attorney also elicited testimony from Joy that put her mental health into question. Joy testified that she is currently seeing a psychiatrist and taking medication for depression, a bi-polar disorder, and anxiety. These medications are also being taken to stabilize her mood swings. No testimony was given calling Steven’s mental health in question.

¶ 22. Given these facts, the chancellor did not err in finding that the mental health factor favored Steven. Accordingly, this argument is without merit.

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

KING, C.J., LEE, P.J., IRVING, BARNES, ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

ROBERTS, J.,

Concurring in Part and in the Result:

¶ 24. I write separately to express my reasoning for concurring in part and in result only with issue one. I am compelled to emphasize that, not only was there no error on the chancellor’s part when Joy and Steven Pearson’s child custody agreement was modified, it was not necessary for the chancellor to determine either if a material change in circumstances existed or if there was an adverse effect on the child. Mississippi Code Annotated section 93-5-24(2), (3), (4) and (6) (Rev.2004) provides the guidelines for awarding joint physical and legal custody of children. Subsection (6) specifically provides, “[a]ny order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” Miss.Code Ann. § 93-5-24(6) (emphasis added).

¶ 25. As noted by the majority, Steven and Joy were granted an irreconcilable differences divorce, and the two executed a child custody and property settlement agreement that provided for joint legal and physical custody of their daughter. The chancellor incorporated that agreement into the divorce decree. The result of Steven’s petition for modification of the agreement, in which he sought sole physical custody, and Joy’s counterclaim for sole physical custody, was that they both were petitioning the court for modification or termination of the joint custody agreement.

¶ 26. Therefore, according to the plain language of section 93-5-24(6), the chancellor was neither required to evaluate whether there had been a material change of circumstances nor whether there was any adverse effect on the child. Just as parents can agree to joint physical custody, they may seek to have the joint custody agreement modified without showing a material change in circumstances. An evaluation of a material change becomes necessary when only one parent is seeking to modify a joint custody judgment. It was irrelevant that Joy did not specifically state in her counterclaim that she was seeking “a modification.” The net effect of her counterclaim was that she was indeed seeking a modification of the agreement: she asked for sole physical custody of her daughter. Therefore, the chancellor was not obligated to evaluate whether there had been a material change. Based on the parties’ petitions, I find that the chancellor could have simply applied the Albright factors and determined which parent was better suited to obtain sole custody of the child.

GRIFFIS, J., JOINS THIS OPINION.

      . We do not agree with the separate opinion's interpretation of Mississippi Code Annotated section 93-5-24(6) (Rev.2004). To date, there has been no Mississippi case law to support such an application. Additionally, we do not arrive at the same conclusion upon our reading of Mississippi Code Annotated section 93-5-24(6). Under Mississippi Code Annotated section 93-5-24(6), a joint custody agreement may be modified upon the petition of both parents, or upon one parent showing a material change in circumstances. In the present case, a joint petition for modification was not filed; each parent submitted their own petition alleging a material change in circumstances. They were not submitting to the court a petition for the chancellor to decide which parents would receive custody as the first provision of Mississippi Code Annotated section 93-5-24(6) would allow, they were submitting petitions for the court to determine whether a material change in circumstances has occurred. If both Joy and Steven lost their respective motions, the joint custody agreement would have been retained. We do not think this is how Mississippi Code Annotated section 93-5-24(6) is to be applied.
      Moreover, the effect of such an interpretation would have unwarranted results. Judge Roberts’s interpretation would allow the parties, not the chancellor, to determine whether there had been a material change in circumstances and whether that material change had an adverse effect of the child. What a lay person perceives to be a material change in circumstances and an adverse effect does not mean that it is such in the legal sense. The separate opinion's interpretation of the statute takes away from the chancellor the role of determining whether a material change in circumstances occurred and whether it had an adverse effect on the child, and places that duty in the hands of lawyers and lay persons. We do not believe (he Legislature intended for such a result.

      . We will not address the remaining Albright factors as these are the only factors raised by Joy on appeal.


author: GRIFFIS, J.,

text:
    Eric L. OWENS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-00036-COA.
    Court of Appeals of Mississippi.
    June 9, 2009.

      Eric L. Owens, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J, GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Eric L. Owens’s pro se motion for post-conviction collateral relief was dismissed as time-barred by the Circuit Court of Lee County. Owens now appeals the dismissal of his motion and argues the following assignments of error: (1) his sentence is illegal; (2) his indictment was improper; (3) he received ineffective assistance of counsel at trial; and (4) he should be granted relief based on the cumulative errors committed by the circuit court. We find that this Court is without jurisdiction to decide Owens’s appeal; thus, the appeal is dismissed.

FACTS

¶ 2. Owens was indicted on one count of the sale and transfer of cocaine pursuant to Mississippi Code Annotated section 41-29 — 139(a)(1) (Rev.2005). A jury found Owens guilty of the crime charged, and Owens was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with ten years suspended and five years of post-release supervision.

¶ 3. Owens appealed his conviction to this Court. The conviction was affirmed on January 6, 2004. Owens v. State, 869 So.2d 1047 (Miss.Ct.App.2004). He filed a petition for rehearing, which was denied on April 6, 2004. The time for filing a writ of certiorari to the supreme court passed with no action taken by Owens; thus, the mandate in his direct appeal was issued on April 27, 2004.

¶ 4. Owens filed his motion for post-conviction collateral relief on May 8, 2007. Having been filed more than three years after the ruling on Owens’s direct appeal, the motion was dismissed by the circuit court as time-barred.

STANDARD OF REVIEW

¶ 5. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

Whether this Court has jurisdiction to decide Owens’s appeal from the circuit cowi’s dismissal of his motion for post-conviction collateral relief

¶ 6. The Mississippi Uniform Post-Conviction Collateral Relief Act requires that when a conviction and sentence have been affirmed on direct appeal, a defendant must seek permission from the supreme court before filing a motion for post-conviction collateral relief in the circuit court. Miss.Code Ann. § 99-39-7 (Rev.2007). Our review of the record on appeal reveals that no such permission was obtained by Owens.

¶ 7. This Court has held that “[tjhis procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017(¶ 6) (Miss.Ct.App.2000). Because Owens was not granted permission to file by the supreme court, the circuit court did not have jurisdiction to hear his motion for post-conviction collateral relief. As such, this Court is also without jurisdiction to decide his appeal.

¶ 8. Accordingly, Owens’s appeal is dismissed for lack of jurisdiction.

¶ 9. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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


author: PER CURIAM. MURDOCK, Justice

text:
    ALABAMA DEPARTMENT OF CORRECTIONS and Richard Allen v. MONTGOMERY COUNTY COMMISSION.
    1051455.
    Supreme Court of Alabama.
    Dec. 12, 2008.

      Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Albert S. Butler, asst. gen. counsel and asst. atty. gen., Department of Corrections, and James W. Davis, asst. atty. gen., for appellants.
    Thomas T. Gallion III and Constance C. Walker of Haskell Slaughter Young & Gal-lion, L.L.C., Montgomery, for appellee.
   On Rehearing Ex Mero Motu

PER CURIAM.

The opinion of June 27, 2008, is withdrawn, and the following opinion is substituted therefor.

The Alabama Department of Corrections (“the DOC”) and Richard Allen, its commissioner, appeal from a summary judgment in favor of the Montgomery County Commission (“the Commission”) entered by the Montgomery Circuit Court. We dismiss the appeal, vacate the summary judgment, and dismiss the action.

I. Facts and Procedural History

This case arose out of a dispute between the Commission and the DOC over responsibility for the payment of medical expenses incurred in the treatment of Betti Jo Day while she was housed at the Montgomery County Detention Facility. On May 27, 2004, the Commission sued the DOC in the Montgomery Circuit Court. The one-count complaint sought a judgment declaring that Day’s “medical bills [were] the financial responsibility of the [DOC] pursuant to Ala.Code 1975, § 14-3-30(b).” On July 20, 2004, the DOC filed an answer in which it denied the material allegations of the complaint.

On November 18, 2005, the Commission filed a motion for a summary judgment in which it argued that, under Ala.Code 1975, § 14-3-30(b), the DOC was obligated to cover Day’s medical expenses, which, according to the Commission, totaled $127,032.93. The circuit court denied the motion. On March 2, 2006, the Commission filed an amended complaint in which it purported to add as a defendant Richard Allen, in his official capacity as commissioner of the DOC. The amended complaint sought an order from the court requiring Allen “to perform his legal duties” under § 14 — 3—30(b) and “to reimburse [the Commission] for its payment of [Day’s] medical bills that were the financial responsibility of’ the DOC.

The DOC filed a motion for a summary judgment on March 31, 2006. On May 11, 2006, the Commission filed a cross-motion for a summary judgment. On May 31, 2006, the circuit court granted the Commission’s motion and entered a summary judgment in its favor. The court declared that the expenses of Day’s medical care were the responsibility of the DOC and ordered Allen to ensure that DOC funds were used to reimburse the Commission the $127,032.93 the Commission had spent on Day’s medical care. The DOC and Allen appealed.

On June 27, 2008, this Court issued an opinion. After considering the arguments made by the parties at that time, we dismissed the appeal as to the DOC, stating that as to it the circuit court’s judgment was void. We affirmed the judgment against Allen. No application for rehearing was filed, and we issued a certificate of judgment on July 15, 2008. However, on September 18, 2008, pursuant to Supreme Court Internal Rule VI.J.3., see Ex parte James, 836 So.2d 813, 877 (Ala.2002) (Johnstone, J., dissenting), we recalled the certificate of judgment and placed the case on rehearing ex mero motu. In so doing, we directed the parties to “file simultaneous supplemental briefs addressing the issue whether the Montgomery Circuit Court had subject-matter jurisdiction to allow the amendment of the complaint to add [Allen] as a defendant,” with specific reference to Ex parte Alabama Department of Transportation (In re Good Hope Contracting Co. v. Alabama Department of Transportation), 978 So.2d 17 (Ala.2007) (hereinafter “Good Hope”). The parties have appropriately responded.

II. Discussion — Sovereign Immunity

Allen and the DOC now contend that the entire action, which was initially filed against the DOC only, was barred by the doctrine of sovereign immunity. Relying on Ala. Const.1901, § 14, and recent case-law, they argue that the initial complaint did not confer subject-matter jurisdiction on the circuit court. They insist that such “lack of jurisdiction cannot be cured by amendment, and that a circuit court lacking subject-matter jurisdiction has no authority except to dismiss the complaint. Consequently, anything the circuit court did ..., including allowing the amendment to add Commissioner Allen as a defendant, [was] null and void.” Allen and DOC’s rehearing brief, at 4. We agree.

Section 14, Ala. Const.1901, provides: “[T]he State of Alabama shall never be made a defendant in any court of law or equity.” (Emphasis added.) “The wall of immunity erected by § 14 is nearly impregnable.” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). Indeed, as regards the State of Alabama and its agencies, the wall is absolutely impregnable. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (“Section 14 affords absolute immunity to both the State and State agencies.”); Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102 (Ala.2008) (same); Atkinson v. State, 986 So.2d 408, 410-11 (Ala.2007) (same); Good Hope (same); Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1268 (Ala.2000) (same); Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992) (same). “Absolute immunity” means just that — the State and its agencies are not subject to suit under any theory.

“This immunity may not be waived.” Patterson, 835 So.2d at 142. Sovereign immunity is, therefore, not an affirmative defense, but a “jurisdictional bar.” Ex parte Alabama Dep’t of Transp., 985 So.2d 892, 894 (Ala.2007). The jurisdictional bar of § 14 simply “precludes] a court from exercising subject-matter jurisdiction” over the State or a State agency. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003). Thus, a complaint filed solely against the State or one of its agencies is a nullity and is void ab initio. Ex parte Alabama, Dep’t of Transp. (In re Russell Petroleum, Inc. v. Alabama Dep’t of Transp.), 6 So.3d 1126 (Ala.2008) (hereinafter “Russell”). Any action taken by a court without subject-matter jurisdiction — other than dismissing the action — is void. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999).

Russell, like this case, began with a complaint filed solely against a State agency, namely, the Alabama Department of Transportation (“ADOT”). Specifically, the complaint was filed on September 30, 2005.

“On November 18, 2005, ADOT moved to dismiss on the ground that the action [was] barred by [§ 14] .... Subsequently, Russell filed a motion seeking to ‘substitute (or add) D.J. Mclnnes, as Director of [ADOT] as the Defendant in this case [ (“the director”) ], to dismiss [ADOT] as a Defendant, and to permit this litigation to proceed accordingly.’ It also filed an amended complaint styled ‘Russell Petroleum, Inc. v. Alabama Department of Transportation; and D.J. Mclnnes, as Director of the Alabama Department of Transportation.’ The claims in the amended complaint were in three counts. Count one sought a judgment declaring that the director had taken Russell’s property without just compensation. Count two sought a writ of mandamus compelling the director to compensate Russell for the alleged taking. Count three sought ‘an award of money that [would] justly compensate [Russell] for the inverse condemnation and taking of its property.’
“On November 30, 2007, ADOT and the director filed a joint motion to dismiss the case, arguing that, based on the authority of [Good Hope ], the court did not have subject-matter jurisdiction over them. In their brief in support of that motion, ADOT and the director argued that the amended complaint was a nullity and that the court had no alternative but to dismiss the action. This was so, because, they argued, the original complaint failed to invoke the subject-matter jurisdiction of the trial court, having named only ADOT, which is absolutely immune from suit, and the amended complaint, which purported to amend an action that was void ab initio, was a nullity; therefore, no jurisdiction attached as a result of the purported amendment. The trial court denied the motion to dismiss, and [ADOT’s mandamus] petition followed.”

Russell, 6 So.3d at 1126-27.

This Court granted ADOT’s petition and issued the writ of mandamus, saying: “[W]e hold that the trial court lacked subject-matter jurisdiction to entertain an amendment to the original complaint, which was filed solely against ADOT. Because the trial court does not have — and has never had — subject-matter jurisdiction over this action, it must be dismissed.” Russell, 6 So.3d at 1128 (emphasis added).

In so holding, we discussed and relied on Good Hope, stating:

“In Good Hope, Good Hope Contracting Company, Inc. (‘the Company’), sued ADOT seeking declaratory relief, damages for breach of contract, and a writ of mandamus directing ADOT to pay for services the Company had allegedly rendered to ADOT. Good Hope, 978 So.2d at 20. ADOT ‘moved the trial court to dismiss the complaint on the ground that [ADOT], as an agency of the State of Alabama, is entitled to sovereign immunity under § 14, Ala. Const. 1901.’ Good Hope, 978 So.2d at 20. When the trial court failed to rule on the motion, ADOT petitioned this Court for a writ of mandamus. Id. In its response to the petition, the Company asked this Court to direct the trial judge ‘to allow [the Company] to amend its complaint to add the proper party.’ 978 So.2d at 25 (emphasis added).”

Russell, 6 So.3d at 1127.

We then explained how, in Good Hope, we had “also refused to allow the Company to amend its complaint to add the proper party.” Russell, 6 So.3d at 1128. We stated:

“ ‘[ADOT] argued in its motion to dismiss that, as a State agency, it was not the proper party to be sued, and it pointed out that [the Company] had failed to name any State official as a party. [ADOT]’s supplemental submission and brief in support of motion to dismiss, tab 3 at 8.
“ ‘Further, in Ex parte Blankenship, 893 So.2d 303, 306-07 (Ala.2004), this Court held that, if a trial court lacks subject-matter jurisdiction, it has no power to take any action other than to dismiss the complaint. A trial court lacks subject-matter jurisdiction if the defendant is immune under the doctrine of sovereign immunity. Larkins [v. Department of Mental Health & Mental Retardation, 806 So.2d [358,] 364 (Ala.2001)] (“‘Article I, § 14, of the Alabama Constitution of 1901 thus removes subject-matter jurisdiction from the courts when an action is determined to be one against the State.’ ” (quoting [Alabama State Docks Terminal Ry. v.] Lyles, 797 So.2d [432,] 435 [ (Ala.2001) ])). Thus, this Court cannot order the trial court to allow Good Hope to amend its complaint because the trial court lacks subject-matter jurisdiction.’
“Good Hope, 978 So.2d at 26 (emphasis added). Accord Ex parte Alabama Dep’t of Transp., 990 So.2d 366 (Ala.2008).”

Russell, 6 So.3d at 1128.

Russell and Good Hope control this case. The Commission’s original complaint named only the DOC as a defendant. Because the DOC is a State agency, it is, under § 14, absolutely immune from suit. Because the original complaint named only a party that has absolute State immunity, it failed to trigger the subject-matter jurisdiction of the circuit court. Consequently, it was a nullity. The purported amendment of a nullity is also a nullity. See Porter v. Commonwealth, 276 Va. 203, 228, 661 S.E.2d 415, 427 (2008) (“A defect in subject matter jurisdiction cannot be cured by reissuance of process, passage of time, or pleading amendment.”). Because the circuit court never acquired subject-matter jurisdiction over this action, its orders and judgments are void, including the judgment that is the subject of this appeal.

The Commission attempts to distinguish this case from Good Hope. It concedes that both cases involved claims for declaratory relief, but it argues that Good Hope also included a breach-of-contract claim, while this case involves the construction of a statute. More specifically, according to the Commission, caselaw going back nearly 40 years supports the proposition that the prohibition of § 14 is subject to certain exceptions, such as “ ‘(1) [a]ctions brought to compel State officials to perform their legal duties[;].... (2) [a]etions brought to enjoin State officials from enforcing an unconstitutional law[;].... (3) [a]ctions to compel State officials to perform ministerial acts[;].... [and] (4) [a]ctions ... seeking construction of a statute ....’” Patterson v. Gladwin Corp., 835 So.2d at 142 (quoting Aland v. Graham, 287 Ala. 226, 229-30, 250 So.2d 677, 679 (1971)).

Recently, in Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 841 (Ala.2008), we acknowledged some lack of clarity in our caselaw. There, we said:

‘It is true that [some of our opinions have been] worded in such a way as to leave open the possibility that the exception[s] ... [are] not limited to actions against State officials. It is [our] conclusion, however, that [such cases] have not been careful in their articulation of [the exceptions] to sovereign immunity, particularly in light of the absolute immunity that it is now well established extends both to the State and to State agencies.’ ”

(Quoting Raley v. Main, 987 So.2d 569, 583 (Ala.2007) (Murdock, J., concurring in part and concurring in the result) (first emphasis added).)

However, careless language is never a justification for ignoring the clearly expressed mandate of the Constitution. It is well established that the State and its agencies have absolute immunity from suit, not simply immunity from certain claims. That is the plain meaning of § 14 (“the State of Alabama shall never be made a defendant in any court”). See also Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992) (“The State and its agencies have absolute immunity from suit in any court under [§ 14].”). Thus, the exceptions are relevant only as they relate to claims against State officials in their official capacities, not as they relate to the State agency or the State itself. For actions against the State or one of its agencies, there are no exceptions, and, for pleading purposes as explained above, the distinction is critical.

III. Conclusion

In conclusion, the Montgomery Circuit Court does not have — -and has never had — subject-matter jurisdiction over this action. Thus, its judgment is void, and it is hereby vacated, and this action is dismissed. Moreover, a void judgment will not support an appeal. Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 492 (Ala.2008). Therefore, this appeal is dismissed.

OPINION OF JUNE 27, 2008, WITHDRAWN; OPINION SUBSTITUTED; JUDGMENT VACATED; APPEAL DISMISSED; AND CASE DISMISSED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., and MURDOCK, J., dissent.

MURDOCK, Justice

(dissenting).

For the reasons explained in my special writings in Cadle Co. v. Shabani, 4 So.3d 460 (Ala.2008) (Murdock, J., dissenting), and Ex parte Alabama Department of Transportation, 6 So.3d 1126 (Ala.2008) (Murdock, J., dissenting), I respectfully dissent.

COBB, C.J., concurs.


author: BOLIN, Justice. COBB, Chief Justice

text:
    ALABAMA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES et al. v. EXXON MOBIL CORPORATION f/k/a Exxon Corporation.
    1070716.
    Supreme Court of Alabama.
    Dec. 12, 2008.

      Robert T. Cunningham, Jr., Richard T. Dorman, David G. Wirtes, Jr., and George M. Dent III of Cunningham Bounds LLC, Mobile; and Jere L. Beasley and J. Cole Portis of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellants.
    Samuel H. Franklin and M. Christian King of Lightfoot, Franklin & White, L.L.C., Birmingham; and David R. Boyd and W. Joseph McCorkle, Jr., of Balch & Bingham, LLP, Montgomery, for appellee.
   BOLIN, Justice.

This case has been before this Court on two prior occasions. See Exxon Corp. v. Department of Conservation & Natural Res., 859 So.2d 1096 (Ala.2002), and Exxon Mobil Corp. v. Alabama Dep’t of Conservation & Natural Res., 986 So.2d 1093 (Ala.2007), for a detailed statement of the history and factual background of the case.

In 1981 and again in 1984 Exxon Mobil Corporation, formerly known as Exxon Corporation (“Exxon”), leased sites in the Mobile Bay natural-gas fields from the State of Alabama. In addition to paying $578.3 million in nonrefundable bonuses to the State for the leases, Exxon agreed to pay royalties to the State based on the production from the wells it drilled in the leased areas of Mobile Bay. Following audits of the leaseholds by the Alabama Department of Conservation and Natural Resources (“DCNR”), the State agency responsible for overseeing the leases, a disagreement arose between the State and Exxon regarding the manner in which Exxon was calculating the royalties payable to the State under the leases. In a letter to Exxon dated February 4, 1997, DCNR stated that Exxon had paid to the State $102,915,386 in royalties for the period beginning October 1, 1993, through December 31, 1995, and that, according to DCNR’s calculations, Exxon owed the State an additional $50,495,418 in royalties. Exxon and DCNR continued to negotiate the correct interpretation of the royalty provisions of the leases, but no mutually agreeable settlement was reached.

On July 28, 1999, Exxon sued the State, seeking a judgment declaring the proper method of calculating royalties under the lease form pursuant to which Exxon leased the sites in Mobile Bay. The State asserted a counterclaim against Exxon, alleging breach of contract and fraud and claiming that Exxon had fraudulently underpaid royalties on the leases from October 1, 1993, the date production from the leased fields began. The State amended its counterclaim to assert a claim for punitive damages. Subsequently, the trial court realigned the parties naming the State as the plaintiff and Exxon as the defendant, and the case proceeded to trial.

On December 19, 2000, the jury returned a verdict for the State and awarded it $60,194,174 in additional royalties for the period between October 1, 1993, through December 1999, plus interest of $27,498,521, calculated at the statutory rate of 12%. On December 20, 2002, this Court reversed the judgment and remanded the case, holding that the trial court had impermissibly admitted into evidence a confidential letter written by Exxon’s in-house counsel. See Exxon Corp., 859 So.2d at 1108.

Following a trial after that remand, the jury returned a verdict in favor of the State and awarded it $63,769,568 in additional royalties for the period from October 1993 through December 2002. The jury found that, of that amount, $23,449,186 was the result of Exxon’s fraudulent suppression of information relating to royalty payments through February 1997. The jury also awarded the State $11.8 billion in punitive damages. Pursuant to § 9-17-33(d), Ala.Code 1975, the trial court, on November 19, 2003, added to the compensatory-damages award an additional $39,235,154, which represented statutory interest in the amount of 12%. The trial court entered a final judgment in favor of the State on that same date for the full verdict amount of $11,902,827,8o!.

On December 1, 2003, Exxon moved the trial court for a hearing to obtain guidance on how to compute future royalty payments, based on the jury’s verdict. On December 5, 2003, the trial court entered an order denying Exxon’s request for a hearing and directing Exxon to pay the royalties “according to the plain, unambiguous language of the leases as reflected in the jury’s verdict.” Exxon also moved the trial court for a postverdict judgment as a matter of law or, alternatively, for a new trial or a remittitur. Following a Hammond/Green Oil hearing, the trial court entered an order reducing the punitive-damages award to $3.5 billion and denying the motion for a judgment as a matter of law or a new trial.

The jury’s verdict for each of the claims asserted by the State was as follows:

1. Royalty due for unpaid volumes of gas: $15,570,921;
2. Royalty due for improper royalty rates: $12,075,343;
3. Royalty due on deductions taken: $28,112,819;
4. Royalty due on value of cogenerated electricity: $2,953,043;
5. Royalty due on sulfur production: $4,379,048; and
6. Royalty due on condensate: $678,394.

As mentioned above, of the $63,769,568 in additional royalties awarded the State by the jury, the jury, by completing a blank on the verdict form, attributed $23,449,186 to fraud.

On appeal, this Court reversed the $15,570,921 judgment awarding the State royalties due for unpaid volumes of gas in the amount of $6,804,492; reversed the judgment awarding the State $4,379,048 in royalties due on sulfur production; and reversed the judgment awarding the State $678,394 in royalties due on the condensate oil. Additionally, this Court concluded that the State had failed to establish its fraud claim as a matter of law, and it reversed the judgment in favor of the State on the fraud claim. This Court stated:

“In conclusion, we affirm the judgment entered on the $63,769,568 jury verdict for compensatory damages on the contractual issues only in the principal amount of $51,907,634. In all other respects, we reverse the judgment as to compensatory damages. We remand the cause for the trial court to enter a judgment in favor of the State and against Exxon on the breach-of-contract claims and to award compensatory damages, with interest, in an amount consistent with this opinion.
“No fraud was proven under Alabama law, and the verdict and punitive damages awarded on the fraud claim should have been precluded by the trial court’s entry of a [judgment as a matter of law] for Exxon on this claim. Accordingly, we reverse the judgment in favor of the State on the fraud claim, and we instruct the trial court on remand to enter a judgment in favor of Exxon on the State’s fraud claim.”

Exxon Mobil Corp., 986 So.2d at 1118.

In order to facilitate this Court’s mandate that a final judgment be entered in favor of the State on the contractual issues and that compensatory damages be awarded, with interest, the parties on remand agreed to the following:

1. That Exxon owed the State $31,907,-638 in unpaid royalties for the production months October 1993 through December 2002, which were encompassed in the trial court’s judgment of November 19, 2003;

2. That Exxon owed the State $26,255,150 in interest pursuant to § 9-17-33(d), Ala.Code 1975, for the unpaid royalties due from October 1993 through the judgment date of November 19, 2003;

3. That Exxon owed the State $29,373,-080 in postjudgment interest pursuant to § 8-8-10, Ala.Code 1975, on the $31,907,638 of unpaid royalties and $26,255,150 of interest pursuant to § 9-17-33(d), from November 19, 2003, through January 31, 2008;

4. That Exxon owed, the State $26,266,395 in additional royalties for the production months January 2003 (the first month in which a royalty payment came due following this Court’s December 2002 decision) through August 2007 (the last month for which a royalty payment came due before this Court’s November 2007 decision) that were not encompassed in the trial court’s judgment of November 19, 2003, but were subject to the trial court’s declaratory judgment of December 5, 2003, which stated that Exxon was to pay future royalties “according to the plain and unambiguous language of the leases as reflected by the jury’s verdict”;

5.That Exxon owed the State $7,708,968 of interest pursuant to § 9-17-33(d), Ala.Code 1975, on the $26,266,395 of additional royalties from January 2003 through January 31, 2008 (the “date certain” on which Exxon paid the judgment).

However, two significant points of disagreement arose between the parties regarding the interest owed the State by Exxon. In addition to the $29,373,080 in postjudgment interest the State was entitled to for the period November 19, 2003, through January 31, 2008, the State claimed that Exxon owed, pursuant to § 9-17 — 33(d), an additional $16,113,836 in interest on the judgment amount of $31,907,-638 — the $51,906,631 principal amount affirmed by this Court less a $20,000,000 payment — for that same period. The State argued that because the amount of $31,907,638 owed by Exxon was not paid until January 31, 2008, the State was entitled, pursuant to § 9-17-33(d), to interest on that amount from November 19, 2003, until January 31, 2008, the date it was paid. In other words, the State claims that interest pursuant to § 9-17-33(d) should run concurrently with the post-judgment interest pursuant to § 8-8-10 from November 19, 2003, through January 31, 2008.

Second, in addition to the $7,708,968 in interest on the additional royalty amount of $26,266,395 the State was entitled to pursuant to § 9-17-33(d) from January-2003 through January 31, 2008, the State claimed that Exxon owed, pursuant to § 8-8-10, an additional $6,898,725 in post-judgment interest on the additional royalty amount of $26,266,395 from December 5, 2003, until Exxon satisfied the judgment on January 31, 2008. The State argued that the trial court’s declaratory judgment of December 5, 2003, which ordered Exxon to pay future royalty payments “according to the plain, unambiguous language of the leases as reflected in the jury’s verdict” had the effect of incorporating into that judgment each monthly royalty payment as it came due. Thus, the State argued that it is entitled to postjudgment interest pursuant to § 8-8-10 from the date of the declaratory judgment on December 5, 2003, until the judgment was satisfied by Exxon on January 31, 2008. In other words, the State claims that postjudgment interest pursuant to § 8-8-10 should run concurrently with interest pursuant to § 9-17-33(d), from December 5, 2003, the date of the declaratory judgment, through January 31, 2008, the date the judgment was paid.

Exxon argued in opposition that to allow interest under §§ 9-17-33(d) and 8-8-10 to run concurrently, as the State urges, would result in its paying interest at a doubled rate of 24%. Exxon argued that Alabama law does not permit a party to collect both prejudgment and post-judgment interest because that would constitute compound interest, which is prohibited.

Following a hearing, the trial court, on January 31, 2008, entered a judgment in favor of the State and against Exxon for the amounts agreed to by the parties as set out above. However, the trial court denied the State’s claim for interest in the amount of $16,113,836 pursuant to § 9-17-33(d) for the period November 19, 2003, through January 31, 2008, and it further denied the State’s claim for postjudgment interest in the amount of $6,898,725 pursuant to § 8-8-10 for the period December 5, 2003, through January 31, 2008. On January 31, 2008, Exxon paid to the State $121,511,231 in satisfaction of the judgment entered against it. On that same date, the State filed with the trial court a notice of partial satisfaction of the judgment and expressly reserved its right to appeal the trial court’s denial of its claim for additional interest under §§ 9-17-33(d) and 8-8-10. The State filed its timely notice of appeal on February 21, 2008.

Standard of Review

Because this appeal involves only questions of law relating to the applicability of §§ 9-17-33(d) and 8-8-10, Ala.Code 1975, our review is de novo. Alabama Dep’t of Transp. v. Williams, 984 So.2d 1092 (Ala.2007).

Discussion

I. Interest under § 9-17-33(d) from, November 19, 2003, through January 31, 2008

The parties agreed that Exxon owed the State $29,373,080 in post-judgment interest pursuant to § 8-8-10, from November 19, 2003, the date that the trial court entered a judgment on the jury’s verdict, through January 31, 2008, the date Exxon paid the judgment. However, the State contends on appeal that Exxon owes an additional $16,113,836 in interest pursuant to § 9-17-33(d) on the remitted judgment amount of $31,907,638 from November 19, 2003, through January 31, 2008. The State argues that interest under § 9 — 17—33(d) is in the nature of a penalty and that because the judgment amount of $31,907,638 remained unpaid until January 31, 2008, it is entitled to interest under § 9-17-33(d) for each month the judgment remained unpaid from November 19, 2003, through January 31, 2008.

Exxon argues that the interest imposed under § 9-17-33(d) is prejudgment interest, which no longer accrued once the trial court entered its judgment on November 19, 2003, that adjudicated and fixed Exxon’s liability on unpaid royalties from October 1993 through December 2002. Rather, Exxon contends that postjudgment interest pursuant to § 8-8-10 began to run on November 19, 2003, and accrued from that date until the judgment was paid on January 31, 2008.

Section 9-17-33(d), Ala.Code 1975, provides:

“(d) Any first purchaser of production or operator and/or owner of the right to drill substituted for the first commercial purchaser as provided herein, that violates this section shall be liable to the persons legally entitled to the proceeds from production for the unpaid amount of the proceeds plus interest at the rate of 12 per cent per annum, the interest accruing from the date at which the proceeds were due as specified herein.”

Nothing in the text of § 9-17-33(d) expressly indicates that that section is penal in nature. However, the title of the bill that enacted § 9-17-33(d) states that the bill is “[t]o provide for and prescribe time limits in which proceeds derived from the sale of oil and gas production shall be paid to the person or persons legally entitled thereto and to further prescñbe interest penalties for failure to meet the said limits.” Act No. 82-557, Ala. Acts 1982. Although § 9-17-33 was amended in 1991, subsection (d) remained unchanged. The title of the bill amending § 9-17-33 in 1991 states that the bill is

“[a]n Act, to amend Section 9-17-33 of the Code of Alabama 1975, as amended, relating to the disposition of proceeds or royalties from the sale of oil or gas production, penalties for violations and judicial jurisdiction, so as to further provide therefor and for payment information requirements to interest owners; to provide for definitions for the section and exceptions; and to provide an effective date.”

Act No. 91-681, Ala. Acts 1991. Section 9-17-33 was again amended in 1999. See Act No. 99-396, Ala. Acts 1999. Although the text of § 9-17-33(d) remained unchanged by this most recent amendment, the term “penalty” was omitted from the title of the bill amending § 9-17-33.

In interpreting § 9 — 17—33(d), it is appropriate for this Court to look to other jurisdictions that have interpreted similarly worded statutes. Cagle v. City of Gadsden, 495 So.2d 1142 (Ala.1986). Both parties cite this Court to the Oklahoma Supreme Court’s decision in Fleet v. Sanguine, Ltd., 854 P.2d 892 (Okla.1993). At issue in Fleet was Okla. Stat., tit. 52, § 540(b) (1981), which provided the following:

“ ‘Any said first purchasers or owner of the right to drill and produce substituted for the first purchaser as provided herein that violates this act [52 O.S. 1981 § 540] shall be liable to the persons legally entitled to the proceeds from production for the unpaid amount of such proceeds with interest thereon at the rate of twelve percent (12%) per annum, as the penalty.’

854 P.2d at 897 n. 14 (emphasis added). The language then contained in § 540(b) is virtually identical to the language contained in § 9-17-33(d), except that § 540(b) expressly referred to providing for interest on unpaid royalties “as a penalty.” The court in Fleet characterized § 540(b) as a penalty provision that, nevertheless, provided for “prejudgment interest” at a rate of 12%. Fleet, 854 P.2d at 895. We find the Fleet court’s treatment of the language in § 540(b) to be persuasive in our treatment of the nearly identical language in § 9-17-S3(d) and conclude that § 9-17-33(d), which is penal in nature, nevertheless provides for prejudgment interest on the unpaid royalties.

“Prejudgment interest runs until the date of the judgment; postjudgment interest runs thereafter.” State v. Marble City Plaza, Inc., 989 So.2d 1059, 1060 n. 4 (Ala.Civ.App.2006), aff'd, 989 So.2d 1065 (Ala.2007). Because we have concluded that the interest on unpaid royalties payable pursuant to § 9-17-33(d) is prejudgment interest, the State is entitled to interest under § 9-17-33(d) up to November 19, 2003, the date on which the trial court entered its judgment, at which point interest imposed pursuant to § 9-17-33(d) ceased to accrue.

This holding is further supported by analogous precedent set forth in Burgess Mining & Construction Corp. v. Lees, 440 So.2d 321 (Ala.1983). Section 8-8-8, Ala. Code 1975, sets forth the time from which interest accrues upon a breach of contract: “All contracts, express or implied, for the payment of money ... bear interest from the day such money ... should have been paid.” This section, however, fails to designate when this interest ceases to accrue.

Burgess, however, considered the relationship between §§ 8-8-1 (entitled “Maximum rates of interest — Generally”) and 8-8-10 (entitled “Interest on money judgments and costs,” as amended after the plaintiffs cause of action in Burgess accrued but before the circuit court’s entry of a final judgment). This Court stated in Burgess:

“The consideration of the applicable rate of interest in this case warrants a discussion of the appropriate interest rate for prejudgment as opposed to post-judgment interest.
“Section 8-8-1 states:
“ ‘Except as otherwise provided by law, the maximum rate of interest upon the loan or forebearance of money, goods or things in action, except by written contract is $6.00 upon $100.00 for one year, and the rate of interest by written contract is not to exceed $8.00 upon $100.00 for one year and at that rate for a greater or less sum or for a longer or shorter time.’
“The legislature ‘otherwise provided by law" that postjudgment interest, where no other rate is established by contract, should be 12% per annum. As amended, § 8-8-10 reads in relevant part:
“ ‘Judgments for the payment of money, other than costs, if based upon a contract action, bear interest from the day of the cause of action, at the same rate of interest as stated in said contract; all other judgments shall bear interest at the rate of twelve (12) percent per annum, the provisions of Section 8-8-1 of the Code of Alabama 1975 to the contrary notwithstanding; ... ’ (Emphasis added).
“The legislature chose not to amend, but rather left unchanged, § 8-8-1, upon enactment and subsequent amendment of § 8-8-10.
“Utilizing the general rules of statutory construction, we cannot read § 8-8-10, as amended, as providing for 12% prejudgment interest. No statute ‘otherwise providefs]’ for prejudgment interest at any other rate than the legal rate. Consequently, the Court holds that where, as in this case, no written contract controls the interest rate, thereby precluding the 8% rate of 8-8-1, the legal rate of prejudgment interest is 6% per annum. See Southern Security Services, Inc. v. Esneault, 435 So.2d 1309 (Ala.Civ.App.1983).
“In this case, Lees is entitled to prejudgment interest of 6% from October 26, 1977, until the judgments were entered on September 15, 1982, and post-judgment interest of 12% thereafter.”

440 So.2d at 337-38.

In this case, the legislature also “otherwise provided by law” when it enacted § 9—17—33(d), Ala.Code 1975, providing for “12 percent per annum” interest on the unpaid amount of proceeds from the sale of oil or gas production. Neither § 9-17-33(d) nor §§ 8-8-1 and 8-8-8 provide for a specific end date upon which the interest allowed under these sections should cease, whether by payment or by final judgment. However, Burgess makes clear, the difference between the applicable prejudgment-interest statute and the postjudgment-in-terest statute involved there, providing that interest as allowed by a statute (§ 8-8-1), which is similar to § 9-17-33(d) in that neither has a stated end date, is prejudgment interest, and that postjudgment interest per § 8-8-10 continues alone after a final judgment is entered.

II. Interest under § 8-8-10 from December 5, 2003, through January 31, 2008

The parties agreed that the State was entitled to $7,708,968 in interest pursuant to § 9 — 17—33(d) on the additional royalty amount of $26,266,395 from January 2003 through January 31, 2008. However, the State argues on appeal that under § 8-8-10 Exxon owes an additional $6,898,725 in postjudgment interest on the additional royalty amount of $26,266,395 from December 5, 2003, until Exxon satisfied the judgment on January 31, 2008. The State contends that the trial court’s declaratory judgment of December 5, 2003, which ordered Exxon to calculate future royalty payments “according to the plain, unambiguous language of the leases as reflected by the jury’s verdict” had the effect of incorporating into that judgment each monthly royalty payment as it came due. Thus, the State argues that it is entitled to postjudgment interest pursuant to § 8-8-10 from the date of the declaratory judgment on December 5, 2003, until Exxon satisfied the judgment on January 31, 2008.

Section § 8-8-10, Ala.Code 1975, entitled “Interest on money judgments and costs,” provides as follows:

“Judgments for the payment of money, other than costs, if based upon a contract action, bear interest from the day of the cause of action, at the same rate of interest as stated in said contract; all other judgments shall bear interest at the rate of 12 percent per annum, the provisions of Section 8-8-1 to the contrary notwithstanding; provided, that fees allowed a trustee, executor, administrator, or attorney and taxed as a part of the cost of the proceeding shall bear interest at a like rate from the day of entry.”

“Section 8-8-10 authorizes the payment of post-judgment interest as compensation for the loss of use of money as a result of the nonpayment of a liquidated sum for which liability has already been determined.” Elmore County Comm’n v. Ragona, 561 So.2d 1092, 1093 (Ala.1990). Further, “ ‘[pjost-judgment interest is not a punishment inflicted on a judgment debtor for exercising the right to appeal. Instead, like pre-judgment interest, post-judgment interest is simply compensation for a judgment creditor’s lost opportunity to invest the money awarded as damages at trial.’ ” Birmingham Pain Ctr., Inc. v. Cosgrove, 896 So.2d 538, 543 (Ala.Civ.App.2004) (quoting Miga v. Jensen, 96 S.W.3d 207, 212 (Tex.2002)).

Section 8-8-10 applies only when the judgment is one for the payment of money, i.e., a “money judgment.” See Bank Independent v. Coats, 621 So.2d 951 (Ala.1993) (holding that judgment following jury’s verdict declaring there was no fraudulent conveyance was not a money judgment entitling wife to 12% postjudgment interest). Following the entry of judgment on the jury’s verdict in this case, Exxon sought guidance from the trial court on how to apply the jury’s verdict to future royalty-payment computations. On December 5, 2003, the trial court entered an order directing Exxon to pay future royalties “according to the plain, unambiguous language of the leases as reflected in the jury’s verdict.” This judgment did not constitute a money judgment for purposes of § 8-8-10. It did not adjudicate or fix an amount of future royalties owed the State by Exxon. Rather, the judgment simply informed Exxon that it was to compute future royalties according to the leases as interpreted by the jury. Accordingly, because the trial court’s December 5, 2003, judgment did not constitute a money judgment, the State is not entitled to post-judgment interest pursuant to § 8-8-10 from the period December 5, 2003, through January 31, 2008.

Conclusion

We conclude that the State is not entitled to the requested interest pursuant to §§ 9 — IT—33(d) and 8-8-10, and we affirm the trial court’s judgment.

AFFIRMED.

SEE, LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., concurs in part and dissents in part.

COBB, Chief Justice

(concurring in part and dissenting in part).

I respectfully dissent from Part I of the opinion, interpreting § 9 — 17—33(d), Ala. Code 1975. That Code section states:

“Any first purchaser of production or operator and/or owner of the right to drill substituted for the first commercial purchaser as provided herein, that violates this section shall be liable to the persons legally entitled to the proceeds from production for the unpaid amount of the proceeds plus interest at the rate of 12 percent per annum, the interest accruing from the date at which the proceeds were due as specified herein.”

Even though the majority acknowledges that § 9 — 17—88(d) is penal in nature as noted by the 1991 amendment, and even though the plain language of this statute does not limit the interest charged to “prejudgment” interest, the majority nonetheless concludes that language limiting the extent of the penalty to prejudgment, interest is contained in the statute.

I am constrained to interpret this statute based upon what it says. As I have said before in an analogous context:

“In the past, this Court operated under a duty to adhere to legal precedent without regard to the outcome of the case, and it consistently concluded that the plain language of a statute required that this Court apply it as stated. The rule was generally stated as follows:
“ ‘ “When [a] statutory pronouncement is clear and not susceptible to a different interpretation, it is the paramount judicial duty of a court to abide by that clear pronouncement.” ’
“Macon v. Huntsville Utils., 613 So.2d 318, 320 (Ala.1992) (quoting Parker v. Hilliard, 567 So.2d 1343, 1346 (Ala.1990)). This rule has found application even in the recent past. See, e.g., Bright v. Calhoun, 988 So.2d 492, 498 (Ala.2008) (quoting City of Bessemer v. McClain, 957 So.2d 1061, 1074 (Ala.2006) (‘ “To discern the legislative intent [for purposes of statutory construction], the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction.” ’)); Boutwell v. State, 988 So.2d 1015, 1020 (Ala.2007) (‘ “[Principles of statutory construction instruct this Court to interpret the plain language of [the] statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.” Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001).’); Cleburne County Comm’n v. Norton, 979 So.2d 766, 773 (Ala.2007) (“““Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ” ’ (quoting Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 149 (Ala.2006), quoting in turn Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), quoting in turn IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992))). I believe that the majority opinion flies in the face of this precedent and the many other cases that have espoused the principle that this Court’s paramount duty is to apply the plainly expressed language of the law to mean what it says.”

Edwards v. Kia Motors of America, 8 So.3d 277, 284-85 (Ala.2008)(Cobb, C.J., dissenting). Because § 9-17-33(d) imposes interest “from the date at which the proceeds were due,” without reference to the date of a particular judgment, I would construe it accordingly, rather than substitute the Court’s judgment for that of the legislature. I must therefore dissent as to this part of the opinion. In all other respects, I concur with the opinion.

      . The jury verdict form incorporated into the judgment showed a total of $63,592,647 in additional royalties; the sum of the individual awards, however, equals $63,769,568. The $11,902,827,801 figure reflects the $63,592,647 amount and not the sum of the compensatory awards. See Exxon Mobil Corp., 986 So.2d at 1099 n. 4 and 1102 n. 5.

      . Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986); Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989).

      . This $31,907,638 constitutes the $51,907,638 in principal amount affirmed by this Court in its decision of November 1, 2007, less a $20,000,000 payment previously made to the State by Exxon.

      . Exxon agreed that postjudgment interest pursuant to § 8-8-10, Ala.Code 1975, should accrue on the $26,255,150 in interest owed pursuant to § 9-17-33(d).

      .For purposes of accurately calculating interest in this case, the parties and the trial court chose January 31, 2008, as the “date certain” for the entry of judgment and satisfaction of that judgment.

      . Section 540(b) was subsequently amended to remove the "penalty” language from its text and was recodified at Okla. Stat., tit.52, § 570.10D.1 (Supp.1992), which provides, in part, that royalties "not timely paid shall earn interest at the rate of twelve percent (12%) per annum to be compounded annually, calculated from the end of the month in which such production is sold until the day paid.” Unlike the current version of § 9-17-33(d), the amended version of § 540(b) (now § 570.10D.1) expressly provides that interest on unpaid royalties is calculated from the date due until the date paid. The Oklahoma courts no longer refer to § 570.10D.1 as a “penalty” provision. Purcell v. Santa Fe Minerals, Inc., 961 P.2d 188 (Okla.1998).

      . The dissent states that the author is "constrained to interpret [§ 9—17—33(d) ] based upon what it says” and that " '[i]n the past, this Court operated under a duty to adhere to legal precedent without regard to the outcome of the case (quoting Edwards v. Kia Motors of America, 8 So.3d 277, 284 (Ala.2008)(Cobb, C.J., dissenting)). The dissent seemingly ignores the well established rale of statutory construction that permits this Court to look to other jurisdictions that have interpreted similarly worded statutes. The dissent further ignores Fleet — which is the only real "legal precedent” presented — in which the Oklahoma Supreme Court construed a statute worded almost identically as § 9-17-33(d) to provide for prejudgment interest.