author: ISHEE, J.,

text:
    Billy Ray DUNAWAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00902-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.
    Billy Ray Dunaway, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Billy Ray Dunaway, pro se, appeals the denial of his writ of habeas corpus by the Pike County Circuit Court. The trial court found that all of the issues raised were litigated previously or waived, with the exception of his newly-discovered-evidence argument, which was without merit. Under Mississippi law, we treat a writ for habeas corpus as a motion for post-conviction relief (PCR). Finding the trial court lacked the jurisdiction to entertain Duna-way’s PCR motion, we affirm the trial court’s decision on other grounds.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2002, Dunaway was convicted of vehicular homicide. He was sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a $10,000 fine. Thereafter, Dunaway appealed his conviction. On appeal, this Court affirmed the conviction and sentence on May 3, 2005. Dunaway v. State, 919 So.2d 67, 69 (¶ 2) (Miss.Ct.App.2005).

¶ 3. Dunaway then filed two applications with the Mississippi Supreme Court for leave to seek post-conviction relief in the trial court. On May 28, 2008, the supreme court denied Dunaway’s first application for leave to proceed in the trial court. The supreme court found that he had failed to make a substantial showing of the denial of a state or federal right. On March 30, 2010, the supreme court denied Dunaway’s second application, holding that the application was procedurally barred as a successive writ pursuant to Mississippi Code Annotated section 99-39-27(9) (Supp.2012).

¶ 4. In October 2010, Dunaway nonetheless filed a petition for an order to show cause or, in the alternative, for a writ of habeas corpus. On June 2, 2011, the trial court entered an order. The trial court found that all of the issues raised were litigated previously or waived, with the exception of his newly-discovered-evidence argument. With regard to that argument, the trial court found that Dunaway failed to prove that the evidence qualified as newly discovered evidence or that it would have changed the outcome at trial. Accordingly, his petition was denied. Duna-way now appeals the trial court’s order.

DISCUSSION

¶ 5. The Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA) controls “post-conviction habeas corpus, as well as statutory post-conviction habeas corpus.” Miss.Code. Ann. § 99-39-3(1) (Rev.2007). Therefore, although Dunaway’s petition was titled as a writ of habeas corpus, under Mississippi law, it is considered a PCR motion. See Grubb v. State, 584 So.2d 786, 788 (Miss.1991). As such, his petition is controlled by the UP-CCRA.

¶ 6. When a defendant’s conviction and sentence have been affirmed on direct appeal, permission from the supreme court must be obtained before filing a PCR motion in the trial court. Miss.Code Ann. § 99-39-7 (Supp.2012). “This procedure is not merely advisory, but jurisdictional.” Campbell v. State, 75 So.3d 1160, 1162 (¶ 7) (Miss.Ct.App.2011) (citing Caldwell v. State, 9 So.3d 432, 433 (¶ 6) (Miss.Ct.App.2008)).

¶ 7. In the instant case, Dunaway sought permission twice from the supreme court to file a PCR motion in the trial court. Both applications were denied. Because he was denied permission from the supreme court, the trial court lacked the requisite jurisdiction to entertain his PCR motion. “Although the circuit court lacked jurisdiction, this Court has appellate jurisdiction to address the merits of the circuit court’s judgment.” Campbell, 75 So.3d at 1162 (¶ 8) (citing M.R.A.P. 16; Miss.Code Ann. § 9-4-3 (Rev.2002)).

¶ 8. The trial court denied the PCR motion because all of the issues raised by Dunaway, with the exception of his newly-discovered-evidenee argument, had been litigated previously or waived. With regard to the newly-discovered-evidence argument, the trial court found that Duna-way failed to establish that the evidence could not have been discovered at trial or that the newly discovered evidence would have changed the outcome of the trial. However, as noted above, the trial court did not have the jurisdiction to entertain Dunaway’s PCR motion. Therefore,- his PCR motion should have been dismissed by the trial court for a lack of jurisdiction.

¶ 9. Furthermore, even if the trial court did have jurisdiction, Dunaway’s PCR motion was time-barred. Mississippi Code Annotated section 99-39-5(2) (Supp.2012) states, in part: “A motion for relief under this article shall be made within three (3) years after the time in which the [mov-ant’s] direct appeal is ruled upon by the Supreme Court of Mississippi[.]” Here, Dunaway’s direct appeal was ruled upon on May 3, 2005, and his PCR motion was not filed until October 2010. Thus, his PCR motion fell outside of the three-year time period in which to file a PCR motion timely. Accordingly, even if the trial court had jurisdiction, his PCR motion would have been time-barred.

¶ 10. “It is well-settled law that on appeal this Court may affirm a circuit court’s ruling for different reasons than those offered by the circuit court.” Campbell, 75 So.3d at 1162 (¶ 9). As such, we affirm the trial court’s decision, but on the ground that the trial court lacked jurisdiction.

¶11. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

license: Public Domain

text:
    Prentiss SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00194-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.

      George T. Holmes, Jackson, Wilbert Le-von Johnson, Benjamin A. Súber, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On March 22, 2011, Prentiss Smith was indicted by a Bolivar County grand jury for one count of depraved-heart murder and one count of aggravated assault. Smith was convicted of both counts. Thereafter, he filed a motion for a judgment notwithstanding the verdict (JNOV), which was denied. Smith was then sentenced to serve life imprisonment for the murder conviction and twenty years for the aggravated-assault conviction, with the sentences to run consecutively to each other, all in the custody of the Mississippi Department of Corrections (MDOC). Smith now appeals, arguing the evidence was insufficient to support his convictions of depraved-heart murder and aggravated assault. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of December 24, 2010, Albert Smith Jr.; his wife, Derba Smith; and their daughter, Dionne Smith, visited Albert Jr.’s parents, Albert Smith Sr. and Mamie Smith, in Cleveland, Mississippi. Albert Jr.’s sister, Vera Tubbs, and her daughter, Veronica Tubbs, lived across the street from Albert Sr. Upon noticing the presence of Albert Jr. and his family, Vera and Veronica also decided to visit. By the time Vera and Veronica arrived, Mamie had gone to bed, and Albert Sr. and Albert Jr. were watching television in a separate room. Derba, Dionne, Vera, and Veronica proceeded to decorate the Christmas tree.

¶ 3. Veronica testified at trial that after she had been there for approximately five minutes, Albert Jr.’s brother, Smith, arrived at the house. According to Veronica, when Smith walked in the house “he stated either ‘You let the devil in’ or ‘The devil is in the house[.]’ ” He then pulled a gun out of his pocket and pointed it at Derba. Although Derba begged Smith to put the gun down, he struck her in the head with the butt of the gun. At that point, Albert Sr. and Albert Jr. ran into the room, and Albert Sr. told Smith to leave. Veronica did not witness the subsequent events because she exited the room to call 911. While in the separate room, Veronica heard two gun shots. Upon her return, she saw Albert Jr. and Derba lying on the floor.

¶ 4. Derba testified at trial regarding the events of that night. She stated that once Smith arrived, he pointed a gun in her face and said, ‘You’re going to give me my ... gun tonight, or I’m going to kill you.” Vera pleaded with Smith to put the gun away, and at that point he began to walk away from Derba. However, he then returned and hit Derba in the head twice with the butt of the gun. Upon hearing the commotion, Albert Sr. and Albert Jr. ran into the room and pulled Smith away from Derba. A scuffle among the men then ensued.

¶ 5. During the fight, Derba saw Smith hold a gun to Albert Jr.’s head. She told Albert Jr. to “let [Smith’s] arm go, or he is going to kill you.” Albert Jr. released Smith, at which point Smith stood up and shot Albert Jr. in the head. As various individuals were retrieving towels in an attempt to save Albert Jr.’s life, Smith pointed the gun at Derba. She testified: “The bullet was coming directly at me. I turned at an angle, just slightly at an angle and it hit me in the hip.” Smith then left the house.

¶ 6. Vera witnessed a portion of the events. Vera testified that when Smith entered the house, he initially pointed the gun at her. He then walked over to Der-ba, pointed the gun in her face, and said, “Tell me where my ... gun is, or someone is going to die here tonight.” Vera then retreated to a neighbor’s house to call the police. However, before fleeing, she saw Smith raise his hand holding the gun and begin to move it toward Derba’s head. While at the neighbor’s house, Vera heard two gunshots approximately one minute apart. After hearing the shots, Vera witnessed Smith leave the house in a slow, calm manner, get in his truck, and leave.

¶ 7. Smith testified in his own defense at trial. His version of the events on the night in question vary from those testified to by the other family members. Smith stated that earlier in the day he had arrived at his house and saw a man standing behind a tree across the street. He believed the man was attempting to break into his house. Smith went into his house, looked around, and did not find anyone inside. He then grabbed his gun and went to look for the individual he saw standing behind the tree. Upon discovering the man was no longer across the street, Smith decided to drive around looking for the individual. When Smith could not find the person, he decided to visit Albert Sr.’s house.

¶ 8. According to Smith, Derba began yelling at him as soon as he arrived at the house. He then put his car keys in his pocket and pulled out the gun. Upon seeing this, Albert Jr. began pulling Smith away from Derba. Smith testified that Derba was knocked down during the scuffle, and that he never hit her with the gun. The brothers then fell to the floor and continued fighting. Smith claimed that during the fight, the gun accidentally went off, killing Albert Jr. Albert Sr. then attempted to hold Smith down; however, Smith was able to stand. Thereafter, Albert Sr. was pushing Smith toward the door, and Dionne was pulling at Smith’s arm holding the gun. Smith claimed that during the commotion, the gun discharged a second time and hit Derba. Smith testified he never intended to kill or harm anyone.

¶ 9. Smith was charged with the murder of Albert Jr. and the aggravated assault of Derba. He was convicted of depraved-heart murder and aggravated assault. Thereafter, he filed a motion for a JNOV, which the trial court denied. Smith was then sentenced to life imprisonment for the murder conviction and twenty years for the aggravated-assault conviction, with the sentences to run consecutively to each other, all in the custody of the MDOC. Smith now appeals.

DISCUSSION

¶ 10. On appeal, when considering the sufficiency of the evidence to support a conviction, we must consider “whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). When considering a challenge to the sufficiency of the evidence, this Court will only reverse and render if the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guiltyL]” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, if upon review, “the evidence ... is of such quality and weight that, ‘having in mind the beyond[ ]a[-]reasonable[-]doubt[-]burden[-]of[-]proof standard, reasonable fair-minded [Jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. Finally, we review the evidence in the light most favorable to the State. Id. at (¶ 17).

I. Sufficiency of Evidence for Depraved-Heart Murder

¶ 11. Smith argues the evidence was insufficient to find him guilty of depraved-heart murder. Instead, he asserts he should have been found guilty of heat-of-passion manslaughter, at most. To support his claim, he argues the only evidence of depraved-heart murder is Derba’s testimony that he intentionally pointed the gun at Albert Jr. and shot him.

¶ 12. Depraved-heart murder is defined as “[t]he killing of a human being without the authority of law ... [w]hen done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Miss. Code Ann. § 97-3-19(1)(b) (Rev.2006). Heat-of-passion manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense[.]” Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 13. Testimony at trial established that Smith entered the house and began pointing a gun at various family members while making threats. When Albert Jr. attempted to stop Smith’s actions, a fight ensued. Although Smith claimed that he accidentally shot Albert Jr. during their fight, Derba testified that she saw Smith intentionally point the gun at Albert Jr. and shoot. “It is a well-settled principle of law that issues of weight and credibility of witness testimony are within the sole province of the jury as fact-finder.” Lyles v. State, 12 So.3d 552, 555 (1115) (Miss.Ct.App.2009). In the instant case, the jury chose to believe Derba’s testimony, and found Smith had killed Albert Jr. “in the commission of an act eminently dangerous to others and evincing a depraved heart,” but without premeditation.

¶ 14. Moreover, the jury was instructed regarding both depraved-heart murder and heat-of-passion manslaughter. It was then up to the jury to decide whether the State had proven all of the elements of murder. See Pitts v. State, 66 So.3d 174, 181 (¶ 28) (Miss.Ct.App.2010). The jury considered the testimony and evidence and chose to convict Smith of depraved-heart murder. Viewing the evidence in the light most favorable to the verdict, we find the evidence was sufficient to support the murder conviction. This issue is without merit.

II. Sufficiency of Evidence for Aggravated Assault

¶ 15. Smith argues the evidence was insufficient to establish he committed aggravated assault against Derba. He claims he accidentally shot Derba during the struggle, which does not constitute aggravated assault. Smith further contends that because none of the other witnesses saw the shooting, Derba’s testimony is the only evidence to establish he intentionally shot her.

¶ 16. One is guilty of aggravated assault if he “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.Code Ann. § 97 — 3—7(2)(a)(ii) (Supp.2012). In the instant case, the evidence clearly established that Smith shot Derba. While Smith claims the shooting was unintentional, Derba testified that he intentionally pointed the gun at her and shot her.

¶ 17. Furthermore, the record reflects that from the moment Smith arrived at the house, he had been threatening Derba. Derba testified that he pointed the gun at her and said, “You’re going to give me my ... gun tonight, or I’m going to kill you.” Vera stated that Smith told Derba, “Tell me where my ... gun is, or someone is going to die here tonight,” while pointing a gun in Derba’s face. In addition, Veronica and Derba both testified that Smith struck Derba in the head twice with the gun. Smith’s prior threats and violence against Derba, in conjunction with Derba’s testimony that Smith intentionally shot her, is sufficient to establish that he intended to cause her serious bodily injury. Therefore, we find the evidence was sufficient to support an aggravated-assault conviction. This issue is without merit.

¶ 18. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, MURDER, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF LIFE FOR COUNT I AND TWENTY YEARS FOR COUNT II, WITH THE SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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


author: WOODALL, Justice.

text:
    Ex Parte Alanna NAIL et al. (In re George Dulin and Vivian Dulin v. Northeast Alabama Regional Medical Center et al.).
    1110742.
    Supreme Court of Alabama.
    Aug. 17, 2012.
    Rehearing Denied Nov. 9, 2012.

      Randal H. Sellers, M. Christopher Ea-gan, and Sybil V. Newton of Starnes Davis Florie LLP, Birmingham, for petitioners.
    J. Callen Sparrow of Heninger Garrison Davis, LLC, Birmingham, for respondents.
   WOODALL, Justice.

Alanna Nail, Paul Watson, and Gennie Farragher, all registered nurses (hereinafter sometimes referred to collectively as “the nurses”), petition this Court for a writ of mandamus directing the Calhoun Circuit Court to vacate its order denying the summary-judgment motion they filed, which raised a statute-of-limitations defense. We deny the petition.

I. Factual and Procedural Background

According to the complaint filed in this case, George Dulin was admitted to the Northeast Alabama Regional Medical Center (“the Center”) in May 2005 for treatment of “crush injuries to his chest.” There, “he underwent a tracheostomy for long term airway management.” On the morning of June 3, 2005, Dulin’s tracheos-tomy tube allegedly became dislodged during a bath administered by the nursing staff, resulting in the loss of oxygen for an undetermined period. He allegedly suffered brain damage as the result of oxygen deprivation.

One month later, Vivian Dulin, George’s wife, obtained and reviewed the hospital records. Included in the records was a “Cardiopulmonary Pulmonary Arrest Flow Sheet” (“the flow sheet”) dated June 3, 2005. It purported to identify, by handwritten entries, eight members of a “Code Team” involved in the incident. Four of the members were designated by an initial, followed by a last name, which was, in turn, followed by the designation “RN.” The other four members were generally listed only by first name, followed by “RT” (respiratory therapist).

The names on the flow sheet are obscure, at best; little can be made out with any certainty. One of the more legible of the RNs’ names is the fourth name from the top, which appears to be “P. Watkins.” Another initial appears to be an “A.”

The hospital records also included a “Nurses’ Notes Extension” (“the chart”), which gave a moment-by-moment chronicle of the series of events that occurred during the tube displacement and reintu-bation. Each entry on the chart was followed by a signature closely resembling the first handwritten entry on the flow sheet, which possibly began with the letter “A.”

On May 2, 2007, the Dulins commenced a medical-malpractice action against the Center and 17 fictitiously named defendants. The complaint averred, in pertinent part:

“On or about June 3, 2005, when nurses and/or other employees of the [Center] were changing [Mr. Dulin’s] position during a bed bath, [Mr. Dulin’s] tra-cheostomy tube became dislodged and he had a code arrest.... [The Dulins] aver that the nurses and/or other employees of the [Center] that were attending Mr. Dulin at the time his tra-cheostomy tube became dislodged, were agents, servants, or employees of the [Center], and were working within the line and scope of their employment.
“10. [The Dulins] aver that said nurses and/or other employees of [the Center] and fictitious defendants] 1 through 17 negligently failed to provide a proper level of assistance to Mr. Dulin while in the process of bathing him and/or changing his position. The negligent failure to provide such proper assistance proximately resulted in the injuries and damages sustained by the [Dulins].
“11. [The Dulins] further aver that [the Center], through its employees and/or agents and fictitious defendants 1 through 17, negligently failed to properly secure [Mr. Dulin’s] tracheostomy tube prior to attempting to bathe him or change his position, and as a proximate consequence of this negligent failure, the [Dulins] were caused to sustain ... injuries and damages....
“14. As a proximate consequence of the aforesaid negligent conduct of the defendant Northeast Alabama Regional Medical Center and fictitious party defendants 1 through 17 ..., plaintiff George Dulin was injured and damaged. ...”

The fictitiously named defendants were defined, in pertinent part, as

“numbers 2, 3, 4 and 5 being that entity or individual or those entities or individuals which or who attempted to turn or change [Mr. Dulin’s] position on or about June 3, 2005 as set forth in the complaint; ... numbers 6, 7 and 8 whether singular or plural, being that individual or individuals who undertook to provide medical services and/or care and/or assistance to plaintiff George Du-lin on the occasion made the basis of this lawsuit, being negligence, wantonness, breach of contract or other actionable conduct which contributed to cause [Mr. Dulin’s] injuries; ... numbers 9, 10 and 11 being that person or entity which caused or contributed to cause the injuries made the basis of this suit; [and] Defendant numbers 12, 13 and 14 being the nurses and/or other employees of defendant Northeast Alabama Regional Medical Center that were attending Mr. Dulin at the time his tracheostomy tube became dislodged.... ”

Accompanying the complaint was a set of interrogatories requesting, among other things, “the names of all individuals who were assisting or attending to [Mr. Dulin] at the time [his] tracheostomy tube became dislodged.” On September 10, 2007, the Center answered the interrogatories, stating that the individuals were Alanna Nail, Paul Watson, and Gennie Farragher.

On October 26, 2007, the Dulins amended their complaint to substitute, pursuant to Rule 9(h), Ala. R. Civ. P., Nail, Watson, and Farragher for the fictitiously named defendants 6, 7, 8, 9, 10, and 11. More specifically, the amended complaint averred that Nail, Watson, and Farragher were the individuals who had negligently or wantonly undertaken “to provide medical services and/or care and/or assistance to plaintiff George Dulin on the occasion made the basis of [the] lawsuit.”

Subsequently, Nail, Watson, and Far-ragher moved for a summary judgment on the ground that the amended complaint, which purported to substitute their names for certain fictitiously named defendants, was filed more than two years after the alleged incident on June 3, 2005, and did not relate back to the filing of the original complaint, because, they argued, the Du-lins failed to exercise “due diligence” in ascertaining the nurses’ identities. They contended that the claims against them were, therefore, barred by the applicable two-year statute of limitations. See Ala. Code 1975, § 6-5-482.

In support of their motion, the nurses presented the deposition testimony of Vivian Dulin and excerpts from George Dulin’s hospital records relating to the incident made the basis of these claims. Mrs. Du-lin stated that she received a telephone call from the Center on the morning of the incident, informing her that there was a “problem” and that she should come to the Center. When she arrived at George’s hospital room, she found a nurse named “Alanna” working in the room, who told her that they “had a mess” and that George’s tracheostomy tube had become dislodged. Susan Green was the nurse in charge of the intensive-care unit at the Center. According to Mrs. Dulin, she and Green live near one another, and have occasionally encountered one another in the neighborhood since the incident.

In their summary-judgment motion, the nurses argued that “the Dulins ... were on notice of a list of nurses in the room at the time of the [incident] (even if they could not read all of the names or needed help identifying the full names).” (Emphasis added.) The Dulins, however, contended that “the documents specifically relating to the treatment at issue in this case are illegible.” The trial court denied the nurses’ motion, and they filed this petition.

II. Discussion

' “Rules 9(h) and 15(c), [Ala.] R. Civ. P., govern the relation back principles regarding substitution of an identified party for a fictitiously designated party after the statutory period of limitations as to the claims against that party has run.” Ex parte Klemawesch, 549 So.2d 62, 63 (Ala.1989).

Rule 9(h) provides:

“(h) Fictitious parties. When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”
As this Court has explained:
“ ‘This Court has stated on numerous occasions that in order to invoke the relation-back principles of Rule 9(h), that is, in order for the amended complaint with the defendant’s true name to relate back to the original complaint with the fictitious name, the plaintiff must establish (1) that the plaintiff was ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time the complaint was filed that the party subsequently named was in fact the party intended to be sued, Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala.1983); and (2) that the plaintiff used due diligence to discover the defendant’s true identity before filing the original complaint, Fulmer v. Clark Equipment Co., 654 So.2d 45 (Ala.1995).’
“The purpose of Rule 9(h) is to toll the applicable statute of limitations when the plaintiff has diligently pursued the identity of, but has been unable to identify, certain defendants. The fictitious name serves as a placeholder for the defendant, and Rule 15(c) [, Ala. R. Civ. P.,] allows the claim against the substituted defendant to relate back to the date of the original complaint. Toomey v. Foxboro Co., 528 So.2d 302 (Ala.1988).”

Weber v. Freeman, 3 So.3d 825, 831-32 (Ala.2008) (quoting Ex parte Atkinson, 976 So.2d 1001, 1003 (Ala.2007) (emphasis added)).

“The due-diligence standard, as stated in Davis v. Mims, 510 So.2d 227, 229 (Ala.1987), ‘is whether the plaintiff knew, or should have known or was on notice, that the substituted defendants were in fact the parties described fictitiously.’ ” Ex parte Griffin, 4 So.3d 430, 436 (Ala.2008) (emphasis added). “ ‘Diligence’ is a relative term, and what is due diligence must be determined by the circumstances of each case.” Brown & Flowers v. Central of Georgia Ry., 197 Ala. 71, 75, 72 So. 366, 367 (1916).

“ ‘This Court’s standard of review applicable to a petition for a writ of mandamus is well settled:
“ ‘ “ ‘Mandamus is an extraordinary remedy and requires a showing that there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ”” ”

Ex parte Bowman, 986 So.2d 1152, 1156 (Ala.2007). Further, although a petition for a writ of mandamus is the proper vehicle by which to seek review of the trial court’s denial of a summary-judgment motion on a statute-of-limitations ground in the context of fictitious-party practice, the writ will issue “‘only if undisputed evidence show[s] that the plaintiffs had failed to act with due diligence in identifying [the fictitiously named defendants] as the partfies] intended to be sued.’ ” Ex parte Stover, 663 So.2d 948, 952 (Ala.1995) (quoting Ex parte FMC Corp., 599 So.2d 592, 595 (Ala.1992) (emphasis added)).

The nurses contend that Rule 9(h), Ala. R. Civ. P., does not aid the Dulins because, they insist, the Dulins were “on notice of [the nurses’] identities by way of the medical records in [the Dulins’] possession.” Petition, at 4. They concede, however, that the medical records contain only the last names of the nurses and that two of those names were misspelled.

In that connection, Farragher’s name was apparently spelled without the “h.” More significantly, “Watson” appeared as “Watkins,” which, it should be noted, is an entirely different name than Watson. Additionally, it is clear to this Court that the name “Nail” cannot reasonably be made out from the flow sheet or the chart— except in the hindsight resulting from the Center’s response to the Dulins’ interrogatories.

Indeed, the nurses argue that, “even without those records [,] which [the Dulins] now contend[] were not clear or legible, [the Dulins] failed to meet [their] duty to exercise due diligence to inquire and learn the identities of the nurses prior to filing suit.” Petition, at 4 (emphasis added). Thus, the nurses’ mainstay argument is that, regardless of whether the hospital records placed the Dulins “on notice” of anything, the Dulins were dilatory — as a matter of law — in relying on formal discovery to gain the identities of the attending nurses. We disagree.

Although “[t]he conducting of formal discovery does not necessarily prove due diligence,” Ex parte Tate & Lyle Sucralose, Inc., 81 So.3d 1217, 1221 (Ala.2011), “it commonly is vital to demonstrating due diligence because it provides objective evidence of the plaintiffs case activity.” Ex parte Hensel Phelps Constr. Co., 7 So.3d 999, 1004 (Ala.2008).

The nurses rely specifically on Ex parte Mobile Infirmary Ass’n, 74 So.3d 424 (Ala. 2011); Ex parte Ismail, 78 So.3d 399 (Ala. 2011); and Ex parte Klemawesch, supra. Those cases are clearly distinguishable.

The issue in Ex parte Mobile Infirmary, for example, involved the proper legal name of the entity doing business as the Mobile Infirmary Medical Center. Mary H. Shaw was undisputedly admitted to the Mobile Infirmary Medical Center on January 29, 2008, 74 So.3d at 426, and, during her treatment there, she developed “pressure sores.” Id. She was transferred for treatment of the pressure sores to a facility operated by Infirmary Health Hospital, Inc., d/b/a Infirmary Long Term Acute Care Hospital, and then to a facility operated by Infirmary Health Hospital, Inc., d/b/a Infirmary West, where she died on March 23, 2008. Id. On April 7, 2008, Shaw’s medical records were mailed to her family. Appearing throughout the records as the facility where treatment was first provided were the words, “Mobile Infirmary Medical Center.”

On December 10, 2009, Ernest Shaw, as administrator of the estate of Mary Shaw, filed a complaint, naming as a defendant “Infirmary Health Systems, Inc., doing business as Mobile Infirmary West and as Infirmary West Long Term Acute Care Center.” The complaint also listed fictitiously named defendant “A,” described as that “person[ ], firm[ ], or corporation ] or other legal entit[y] who negligently failed to provide competent and timely medical care, treatment, evaluation, diagnosis, supervision, facilities and equipment in the treatment of Mary H. Shaw.” Although the body of the complaint contained nine paragraphs of facts alleging acts or omissions occurring at the place of Ms. Shaw’s first admission, it never mentioned Mobile Infirmary Medical Center by name. Instead, it referred to that entity as “the Mobile Infirmary Emergency Room,” and as “the hospital.”

Accompanying the complaint were interrogatories. However, none of the interrogatories sought information regarding the “correct legal name” of the Mobile Infirmary Medical Center. 74 So.3d at 427. On March 30, 2010, after the statutory limitations period for a wrongful-death action had expired, Shaw supplemented his interrogatories with a request for “information regarding the ‘proper legal entity for the hospital commonly known as the Mobile Infirmary Medical Center.’ ” Id. Infirmary Health Systems, Inc., responded on April 2, 2010, and on April 12, 2010, Shaw amended his complaint to substitute Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center (hereinafter referred to as “the Infirmary”) for fictitiously named defendant “A.”

The Infirmary petitioned this Court for a writ of mandamus vacating the trial court’s denial of its motion to dismiss the claims against it as time-barred. This Court granted the petition on the ground that Shaw had not acted with due diligence in discovering the identity of fictitiously named defendant “A.” 74 So.3d at 429.

The cases are clearly distinguishable. Despite the fact that the complaint in Ex parte Mobile Infirmary had alleged a basis for a cause of action against “the Mobile Infirmary Emergency Room” or “the hospital,” the plaintiff neither used, nor formally inquired about, the legal name of that entity until after the limitations period had expired. In other words, the Infirmary and its alleged role in the decedent’s demise were definitely known, notwithstanding some alleged ambiguity as to its formal designation. By contrast, the nurses’ identities were unknown at the time the complaint was filed. Indeed, there is little comparison between the notoriety and visibility of a large hospital and that of the individual members of its nursing staff. Here, interrogatories were propounded before the expiration of the limitations period; in Ex parte Mobile Infirmary, the limitations period had expired before relevant interrogatories were issued.

Ex parte Ismail and Ex parte Klemaw-esch are even less apposite. In Ismail, for example, it was undisputed that the plaintiffs, one of whom was allegedly injured while a patient at Highlands Medical Center, actually knew, based on medical records in their possession before filing their complaint, that Dr. Younus Ismail had been one of two treating physicians. 78 So.Sd at 407. Nevertheless, they did not attempt to substitute Dr. Ismail for a fictitiously named party until more than two years after the expiration of the limitations period. 78 So.3d at 403. Thus, the issue in that case was not one of identity, but, rather, the extent of involvement the physician, whose identity was known, had with the patient. Essentially, in other words, the plaintiffs were improperly, id. at 408, attempting to use Rule 9(h) to gain “additional time beyond the statutorily prescribed period within which to formulate causes of action.” Columbia Eng’g Int’l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala.1983). The issue in this case is, of course, one of true identity: who were the persons engaged in the procedure during which George Dulin was allegedly injured?

In Ex parte Klemawesch, the plaintiff “had been on notice of an unidentified [physician’s] signature below a progress note contained within medical records,” 549 So.2d at 64, that had been in her possession since before she filed her complaint. However, she had never filed a single interrogatory and, indeed, had waited 27 months after the complaint was filed to initiate any discovery at all. Id. Thus, her attempt to substitute Dr. Stephen Kle-mawesch for a fictitiously named party some 10 months after the expiration of the limitations period was disallowed. In this case, the Dulins initiated formal discovery simultaneously with the commencement of their action and substituted the nurses’ names less than five months after expiration of the limitations period. These cases do not aid the nurses.

As we noted before, the nurses insist that due diligence required the Dulins to have pursued some avenue of inquiry, aside from formal discovery. Although they concede that “[d]etective work was not required,” the nurses’ reply brief, at 14, the nurses contend that the Dulins should have attempted to elicit information from Susan Green, with whom Mrs. Dulin allegedly had a “friendly relationship,” or from “hospital administration.” Id.

We disagree. “Due diligence means ordinary, rather than extraordinary, diligence.” United States v. Walker, 546 F.Supp. 805, 811 (D.C.Hawai’i 1982) (emphasis added); see also State v. Gonzales, 151 Ohio App.3d 160, 171, 783 N.E.2d 903, 911-12 (2002). Short of what would amount to “detective work,” the adversarial process renders the nurses’ contentions unrealistic. See Oliver v. Woodward, 824 So.2d 693, 699 (Ala.2001) (amendment of the complaint after two and one-half years to substitute the name of the emergency-room physician who read an X-ray critical to the plaintiffs treatment was not untimely, where the identification of the physician’s name resulted only from extensive formal discovery).

Under the circumstances of this case, including (1) the Dulins’ prompt acquisition of the medical records, (2) the state of the names of the nurses in the room with George Dulin in his medical records, and (3) the promptness of discovery and of the substitution, we cannot say, as a matter of law, that the Dulins failed to exercise due diligence in substituting the nurses for the fictitiously named defendants. Otherwise stated, the nurses have not produced undisputed evidence of the absence of due diligence on the Dulins’ part. Consequently, they have failed to show that they are entitled to the writ of mandamus they seek.

III. Conclusion

For the above-stated reasons, the nurses have not shown a clear, legal right to a writ of mandamus directing the Calhoun Circuit Court to vacate its order denying their summary-judgment motion. The petition is, therefore, denied.

PETITION DENIED.

MALONE, C.J., and BOLIN and MAIN, JJ., concur.

MURDOCK, J., concurs in the result.

      . See Harmon v. Blackwood, 623 So.2d 726, 727 (Ala.1993) ("Rule 9(h) does not ... excuse the plaintiff's ignorance of a cause of action against the fictitiously named defendant; it only excuses, under certain circumstances, the ignorance of the name of the party against whom the plaintiff has a cause of action.” (emphasis added)).


author: MOORE, Judge.

text:
    Charles McGEE v. Karen McGee BEVILL.
    2101209.
    Court of Civil Appeals of Alabama.
    June 29, 2012.
    Certiorari Denied Nov. 9, 2012 Alabama Supreme Court 1111307.
    Charles McGee, pro se.

      Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellee.
   On Application for Rehearing

MOORE, Judge.

This court’s opinion of April 20, 2012, is withdrawn, and the following is substituted therefor.

Charles McGee (“the former husband”) appeals from a judgment of the DeKalb Circuit Court (“the trial court”) granting a Rule 60(b), Ala. R. Civ. P., motion filed by Karen McGee Bevill (“the former wife”) and awarding her an interest in certain real property. We dismiss the appeal.

Facts and Procedural History

According to the former wife, the former husband purchased certain real property located in Fort Payne (“the subject property”) at a land-sale auction in 1990, while the parties were still married, and, she says, he came home from the auction, informed her that he had purchased the subject property, and drove her by the subject property. The former wife testified that the former husband informed her that he had paid $205,000 for the subject property and that “David Hammonds would be in on it.” The former wife stated that the subject property adjoins property owned by Irby Harris and is located next to Interstate 59.

The former wife testified that she and the former husband separated in 1994. She admitted as evidence a portion of the former husband’s deposition, taken on June 28, 1994, pursuant to the parties’ divorce action, in which the former husband testified, in response to questions by the former wife’s attorney, that he did not have “some property adjoining an Irby Harris.” He stated in his deposition that he had gone into a venture with David Hammonds to purchase property, that he had never completed the transaction, and that the property had never been purchased. The former wife testified that her attorney had been referring to the subject property when questioning the former husband during his deposition. According to the former wife, after the former husband’s deposition was taken, she visited the probate office and discovered that no deed had been recorded transferring the subject property to the former husband. The former wife testified that there was no mention during the divorce trial of the subject property.

On June 14,1996, the trial court entered a divorce judgment divorcing the former wife and the former husband; among other things, that judgment stated:

“The Court finds that all real property titled in the name of Charles A. McGee, individually or jointly with his Former Wife, Karen E. McGee, is marital property subject to equitable division thereof according to the laws to the State of Alabama in the discretion of this Court. The Court has fashioned the property division provided for herein in the manner determined by the Court to be protective of the Former Wife, the minor children including their homestead; to conclude this matter within a reasonable time; and, to avoid continued controversies over the property acquired during the marriage of the parties.”

The divorce judgment awarded the former wife an interest in several specified parcels of real property, but it did not list the subject property. The divorce judgment awarded the former husband “all other real property titled in his name individually or jointly with [the former wife].”

According to the former wife, in 2006, her father telephoned her and informed her that a story on the front page of the Fort Payne Times-Journal, the local newspaper, indicated that the former husband had presented a deed for the subject property; that story, submitted as evidence by the former wife, was published on January 26, 2006. The former wife also submitted as evidence a copy of the deed, which was executed on September 10, 1990, and signed by David Hammonds, conveying a one-half interest in the subject property to the former husband. The deed was recorded on January 23, 2006.

On February 6, 2006, the former wife filed a complaint in the trial court requesting, among other things, that the trial court partially set aside the parties’ divorce judgment and award her an equitable interest in the subject property or any proceeds derived from the sale of the subject property, pursuant to Rule 60(b), Ala. R. Civ. P. On March 24, 2006, the former husband filed an answer to the former wife’s complaint, asserting, among other things, that the action was barred by the statute of limitations, that the action was time-barred by Rule 60(b), that the former wife had been aware of his ownership in the subject property at all times, that he had referred to an unrelated negotiation in his deposition during the parties’ divorce case, and that he had never denied his interest in the subject property.

The DeKalb circuit-court judges recused themselves from hearing the present case based on the former husband’s having practiced for years as an attorney before them. On October 18, 2006, the Chief Justice of the Alabama Supreme Court assigned the case to Allen Millican, the presiding circuit judge of Etowah County. On August 18, 2010, the former wife filed a motion requesting the trial court to set the case for a trial; in that motion, the former wife indicated that, in an unrelated action, the DeKalb Circuit Court had declared the former husband “to have an undivided one-half interest in the real property which is the subject of this litigation” and that that judgment was final.

The trial court conducted a trial in Gadsden, which is located in Etowah County, on August 4, 2011; the former husband did not attend. On August 8, 2011, the trial court entered a judgment that stated, in pertinent part:

“1. The Court finds that the [former husband] fraudulently misrepresented and fraudulently concealed his ownership interest in the real property described in the deed attached as Exhibit A to this Judgment (‘the subject property) during the divorce proceedings between the parties in the Circuit Court for DeKalb County, Alabama, Case No. DR-94-098 (‘the divorce case’), in order to avoid an equitable division of this marital property in the divorce. The [former husband’s] fraud during the divorce, together with his failure to record his 1990 deed to the subject property until January 2006, prevented the [former wife] from discovering [his] fraud until that date, at which time the [former wife] immediately filed her Complaint.
“2. It appearing that the [former husband’s] fraud prevented the Court in the divorce case from making an equitable division of the subject property, the Court hereby grants the relief requested by [the former wife] in her complaint and divides said property equally between the [former wife] and the [former husband]. [The former wife] is hereby awarded an undivided one-half interest in the [former husband’s] undivided one-half interest in the subject property, and any provision of the judgment in the divorce case which could be construed to have awarded this property to the [former husband] during the divorce is declared of no effect.
“3. In aid of this Judgment, the Clerk or Register of DeKalb County, Alabama, is ordered to execute a Clerk’s or Register’s Deed conveying an undivided one-half interest in the [former husband’s] undivided one-half interest in the subject property to the [former wife].... ”

The trial court denied all other relief requested by the parties and taxed costs against the former husband.

On September 19, 2011, the former husband filed a notice of appeal to this court. Also on September 19, 2011, the former husband purported to file a “motion to alter, vacate or amend and motion for new trial” under Rule 60(b).

Discussion

The former husband raises two issues on appeal. First, he asserts that the trial court erred in granting the former wife’s motion to amend or modify the parties’ divorce judgment “due to the fact that the undisputed evidence was that the action was not timely filed as alleged in the answer filed in response to the complaint and was not the type of fraud to accord relief under the facts.” Second, he argues that the judgment is void because the trial court held the trial outside DeKalb County. We pretermit consideration of the second issue because we find the first issue dispositive.

Rule 60(b) provides, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.... The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.... This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3)years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

The former wife filed an independent action seeking relief from the judgment. She asserts that the former husband committed “fraud upon the court” by perjuring his testimony to lead the former wife to believe that he had not acquired an interest in the subject property during their marriage.

In Hall v. Hall, 587 So.2d 1198 (Ala.1991), this court stated:

“ ‘Fraud on the court’ has been defined as ‘fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.’ 7 J. Moore, Moore’s Federal Practice § 60.38 (2nd ed.1990). Such fraud must be ‘extrinsic,’ that is, perpetrated to obtain the judgment, rather than ‘intrinsic.’ Brown v. Kingsberry Mortgage Co., 349 So.2d 564 (Ala.1977). In discussing ‘fraud on the court,’ the Eleventh Circuit Court of Appeals stated:
“ ‘Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25 L.Ed. 93 (1878); see also Great Coastal Express [v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America ], 675 F.2d [1349] at 1358 (4th Cir.1982); Wood v. McEwen, 644 F.2d 797 (9th Cir.1981). Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 425, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of perjury in the original action.
“ ‘ “Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible.... Fraud on the court is therefore limited to the more egregious forms of subversion of the legal process, ... those we cannot necessarily expect to be exposed by the normal adversary process.”
'Great Coastal Express, 675 F.2d at 1357.’
“Travelers Indemnity Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir.1985).”

587 So.2d at 1200-01.

The former wife cites United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878), for the following proposition:

“Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.”

98 U.S. at 65-66. The former wife argues that the former husband prevented her from “exhibiting fully [her] case” by deceiving her regarding his interest in the subject property and thereby causing the judge in the divorce case to divide their marital estate without reference to the subject property. We note, however, that, directly following the above-quoted language in Throckmorton, the United States Supreme Court stated: “On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or peijured evidence, or for any matter which was actually presented and considered in the judgment assailed.” 98 U.S. at 66 (emphasis added). Thus, the discussion in Throckmorton is consistent with that in Hall.

The former wife asserts also that, because the former husband was a practicing attorney at the time he misrepresented his ownership of the subject property, his perjury constituted a “fraud on the court” in accordance with the definition stated in Hall. The United States Supreme Court has recognized that an attorney may function as an “officer of the court” in some capacities, while not in others. See Imbler v. Pachtman, 424 U.S. 409, 431 n. 33, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (noting prosecutor’s separate functions as an “administrator” and as an “officer of the court”). We agree also with the United States District Court of Maine in Glenwood Farms, Inc. v. O’Connor, 666 F.Supp.2d 154, 179-80 (D.Me.2009), in its decision declining to interpret “ ‘attorney’ to include anyone -with a bar membership, notwithstanding their role as a witness, party, or representative of a party,” and inferring that, “whereas the involvement of an attorney in a representative capacity impairs the ordinarily adequate mechanisms of discovery and cross-examination, the involvement of attorneys as witnesses and parties does not.” We conclude, therefore, that the former wife’s argument is without merit and that the former husband’s profession as an attorney does not necessitate that any perjury committed by him as a party rises to the level of fraud upon the court.

In Ex parte Third Generation, Inc., 820 So.2d 89, 90 (Ala.2001), the Alabama Supreme Court observed that “perjury is not a fraud on the Court, ... but intrinsic fraud, which is a Rule 60(b)(3)[, Ala. R. Civ. P.,] ground.” A Rule 60(b)(3) motion must be filed within four months of the entry of the judgment being assailed. Id. The former wife cannot rely on any longer limitations period applicable to independent actions based on fraud upon the court. Because the former wife’s Rule 60(b)(3) motion was not filed within four months of the entry of the parties’ divorce judgment, we conclude that the motion was not timely filed.

On rehearing, the former wife argues that this conclusion is inconsistent with the holding in Brice v. Brice, 340 So.2d 792 (Ala.1976). We disagree. In Brice, the circuit court that had earlier divorced the parties and divided their property set aside its divorce judgment based on a specific finding that Mrs. Brice had defrauded the court by failing to disclose a number of debts for which Mr. Brice generally had been made responsible in the judgment. On appeal, this court did not modify nor question the factual findings of the circuit court that Mrs. Brice had practiced a fraud upon the court. 340 So.2d at 794. Thus, the appeal concerned solely a question of law, namely whether Mr. Brice had timely filed a motion under Rule 60(b) to set aside the divorce judgment that had been procured by fraud upon the court. This court decided that question adversely to Mr. Brice. On certiorari review, our supreme court reversed this court’s judgment, reasoning that the Rule 60(b) motion should be considered an independent action that was filed well within the three-year period set out in the next to last sentence of Rule 60(b). 340 So.2d at 794-95.

In this case, on the other hand, the former husband has consistently maintained that he did not commit a fraud upon the court by failing to disclose his interest in the subject property. His primary issue on appeal concerns whether his alleged failure to disclose his interest in the subject property during the original litigation amounts to “fraud upon the court” that would justify a Rule 60(b) independent action to set aside the divorce judgment dividing the parties’ marital property. As shown above, any such perjury would not constitute fraud upon the court, so this court does not accept the trial court’s finding in that regard. Moreover, although the former wife asserts that “[t]here is no legal difference between the wife’s fraudulent written statements in Brice concerning all her debts, and the former husband’s fraudulent oral statements in this case concerning all his real estate,” we note that the former was asserted in Brice in a settlement agreement that was presented to the court for approval while, in the present case, the former husband’s perjury was committed against the backdrop of a contested trial. Thus, the opportunity to “root out” the perjury, see Hall, supra, was far more available in the present case and, unlike in Brice, the subject of the former husband’s testimony, i.e., the subject property, was made an issue during his deposition testimony. We conclude, therefore, that our holding in this case does not conflict with the holding in Brice, and we maintain our conclusion that the former wife’s motion was not timely filed.

“A trial court lacks jurisdiction to consider an untimely Rule 60(b)[, Ala. R. Civ. P.,] motion.” Noll v. Noll, 47 So.3d 275, 279 (Ala.Civ.App.2010). Thus, the trial court lacked jurisdiction to enter its August 8, 2011, judgment in the present case. “A judgment entered without jurisdiction is void.” Id. Because “[a]n appeal will not lie from a void judgment,” Harvey v. City of Oneonta, 715 So.2d 779, 781 (Ala.1998), we dismiss this appeal, albeit with instructions to the trial court to vacate its August 8, 2011, judgment.

APPLICATION GRANTED; OPINION OF APRIL 20, 2012, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED WITH INSTRUCTIONS.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . The DeKalb circuit-court judges had similarly recused themselves from hearing the parties’ original divorce case.

      . Because Judge Millican was sitting as a judge for the DeKalb Circuit Court, any references hereinafter to "the trial court” continue to be references to the DeKalb Circuit Court.

      . The former husband asserts in his brief to this court, in the section entitled "statement of the case,” that consideration of his Rule 60(b) motion "was stayed by the filing of this appeal." We disagree. In C.T.J. v. A.S.J., 816 So.2d 61, 63 n. 1 (Ala.Civ.App.2001), this court stated: "The husband filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., on the same day as his notice of appeal; however, that filing is a nullity because leave of this court was not obtained. See Glenn v. Glenn, 740 So.2d 417 (Ala.Civ.App.1999).” Similarly, the former husband failed to obtain leave of this court to file his Rule 60(b) motion; thus, that motion is a nullity.

      . To the extent the former wife asserts that the former husband failed to raise before the trial court his argument that the former wife’s complaint was not timely filed pursuant to Rule 60(b), we note that the former husband specifically asserted in his answer that the former wife’s complaint was time-barred by Rule 60(b); thus, the former husband did raise the issue before the trial court.


text:
    Vicki Joan Brunson STROEKER, Katie Brunson, and Angela M. Brunson v. Judith HAROLD.
    2101192 and 2110822.
    Court of Civil Appeals of Alabama.
    Sept. 14, 2012.
    Certiorari Petitions Denied Nov. 9, 2013 Alabama Supreme Court 1120003 and 1120004.

      Mary Beth Mantiply of Mantiply & Associates, Montrose, for appellants.
    Richard W. Vollmer III and James B. Vollmer, Mobile, for appellee.
   On Application for Rehearing in Case No. 2101192 and on Original Submission in Case No. 2110822

MOORE, Judge.

On April 13, 2012, this court issued an opinion in appeal no. 2101192, affirming a summary judgment entered by the Domestic Relations Division of the Mobile Circuit Court (“the domestic-relations court”) against Vicki Joan Brunson Stroeker, Katie Brunson, and Angela M. Brunson (sometimes hereinafter referred to collectively as “the appellants”). The appellants subsequently applied for rehearing. While considering the application for rehearing, this court discovered that the appellants had also appealed a judgment entered by the Mobile Circuit Court involving the same general subject matter to the Alabama Supreme Court. This court sua sponte requested that the supreme court transfer that appeal to this court; that request was granted, pursuant to § 12-2-7(6), Ala.Code 1975. The second appeal was docketed as appeal no. 2110822 and has now been consolidated with appeal no. 2101192 for the purpose of rendering one opinion. Accordingly, our April 13, 2012, opinion on original submission in appeal no. 2101192 is withdrawn, and the following is substituted therefor.

Factual and Procedural Background

On April 19, 1993, the domestic-relations court entered a judgment divorcing Stroeker (“the former wife”) from Joseph Talmadge Brunson (“the former husband”). The divorce judgment provided, in pertinent part:

“[The former husband] shall name the minor children [Katie and Angela Brun-son] as beneficiaries on his present life insurance program and shall furnish such proof that the children have been so designated by furnishing a copy of the designation to [the former wife] within thirty days from the date of this Judgment.”

On September 22, 1993, the domestic-relations court purported to enter an amended judgment confirming a June 9, 1993, agreement between the former husband and the former wife; that amended judgment did not modify the foregoing provision in any respect. In compliance with the divorce judgment, the former husband designated Katie Brunson and Angela Brunson (sometimes hereinafter referred to as “the children”), then ages six and three years, as the beneficiaries of a whole-life insurance policy paying $100,000 upon his death.

The former wife’s family owns an insurance company, and the former wife’s father acted as the agent to secure the former husband’s life-insurance policy. After the former husband went to prison in 1995, the former wife’s father paid most of the premiums to maintain the policy. On July 31, 2009, over a year after the younger child had reached the age of majority, the former husband changed the beneficiary on the life-insurance policy from the children to Judith Harold, with whom he had had a long-standing relationship.

The former husband contracted terminal cancer at some point. On March 10, 2010, the former wife filed in the domestic-relations court a petition for contempt against the former husband, alleging that he had contemptuously violated the life-insurance provision of the divorce judgment and requesting that that court order the former husband, who was dying from cancer, to immediately reinstate the children as the beneficiaries on his life-insurance policy. The former husband died within hours after the contempt petition was filed; the former wife notified the domestic-relations court the next day of the former husband’s death and requested that the proceeds of the life-insurance policy be frozen and paid into the court. The former wife also moved to add the children as plaintiffs and to substitute Frank Kruse, the administrator of the former husband’s estate, as the defendant; that motion was granted.

In April 2010, Harold moved to be added as a party to the action. Although the former wife objected to that motion, asserting that Harold was not a proper party in the contempt action and that she lacked standing, the domestic-relations court granted Harold’s motion. Also in April 2010, Kruse and Harold both filed answers asserting that the life-insurance provision in the divorce judgment no longer applied after the children reached the age of majority. Harold asserted that the former husband had validly designated her as the beneficiary and requested that the domestic-relations court declare that she was entitled to the life-insurance proceeds. The appellants replied that the life-insurance provision was the product of an agreement between the former wife and the former husband, that the former husband had drafted the agreement, and that it should be construed so that it did not expire when the children reached the age of majority.

On May 10, 2010, OM Financial Life Insurance Company, the insurer that issued the life-insurance policy covering the former husband, filed, pursuant to Rule 22, Ala. R. Civ. P., a complaint for interpleader in the civil division of the Mobile Circuit Court (“the circuit court”). The insurer asserted that it was aware of the controversy between the appellants and Harold and that it had no interest in the proceeds of the life-insurance policy other than to pay the proper beneficiary or beneficiaries; it requested a judgment declaring the proper beneficiary or beneficiaries. The insurer named as defendants to its inter-pleader action the appellants and Harold.

Harold answered the complaint requesting that the circuit court declare her the proper beneficiary. The appellants answered the complaint and sought discovery relevant to Harold’s claim to the insurance proceeds. The appellants challenged the validity of the 2009 beneficiary designation on the former husband’s life-insurance policy, asserting that it had been fraudulently made or was a forgery, and they requested a trial on that claim. According to the State Judicial Information System, the cause was scheduled for a bench trial in August 2011.

In January 2011, the appellants and Harold filed competing summary-judgment motions in the domestic-relations court. After receiving oral argument on the motions, the domestic-relations court entered an order on May 4, 2011, denying the appellants’ summary-judgment motion and granting Harold’s summary-judgment motion. The domestic-relations court ruled that Harold was entitled to the life-insurance proceeds as a matter of law and ordered that those proceeds should be paid to Harold. The appellants immediately filed a motion to vacate the May 4, 2011, judgment.

While the appellants’ postjudgment motion was pending in the domestic-relations court, the circuit court, on July 18, 2011, ordered the insurer to deposit the life-insurance proceeds with the clerk of the circuit court. Upon the insurer’s depositing the insurance proceeds with the clerk, the circuit court then dismissed the insurer from the action, with prejudice. On July 29, 2011, the domestic-relations court denied the appellants’ postjudgment motion. On August 1, 2011, the appellants designated their expert witness to testify at the trial in the circuit court on the issue of the authenticity of the beneficiary designation. Shortly thereafter, Harold moved the circuit court to enforce the May 4, 2011, judgment entered by the domestic-relations court, asserting that the circuit-court action was barred by the doctrines of res judicata and/or collateral estoppel. On September 9, 2011, the circuit court granted Harold’s motion to enforce the domestic-relations court’s judgment, without explanation. The appellants filed their notice of appeal of the domestic-relations court’s May 4, 2011, judgment that same day.

On September 15, 2011, the appellants moved to alter, amend, or vacate the circuit court’s judgment. The circuit court denied that motion on September 30, 2011, and the appellants timely appealed that judgment to our supreme court, which as noted earlier, subsequently transferred the appeal to this court.

Analysis

I. The Estate is not a Proper Appellee

We begin our analysis by dismissing Kruse, the administrator of the former husband’s estate, as an appellee. As stated above, the appellants filed a contempt action against the former husband before his death and subsequently moved to substitute the administrator of his estate as a defendant. Although the domestic-relations court granted that motion, it appears from the record that the domestic-relations court did not consider the jurisdictional issue of whether a contempt action can proceed against the estate of a deceased person.

Our research has revealed only one case directly on point, an unreported opinion from the Superior Court of Connecticut, Diana v. Diana, (No. FA9969335, Sept. 14, 2001) (Conn.Super.2001) (not reported in A.2d). In Diana, a wife sued her husband for a dissolution of the marriage, which prompted the automatic issuance of an interlocutory order preventing either party from changing the beneficiaries on his or her life-insurance policies. The husband died while the action was pending; the wife subsequently discovered that the husband had removed her as the beneficiary of his life-insurance policy. The wife moved the court to substitute the estate of the husband as a defendant so she could pursue a contempt action against the estate. The Superior Court of Connecticut said:

“A substitute defendant cannot vicariously be found in contempt of court for violating court orders directed to the deceased defendant. In this case, even if the court found the defendant husband to have been in civil contempt, the executor of the defendant’s estate does not have the authority to change the beneficiaries of the decedent’s life insurance policy nor redistribute the death benefits paid to the beneficiaries by the insurance company. ‘The proceeds of a life insurance policy made payable to a named beneficiary are not assets of the estate, but belong solely to the beneficiary.’ 31 Am.Jur.2d, Executors and Administrators 257, § 509 (1989). See General Statute § 45a-347. Insurance death benefits are paid by the insurer directly to the named beneficiaries of the policy. ‘It follows, then, that satisfying the beneficiary is the contractual responsibility of the insurer not the fiduciary responsibility of the [executor].’ Equitable Life [Assurance] Society of the United States v. Sandra Porter-[Englehart], 867 F.2d 79 (1st Cir.1989).”

Contempt actions have one of two purposes, either punishment for deliberate disobedience to court orders or coercion to force compliance with court orders. T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App.2002). We have not located any Alabama caselaw that allows the estate of a deceased person to be punished for alleged contemptuous acts committed by the deceased person before his or her death. Furthermore, like in Connecticut, in Alabama life-insurance proceeds made payable to parties other than the deceased person, the estate of the deceased person, or the personal representative of the estate of the deceased person do not become a part of the estate. See Rau v. Rau, 429 So.2d 593, 595 (Ala.Civ.App.1982) (“[B]y virtue of § 27-14-29, [Ala.] Code 1975, the proceeds of the policy of insurance in this case would not be a part of the estate nor subject to creditor’s claims.”). Kruse, as the administrator of the former husband’s estate, has no interest in the life-insurance policy or the proceeds therefrom. See First Nat’l Bank of Mobile v. Pope, 270 Ala. 202, 205, 117 So.2d 174, 176 (1960) (holding that estate of insured was not indispensable party in dispute over insurance proceeds between beneficiary and purported constructive trustees because “[t]he personal representative has no [ownership] interest in the policies as to require that he be made a party”). Thus, the domestic-relations court could not have, through its contempt powers, compelled Kruse to reform the beneficiary designation or to pay the children the life-insurance proceeds.

In short, the domestic-relations court did not have jurisdiction to find the estate of the former husband in contempt for any actions undertaken by the former husband during his lifetime with regard to the beneficiary designation. Thus, because the estate has no interest in the life-insurance proceeds, Kruse is hereby dismissed as a party to this appeal.

II. The Domestic-relations CouH’s Judgment

The appellants argue at length in their brief to this court in appeal no. 2101192 that the life-insurance provision in the divorce judgment should be viewed as part of a voluntary property-settlement agreement between the former wife and the former husband. In Williams v. Williams, 276 Ala. 43, 158 So.2d 901 (1963), the supreme court held that such an agreement, when incorporated into a divorce judgment, could create a vested equitable interest in life-insurance proceeds. The record in this case shows, however, that, following an ore tenus hearing, the domestic-relations court unilaterally imposed the life-insurance provision as part of its April 19, 1993, divorce judgment. The former husband and the former wife attempted to modify that judgment by an agreement dated June 9, 1993, which the domestic-relations court purported to confirm on September 22, 1993; however, the agreement did not alter any of the language of the life-insurance provision. The original provision has remained intact since its inception; the subsequent agreement of the former wife and the former husband to the life-insurance provision amounts merely to their acknowledgment that they must abide by the terms of the original divorce judgment and cannot be characterized as a modification of those terms by agreement. Thus, we conclude that Williams is not dispositive of this case.

When a trial court in a domestic-relations action orders an obligor spouse to designate children of the marriage as the beneficiaries of a life-insurance policy, the sole purpose of that provision is to secure the payment of child support. In Whitten v. Whitten, our supreme court noted that “[mjinor children are commonly designated as beneficiaries of life insurance policies as ‘an aspect of child support’ pursuant to an order of divorce.” 592 So.2d 183, 186 n. 4 (Ala.1991) (quoting H. Clark, Jr., The Law of Domestic Relations in the United States 718-19 (2d ed.1988), and citing Note, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978)). Based in part on that language in Whitten, this court, in Jordan v. Jordan, 688 So.2d 839, 842 (Ala.Civ.App.1997), held that a trial court in a domestic-relations action does not have to state its reasons for mandating life-insurance provisions like the one at issue in this case “because the reason will always be identical. That reason, quite obviously, is to insure that minor children will receive support in the event the supporting parent dies.”

Under Alabama law, with two notable exceptions inapplicable here, see Ex parte Bayliss, 550 So.2d 986, 991 (Ala.1989) (authorizing courts to award postminority-ed-ucational support), and Ex parte Brewing-ton, 445 So.2d 294 (Ala.1983) (allowing postminority support for disabled children), a parent generally does not owe child support past the date when a child attains the age of majority. In Whitten, supra, our supreme court seized on that point to reverse a circuit court’s judgment that had negated the husband’s change of beneficiary from the child of his former marriage to other relatives. Based on a default divorce judgment, the husband in Whitten was required to ‘“keep in full force and effect all life insurance on his life with the parties’ minor child as the irrevocable beneficiaries [sic] of such insurance.’ ” 592 So.2d at 184. The supreme court held that the life-insurance provision amounted to a child-support award that did not create an indefeasible, equitable interest in the proceeds of the life-insurance policy that lasted past the point when the child reached the age of majority. The supreme court therefore reversed the judgment, stating: “[T]he trial court’s award of the proceeds to [the child] after he had attained the age of majority in effect amounted to an [unauthorized] award of postminority support.” 592 So.2d at 186; see also Brown v. Brown, 604 So.2d 365, 369 (Ala.1992) (holding that constructive trust in favor of the minor child applied to life-insurance proceeds based on a provision in the divorce judgment that obligated the father to designate the child as the irrevocable beneficiary during child’s minority).

In this case, the life-insurance provision at issue states only that the former husband “shall name the minor children as beneficiaries on his present life insurance”; the provision does not require that the former husband designate the children as irrevocable beneficiaries. The life-insurance provision does not expressly state that it lasts only through the minority of the children, and the appellants argue that the term “minor” could be reasonably construed as only describing the children, not as limiting the period of their beneficiary status. However, Whitten implies that all life-insurance provisions like the one in this case remain inviolate only during the minority of the benefited children unless the judgment expressly provides that the life insurance is intended to secure postmi-nority Bayliss or Brewington support, which is not the case here.

The appellants also state that the former wife subjectively believed the children would remain the beneficiaries of the life-insurance policy after their minority ended and that the former wife’s family acted on that belief by paying the premiums due on the policy. The appellants argue that this parol evidence creates a question of fact as to the intent of the former husband and the former wife in using the language contained in the life-insurance provision. However, the domestic-relations court, not the former husband and the former wife, crafted the life-insurance provision, and their interpretation of the terms of that provision are immaterial. If a judgment is ambiguous, a court can consider its meaning in light of the entire record, but it cannot resort to parol evidence from the parties as if it was construing a contract to ascertain their understanding and intent. Reading v. Ball, 291 S.C. 492, 496, 354 S.E.2d 397, 399 (Ct.App.1987). More to the point, we find that, under Whitten, the divorce judgment unambiguously required the former husband to name the children as beneficiaries during their minority, so there is no need to resort to extrinsic evidence to determine the meaning of its terms.

The undisputed evidence shows that both children had attained the age of majority long before the former husband changed the beneficiary designation of the life-insurance policy. According to Whit-ten, which we are required to follow, see § 12-3-16, Ala.Code 1975, whatever equitable interest the children obtained in the life-insurance policy ended on their 19th birthdays. Thereafter, the former husband was free to change his beneficiary designation without violating the life-insurance provision in the divorce judgment. Consequently, once the children attained the age of majority, the domestic-relations court lacked jurisdiction over the life-insurance proceeds. See Whitten, 592 So.2d at 186 (“Because the trial court’s equitable jurisdiction over the proceeds of the policy terminated on June 21, 1990, the date Jeffrey Whitten attained the age of majority, William Whitten was free, thereafter, to make any disposition of his policy that he deemed proper.”). Thus, its judgment purporting to award the life-insurance proceeds to Harold is void.

“An order entered by a trial court without jurisdiction is a nullity.” J.B. v. A.B., 888 So.2d 528, 532 (Ala.Civ.App.2004). “A void judgment will not support an appeal, and ‘an appellate court must dismiss an attempted appeal from such a void judgment.’ ” Colburn v. Colburn, 14 So.3d 176, 179 (Ala.Civ.App.2009) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008)). Accordingly, we dismiss appeal no. 2101192.

III. The Circuit Court’s Judgment

The circuit court entered a final judgment in the interpleader action by awarding Harold the life-insurance proceeds. The record indicates that the circuit court based its judgment solely on Harold’s contention that the domestic-relations court had already decided that she was the proper beneficiary of the life-insurance policy and that the doctrine of res judicata or the doctrine of collateral estop-pel prevented relitigation of that issue. However, as explained above, the domestic-relations court lacked jurisdiction to determine that controversy. The doctrines of res judicata and collateral estoppel apply only when a prior judgment was rendered by a court of competent jurisdiction. See, e.g., Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala.2007) (reciting the elements of res judicata and collateral estoppel and recognizing that an essential element of both doctrines is that the claim or issue has been or could have been decided in a prior action by a court of competent jurisdiction). Because the domestic-relations court lacked jurisdiction, its judgment could not have any preclusive effect and the circuit court erred in relying on it.

Therefore, we reverse the judgment in appeal no. 2110822, and we remand the cause for further proceedings, including the adjudication of whether the former husband did, in fact, properly change the beneficiary designation on the life-insurance policy, an issue not yet decided by any court.

2101192 — APPLICATION GRANTED; OPINION OF APRIL 13, 2012, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

2110822 — REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., and BRYAN, J., concur in the result, without writings.

      . The record indicates that the insurer deposited the life-insurance proceeds on July 29, 2011, but that the circuit court acknowledged the insurer’s action and dismissed it from the action on July 16, 2011. The record does not explain the discrepancy.

      . Harold then amended her answer to assert the affirmative defenses of res judicata and collateral estoppel, and she supplemented her motion to enforce the domestic-relations court's judgment.

      . We note that the domestic-relations court did not rule on the contempt motion against the estate, which ordinarily would render its judgment nonfinal. However, because any ruling on the contempt motion would have been void for lack of jurisdiction anyway, we consider the summary judgment to have disposed of all matters properly pending before the domestic-relations court.
      We also note that, on May 11, 2010, the appellants filed a motion to compel the estate to pay an alleged child-support arrearage of $120,000, which the domestic-relations court did not adjudicate. However, only a probate court has jurisdiction over a child-support-arrearage claim against the estate of a deceased obligor parent. See generally Smith v. Estate of Baucom, 682 So.2d 1065 (Ala.Civ.App.1996). Hence, the failure of the domestic-relations court to rule on that claim does not render its judgment nonfinal.

      . Harold asserts that the appellants have raised this argument for the first time on appeal and, thus, that this court may not consider it. See Shiver v. Butler Cnty. Bd. of Educ., 797 So.2d 1086, 1088 (Ala.Civ.App.2000) ("Generally, a reviewing court cannot consider arguments made for the first time on appeal.”). We note, however, that the appellants asserted in their postjudgment motion that the provision at issue was not in the nature of a child-support award, as Harold has asserted. " ' "[A] trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so.” ’ ” Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala.2010) (quoting Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So.2d 668, 678 (Ala.2007), quoting in turn Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988)). In denying the appellants’ postjudgment motion, the domestic-relations court indicated that it had considered the arguments presented by counsel for the parties at the hearing on the appellants’ post-judgment motion. We will therefore consider the appellants' argument on appeal.

      . We further note that, if the life-insurance provision was properly considered part of a marital-property division, as the appellants argue, the domestic-relations court would have lost jurisdiction to modify that provision after 30 days. Dunn v. Dunn, 12 So.3d 704, 709 (Ala.Civ.App.2008). Additionally, “parties to a divorce decree may not change or modify the decree merely by an agreement between themselves.” Holland v. Holland, 406 So.2d 877, 879 (Ala.1981). Hence, any purported modification by the order entered on September 22, 1993, would have been ineffective.

      . We note that, in Whitten, the supreme court did not have before it a case in which the deceased obligor had died leaving a substantial child-support arrearage, as has been alleged in this case. Nevertheless, we do not consider whether applying Whitten to this case thwarts the purpose of the life-insurance provision by leaving an arrearage unsecured. The appellants have not argued that point in their brief to this court. See Hood v. Hood, 72 So.3d 666, 677 (Ala.Civ.App.2011) ("Because the wife has not argued that issue on appeal, it is waived.”).

      . We find the procedural posture of this case distinguishable from that of Turenne v. Turenne, 884 So.2d 844 (Ala.2003), in which the former husband brought an action against his former wife and several business entities controlled by her. The former husband in Tur-enne alleged contract and tort claims stemming from an alleged breach by the former wife of a settlement agreement that had been entered between the parties addressing how they would divide their various business interests in their divorce action; the parties’ settlement agreement had been incorporated and merged into their divorce judgment, which was entered by the Domestic Relations Division of the Montgomery Circuit Court. Id. at 847.
      In Turenne, when both the domestic-relations division and the civil division dismissed the former husband’s claims, finding that they had been filed in an improper forum, the former husband appealed. Id. at 846. Our supreme court concluded that the former husband’s claims were properly heard in the domestic-relations division rather than in the civil division because the claims all arose from alleged breaches of the parties' property division as stated in a marital separation agreement, which had been merged into the divorce judgment entered by the domestic-relations division. Id. at 849. Our supreme court stated: "[Jjurisdiction of all matters arising from the divorce judgment, including the provisions of the marital settlement agreement, remains with the domestic relations division ... which, in a proper exercise of its jurisdiction, had entered a judgment divorcing [the parties].” Id.

      We find no conflict between Turenne and our holding in this case. The parties and the issues raised in Turenne were unquestionably within the subject-matter jurisdiction of the Domestic Relations Division of the Montgomery Circuit Court. The domestic-relations division retained jurisdiction to enforce its judgment, which the former husband alleged had been breached. See, e.g., Rau v. Rau, supra; Pittman v. Pittman, supra; Ex parte Thomas, 54 So.3d at 362 n. 5; and Jardine v. Jardine, 918 So.2d 127, 131 (Ala.Civ.App.2005) ("[A] trial court has the inherent authority to interpret, implement, or enforce its own judgments.”). In this case, however, the life-insurance provision was included in the divorce judgment for the sole purpose of securing the former husband’s child-support obligation. Upon the domestic-relations court's determining that the child-support obligation had expired, that court had no further authority over the former husband's life-insurance policy or the proceeds of that policy. Whitten, supra.

      . Based on our consolidation of appeal nos. 2101192 and 2110822, we deny Harold's motion to strike. Based on our resolution of the issues asserted in appeal no. 2110822, we deny Harold's motion for damages, filed pursuant to Rule 38, Ala. R.App. P.