text:
    Juanteaz MCDONALD a/k/a Juanteaz D. McDonald a/k/a Juantez McDonald a/k/a Juantez D. McDonald, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00816-COA
    Court of Appeals of Mississippi.
    09/19/2017

      ATTORNEY FOR APPELLANT: CHOKWE ANTAR LUMUMBA
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLIN-TON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Juanteaz McDonald was indicted on two counts of armed robbery, Although he was repeatedly informed of his trial date, McDonald did not appear on the morning of trial; so the Madison County Circuit Court conducted the jury trial in absentia. See Miss. Code Ann., § 99-17-9 (Rev. 2015). McDonald was found guilty on both counts and received concurrent fifty-year sentences in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and five years of supervised probation. Appealing his convictions, McDonald claims that the circuit court erred in proceeding to. trial in his absence and that he was subjected to ineffective assistance of counsel. We affirm the judgment, finding the circuit court did not abuse its discretion in proceeding with the trial in absentia, and we dismiss without prejudice McDonald’s claims of ineffective assistance of counsel.

FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2014, McDonald was indicted, along with three accomplicés, for two counts of armed robbery. His case was set for trial on December 1, 2014, and McDonald was released on bond. On November 14, 2014, McDonald appeared before the circuit court and informed the court that he wished to proceed to trial. At a pretrial conference on November 17, 2014, the circuit judge directed McDonald to “stay in touch with [his] attorney and be prepared to go to trial on December the 1st or at some point in time later this week.” McDonald appeared on December 1, but the trial wás delayed, and he was told to come back the following morning at 9 a.m.

- ¶ 3. On December 2, however, McDonald failed to appear in ■circuit court. The judge learned that the Jackson Police Department had issued two additional warrants for McDonald a week earlier and. that McDonald was under federal investigation. Defense counsel had contacted McDonald’s mother, who told her that when McDonald left the house that morning, he said he was not going to court. The circuit judge concluded that McDonald had “willfully, voluntarily and deliberately absented himself from the trial” and, therefore, “waived his right to be present.”. Defense counsel objected and moved for a continuance, which the court denied, and the trial proceeded in absentia. The jury found McDonald guilty on both counts and, on February, 2, 2015, the court sentenced him to fifty years for each count in the custody of the MDOO, with ten years suspended, five years of supervised probation, and the sentences to run concurrently.

¶ 4. McDonald filed a motion for a judgment notwithstanding the verdict or a new trial, which asserted several claims of error, including the trial court’s decision to conduct the trial in McDonald’s absence. The court held a hearing on April 27, 2015, and subsequently denied the motion. McDonald now appeals,

DISCUSSION

I. Whether the circuit court erred in proceeding with the jury trial in McDonald’s absence.

¶ 5. McDonald argues that because he had demonstrated a desire to participate in all stages of the trial process, the trial court erred in assuming his absence on the day of trial “evinced his willful and wanton disregard for the trial process.” He further contends he was “prejudiced by the [cir-euit] court’s decision to proceed to trial in his absence.”

¶ 6. A circuit court’s decision to try a defendant in absentia is reviewed under an abuse-of-discretion standard. Haynes v. State, 208 So.3d 4, 6 (¶ 10) (Miss. Ct. App. 2016). Section 99-17-9 provides:

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

If a defendant takes “willful, voluntary, and deliberate actions to avoid trial,” he “has waived the right to be present at trial and may be tried in absentia.” Haynes, 208 So.3d at 6 (¶ 11) (quoting Wales v. State, 73 So.3d 1113, 1119-20 (¶ 16) (Miss. 2011)). “This waiver, though, is balanced against a defendant’s constitutional right to be present at trial.” Id. (citing U.S. Const. amend. VI; Miss. Const. art 3, § 26).

¶7. There is no dispute that McDonald participated in the pretrial proceedings. He attended several hearings and meetings with his trial attorney, and even appeared in court on December 1. However, although McDonald was repeatedly informed as to his court date and told to appear for trial on December 2, he failed to do so. Moreover, McDonald’s mother told his defense attorney that when McDonald left the house that .morning, he said he was not going, to court, evincing a willful decision to absent himself from the proceedings. See Wales, 73 So.3d at 1120 (¶ 20) (finding no abuse of discretion in a circuit court’s determination that the defendant had “voluntarily absented himself from the trial,” when the record showed that he “knew the trial date, did not appear, and could not be located”). Accordingly, as the record' clearly reflects that McDonald was aware of the trial date on December 2 and deliberately failed to appear, we find the circuit court did not abuse its discretion in finding McDonald “willfully, voluntarily and deliberately absented himself from the trial” and proceeding to trial in his absence.

¶ 8. We also find no. merit to McDonald’s claim he was prejudiced because he was not present to argue the credibility of the witnesses ánd their identification of him as one of the perpetrators. McDonald’s deliberate absence from his trial operated as a waiver of that right. See Wales, 73 So.3d at 1120 (¶ 20) (A defendant’s “deliberate absence from trial operated as a waiver” of his right to testify in his own defense.). Further, a review of the record shows that McDonald received a fair trial and suffered no prejudice from his willful absence.

II. Whether McDonald was subjected to ineffective assistance of trial counsel.

¶9. McDonald argues his trial counsel provided ineffective assistance by failing “to review all of the evidence to be presented at trial with the defendant” and “to call into question the integrity of the trial process[,]” Additionally, McDonald makes vague assertions regarding. counsel’s failure to inquire of potential jurors as to any bias they may have had as a result of his absence and “to utilize the power of process of the court to compel the production of evidence” and witnesses.

¶ 10. Generally, claims of ineffective assistance of counsel “are more appropriately brought during post-conviction proceedings.” Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss. 2008). Because an appellate court’s review on direct appeal is limited to the trial court’s record, “there may be instances in which insufficient evidence exists within the record to address the claim [of ineffective assistance of counsel] adequately.” Id. (citing Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss. 2003)). “In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief.” Read v. State, 430 So.2d 832, 837 (Miss. 1983).

[An appellate c]ourt will rule on the merits on the rare occasions where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Wilcher, 863 So.2d at 825 (¶ 171) (citation omitted).

¶ 11. To support his claims, McDonald submitted an affidavit from his mother, Angel McDonald, on appeal, which summarily states that his attorney “failed to review all of the evidence in the case” with McDonald, “failed to subpoena any witnesses in his favor,” and told McDonald that “she could not assure that he would get a fair trial.” Since this affidavit is outside the circuit court’s record, we may not consider it on appeal. Regarding his claim that counsel failed to review evidence, we can only assume this claim refers to the exchange at the beginning of trial ⅛ which trial counsel argued to the court that McDonald had not had an opportunity to review newly received evidence. Counsel acknowledged, however, that McDonald had been informed a few days prior about the new evidence and had an opportunity to come to her office to review it but had failed to do so.

¶ 12. We find McDonald’s allegations of ineffective assistance “are based on facts not fully apparent from the record” and cannot be addressed on direct appeal. As neither party has stipulated as to the adequacy of the record, and the record makes no affirmative showing of ineffective assistance of counsel, we dismiss McDonald’s ineffective-assistance-of-counsel claim without prejudice, preserving his right to request permission from the Mississippi Supreme Court to file a petition for post-conviction relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

¶ 13. We affirm McDonald’s convictions of armed robbery and concurrent sentences of fifty years for each count in the custody of the MDOC, with ten years suspended and five years of supervised probation.

¶ 14. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P JJ., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . McDonald had signed a guilty-plea petition, but at this hearing, he withdrew the petition.

      . McDonald is represented by new counsel on appeal. An order substituting counsel was entered on December 18, 2015.

      . The State submitted DVDs containing discoverable information to defense counsel on November 24, 2014.


source: Caselaw Access Project

author: BARNES, J„

license: Public Domain

text:
    Earnest Antonio KEYS, a/k/a Earnest Antonio Keys, Jr., a/k/a Ernest Keys, a/k/a Earnest Keys, a/k/a Earnest Keys, Jr., a/k/a Earnest A. Keys, Jr., a/k/a Earnest Key, a/k/a Earnest A. Keys, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-CP-01179-COA
    Court of Appeals of Mississippi.
    09/27/2016

      ATTORNEY - FOR APPELLANT: EARNEST ANTONIO KEYS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
   MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J„

FOR THE COURT:

¶ 1. The motion for rehearing is denied. The previous opinion is withdrawn, and this opinion is substituted in its place.

¶ 2. Keys appeals from a Forrest County Circuit Court order denying his motion to amend and/or reconsider the revocation of post-release supervision. In substance, Keys sought to have his previously revoked term of post-release supervision reinstated, so that he would be released from prison, or failing that, he sought to have his term of incarceration reduced. We find the circuit court correctly denied the motion and' affirm,

FACTS AND PROCEDURAL HISTORY

¶ 3. On July 20,2007, Keys pled guilty to armed robbery. He was sentenced to serve ten years under the supervision of the Mississippi Department of Corrections (MDOC), with three years to serve and five years of post-release supervision. Additionally, he was ordered to pay restitution and court costs, and he was ordered to report to his probation officer. After serving three years, Keys began serving his term of post-release supervision.

¶ 4. On October 7, 2011, an arrest warrant was issued for Keys on a second charge of armed robbery in Forrest County. On November 16,2011, the circuit court held a revocation hearing. Keys admitted he failed to pay the restitution and court costs. He also admitted he failed to report to his probation officer. Keys’s post-release supervision was revoked, and he was ordered to serve the remainder of his sentence.

¶ 5, On September 6,, 2012, the- arrest warrant for the second charge of armed robbery was passed to the inactive files. On January 10, 2014, Keys filed the motion to amend and/or reconsider the revocation of post-release supervision, which led to this appeal. Keys requested .the circuit court to “review the revocation order and reinstate Mr. Keys[’s] Post-Release Supervision or revoke him for some number of years less than the full seven (7) years.”

¶6. On October 13, 2014, the circuit court denied Keys’s motion. The circuit court determined that (1) the only avenue available to Keys for seeking collateral review of his sentence was Mississippi’s Uniform Post-Conviction Collateral Relief Act (UPCCRA), Mississippi Code Annotated sections 99-39-1 to -29 (Rev. 2015), and (2) the court was.without jurisdiction to reduce or alter Keys’s sentence as he had begun serving the sentence subject to the custody and control of the MDOC.

DISCUSSION

¶ 7. Mississippi’s UPCCRA constitutes the “exclusive” means to obtain review of a final conviction. Miss. Code Ann. § 99-39-3(1) (Rev. 2ÓÍ5). Claims of improper revocation of conditional release fall under the Act. Ivory, v. State, 999 So.2d 420, 424-425 (¶ 10) (Miss. Ct. App. 2008). The circuit court was correct in finding that Keys’s . motion to amend and/or reconsider the revocation of post-release supervision was “simply in the nature of a motion for post-conviction collateral relief.”

¶ 8. In reviewing a circuit court’s denial of a petition for post-conviction relief, we will not disturb the court’s findings of fact “unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss. 1999) (citing Bank of Miss. v. So. Mem’l Park Inc., 677 So.2d 186, 191 (Miss. 1996)). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

¶9. Keys’s post-release supervision was conditioned upon his paying restitution and court costs, as well as reporting to his probation officer. Keys admitted he did not comply with those conditions. Failure to abide by conditions imposed in an order sentencing a defendant to a term of post-release supervision constitutes grounds for revocation. Reese v. State, 21 So.3d 625, 628-29 (¶ 12) (Miss. Ct. App. 2008). Thus, Keys’s failures to pay fines and costs and to report to his probation officer were all valid grounds to revoke his post-release supervision.

¶ 10. Keys argues that because he was not convicted of the second charge of armed robbery, the circuit court should revisit his revocation and either reinstate his post-release supervision or reduce his revoked sentence. As noted, the circuit court revoked his sentence based on technical violations, not the charge for armed robbery. In any event, an actual conviction is not necessary for revocation of post-release supervision. Rather, the State must only show it is “more likely than not that the probationer committed the offense.” Brown v. State, 864 So.2d 1058, 1060 (¶ 9) (Miss. Ct. App. 2004). At Keys’s revocation hearing, a Hattiesburg Police Department detective testified two masked men robbed a convenience store, and one of them brandished a machete. A store clerk identified Keys, saying she met Keys before the robbery and recognized his voice when one of the masked men spoke. She also identified a picture of him in a photographic lineup. Additionally, one of Keys’s relatives told the detective that Keys admitted to the robbery. Had the circuit court relied on Keys’s commission of a crime as a basis for revocation, the evidence would have been sufficient to do so.

¶ 11. Lastly, the circuit court was correct in finding it had no jurisdiction to alter the term of Keys’s sentence while he was serving the sentence in the custody of the MDOC. A court imposing an original sentence upon a defendant “shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.” Miss. Code Ann. § 47-7-33(1) (Rev. 2015). Nevertheless, a defendant may appeal a sentence illegally imposed upon a guilty plea. Lett v. State, 965 So.2d 1066, 1070 (¶ 7) (Miss. 2007). However, Keys did not contend his sentence was illegal. Rather, he sought to have either his post-release supervision reinstated or the term of his sentence reduced. The circuit court lacked jurisdiction to grant that relief. See McGee v. State, 976 So.2d 954, 956 (¶ 12) (Miss. Ct. App. 2008) (“[I]f the defendant fails to take an appeal and begins to serve his sentence, the time has passed for the trial court to suspend a sentence under section 47-7-33.” (citing Denton v. Maples, 394 So.2d 895, 898 (Miss. 1981))). In this case, once Keys began serving his reinstated sentence, the circuit court had no jurisdiction to alter it.

¶ 12. Therefore, we affirm the circuit court’s denial of Keys’s motion to amend and/or reconsider the revocation of post-release supervision.

¶ 13. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: Ishee, J.,

text:
    Greg ESTES and Jeff Estes, Co-Executors of the Estate of Joe Howard Estes, Deceased v. Sarah Young ESTES.
    Nos. 2014-CA-01533-COA, 2011-CA-01451-COA.
    Court of Appeals of Mississippi.
    April 19, 2016.
    Rehearing Denied Jan. 17, 2017.
    T.K. Moffett, Amory, attorney for appellant.
    Rhett R. Russell, Tupelo, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and FAIR, JJ.
   Ishee, J.,

for the Court:

¶ 1. After a nine-month marriage between Sarah Young Estes (Young) and Joe Howard Estes (Estes), Estes passed away testate. His will did not provide for his wife to inherit from his estate. The record reflects that soon into the marriage, Estes experienced health difficulties, including the amputation of one leg and surgery to clear blocked neck arteries. Shortly thereafter, Young permanently moved back into her own separate home and filed for divorce. After Estes died, Young contested his will since it contained no provision for her. Initially, the Lee County Chancery Court granted Young a widow’s allowance and a child’s share of the estate. However, on appeal, this Court reversed and rendered the widow’s allowance and reversed and remanded the child’s-share inheritance for further analysis as to whether Young had abandoned the marriage as a matter of law. On remand, the chancery court determined that Young had not abandoned the marriage as a matter of law and again granted her a child’s share of the inheritance. Aggrieved, Estes’s family appealed. We find that Young had indeed abandoned the marriage. Therefore, we reverse and render the chancery court’s judgment.

STATEMENT OF FACTS

¶ 2. Young and Estes married on August 3, 2006, after dating for approximately six months. Young entered the marriage with four natural children and three grandchildren, whom she had adopted. The grandchildren were minors at the time. Estes entered the marriage with several grown children. After the marriage, Young’s grandchildren, the youngest of whom was eight years old at the time of the marriage, continued to live in the home Young had lived in prior to the marriage and which she continued to maintain after the marriage.

¶ 3. Young worked as a caregiver to the sick and elderly in their respective loea-tions. She alternated one week of working night shifts followed by another week of working day shifts. Additionally, as mentioned above, Young maintained her separate home where her grandchildren resided. Hence, she divided her time between her work, her household where her grandchildren lived,’ and Estes’s home. As noted by the chancellor, Estes and Young’s “living arrangement was somewhat nontraditional.”

¶ 4. Three days after Young and Estes married, Estes entered the hospital due to a previously sustained foot injury that would not heal. The injury quickly progressed and eventually led to the amputation of Estes’s leg on August 17, 2006. Two months later, in October 2006, Estes returned to the hospital for surgery to unblock arteries in his neck.

¶ 5. The record reveals that Estes’s brother, Tommy, as well as.Tommy’s wife, son, and daughter-in-law, provided primary care of Estes following his health complications. Meanwhile, the record is conflicting with regard to Young’s participation in Estes’s overall recovery. It is without question that Young’s schedule between work and caring for her grandchildren prevented her from providing consistent care for Estes in his home.. Estes’s family also testified that Young’s visits to Estes decreased substantially after he became sick and that she rarely came to see Estes except to drop off food oh occasion. There is also testimony from numerous witnesses reflecting that after Estes’s leg was amputated, Young asked Estes’s family to determine how they were going to care for him because she would not and did not have the time to care for “a cripple.”

¶6. Young, however, alleges that following Estes’s illnesses she spent the night at his house and cooked him breakfast numerous times before her day shifts began at 7:00 a.m. -These allegations are disputed by Tommy, who stopped by Estes’s house twice a day every day between 6:00 and 6:30 in the morning and again between 5:00 and 5:30 in the evenings, and only rarely saw Young present. One of Estes’s sons, Jeff, corroborated Tommy’s testimony and further testified that by November 2006, Young had stopped going to Estes’s house altogether.

¶ 7. Young’s December 2006 tax documents also- indicate that she did not reside with Estes. She defined herself as-, a “head of household,” asserting that she was a married person living apart from her spouse and providing a home for her children. She further listed her separate home as her primary home for her homestead exemption.

¶ 8. In November 2006, Young consulted with a doctor regarding Estes’s mental state. On January 30, 2007, Young initiated involuntary-commitment proceedings against Estes. She stated that he exhibited rages and threatened to physically harm her. She also said he accused her of having an affair. Additionally, she complained that he sat in his wheelchair wearing nothing but underwear and shot at birds in the yard through an open window in the house.

¶9. Estes admitted that he shot at blackbirds feeding out of his squirrel feeders in the yard and that he shot at them through an open window because it was tod hard for him to get in and out of his house. Furthermore, Estes explained that he often did not wear pants at home because it felt uncomfortable on the leg where his amputation had occurred.

¶ 10. After a psychiatric evaluation; Estes was found to be .competent with no indication of any psychiatric illness or anger-management problems.- The evaluation also concluded that Estes was no danger to himself or anyone else. As such, Estes was released- from psychiatric care.

¶ 11. Immediately thereafter, on February 2, 2007, he sought a restraining order against Young. Approximately ope month later, on March 7, 2007, Young filed for divorce seeking half of all of Estes’s assets, including the value of his land and his bank accounts. Young also requested temporary and permanent restraining orders against Estes. A few weeks later, Estes counterclaimed for divorce and also sought a restraining order. Eventually the parties entered into a mutual restraining order. In May' 2007, Estes received notice of the final divorce hearing. The day after he received the notice, he shot and killed himself.

¶ 12. Estes’s will did not allow for Young to inherit anything from -his estate. Young contested the will. The trial court granted her a $12,000 widow’s allowance as well as a one-fifth child’s share of the estate in the amount of $68,927.63. At the time, her inheritance totaled $80,927.63.

¶ 13. Estes’s family appealed 'the trial court’s judgment. On appeal, this Court determined that Young was not entitled to a widow’s allowance since she was living apart from Estes, through no fault of his own, and without support from him at the time of his death. Estes, 111 So.3d at 1227 (¶ 14). There, we determined: “It is undisputed that Young left Estes’s home by her own volition after his leg was amputated. And she was living in her own home at the time Estes died.” Id. We reversed and rendered her award of a widow’s allowance of $12,000.

¶ 14. We also remanded her award of a child’s share of the estate. We determined that a reading of the chancellor’s order showed that he had mistakenly believed that Mississippi law required him to provide Young with a child’s share of the estate. Id. at 1228 (¶20). However, we ascertained that Mississippi law provides that a widow is not entitled to a child’s share if there is “a clear desertion and abandonment” of the marriage. Id. at (¶ 19). Hence, we remanded the case for a determination as to whether Young had clearly deserted and abandoned the marriage. Id. at (IT 20). We noted that the reason we did not render the child’s-share award was because “the chancellor made no finding—let alone a finding of clear abandonment, as required by [Mississippi law]—making remand proper, so that the chancellor, as the fact-finder, may determine whether Young is estopped from claiming an inheritance....” Id. at n. 6.

¶ 15. On remand, with regard to desertion and abandonment, the chancellor stated the following:

While facts exist which show a nontraditional marriage, [Estes] knew when the parties married that [Young] had, on a daily basis, the responsibilities of attending to her grandchildren. Moreover, [Estes’s] behavior was at times bizarre and the [c]ourt cannot say that [Young] willfully left and had the intention of permanently separating from the marital relationship. Mere absence from the home, without more, does not show willfulness.
The [c]ourt would note that [Young’s] consultation with [a psychiatric doctor] on November 26, 2006, creates the inference that [Young] was trying to get [Estes] help. Moreover, seeking to have [Estes] committed, on January 30, 2007, rather than filing for divorce is suggestive to the [c]ourt that [Young] was trying to get [Estes] help and that the marriage was not over. Efforts by a spouse to get a spouse professional help should not be used against that spouse. Finally, the [c]ourt notes that [Estes] filed a [petition to restrain [Young] on February 2, 2007, which may well have caused [Young] to seek a divorce almost a month later.

¶ 16. Accordingly, the chancellor determined that Young had not clearly deserted and abandoned the marriage, thereby confirming her award of $68,927.63 as a child’s share of the estate. Estes’s family now appeals the chancery court’s judgment.

DISCUSSION

¶ 17. An appellate court "will not disturb the findings of a chancellor when [the findings are] supported by substantial evidence unless the chancellor abused his discretion, [or the findings were] manifestly wrong, clearly erroneous[,] or [based on the application of an] erroneous legal standard.” Long Meadow Homeowners’ Ass’n v. Harland, 89 So.3d 573, 577 (¶ 11) (Miss. 2012) (citation omitted). Questions of law are reviewed de novo. Id.

¶ 18. When détermining whether a spouse clearly deserted and abandoned a marriage, Mississippi caselaw provides a spectrum of factual scenarios for comparison. Most notably, Tillman v. Williams, 403 So.2d 880 (Miss.1981), serves as a benchmark case providing guidelines for determining abandonment. In Tillman, Narvel Tillman challenged the will of his wife, Ada Broadnex Tillman, after her death, and petitioned the trial court to recognize him as an heir to the estate. Id. at 880. The Tillmans were married for approximately twenty-nine years at the time of Ada’s death, but had been separated for approximately fifteen or twenty years. Id. Neither party had made any attempt to divorce the other or remarry. Id. Specifically, “[t]here was no evidence of any attempted remarriage or disclaimer of the marriage by either party during the years of separation. There was no evidence that either party attempted to secure a divorce.” Id. Ultimately, the Mississippi Supreme Court stated: “A thorough review of the record reveals that not only was an abandonment uncertain, ... [t]here was, at most, just a separation proven. As stated, there [were] no marriage or divorce proceedings by either party.... ” Id. at 882.

¶ 19. In sum, to prove desertion or abandonment in cases such as this, a clear indication that one party is no longer committed to a marriage is necessary. While we recognize that separation alone is not proof enough that a marriage has been abandoned, Mississippi courts have recognized qualifying indicators to include filing for divorce, filing for remarriage, and evidence of bigamy. See id.; Rowell v. Rowell, 251 Miss. 472, 170 So.2d 267, 271-72 (1964).

¶ 20. Here, it is undisputed that Young filed the first petition for divorce between the parties in March 2007. The chancery court cited the possibility that Estes’s petition for a restraining order against Young may have incited Young to file for divorce. The chancery court further stated that it could not determine that Young “willfully left and had the intention of permanently separating from the marital relationship. Mere absence from the home, without more, does not show willfulness.”

¶ 21. We find the chancery court’s conclusions to be in conflict with the evidence. A summary of the undisputed chronological series of pertinent events during the parties’ nine-month marriage consists of the following: (1) Estes becomes ill; (2) Young slowly reduces the amount of time spent with Estes; (3) Young attempts to involuntarily commit Estes; (4) Estes seeks a restraining order against Young upon his release from the commitment proceedings; (5) Young files for divorce and restraining orders; (6) Estes counter-files for divorce; and, (7) Estes takes his own life after receipt of notice for a final hearing on the divorce proceedings. Regardless of any other factors present in this case, the most glaring evidence of Young’s abandonment of the marriage was her petition for divorce. Again, the supreme court has clearly noted that filing for divorce serves as an indicator that a party intends to leave the relationship. Furthermore, nothing in the record following Young’s petition for divorce signals that the parties reconciled in any manner. Conversely, it would appear that the parties remained estranged and set on divorcing from one another.

¶ 22. As such, we find that the chancery court abused its discretion in determining that Young did not desert and abandon her marriage to Estes. In doing so, we reverse and render the chancery court’s award to Young of a child’s share of Estes’s estate.

¶ 23. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . In re Estate of Estes, 111 So.3d 1223, 1224-25 (¶¶ 1-2) (Miss.Ct.App.2012).

      . The closest neighbor in the direction Estes was shooting was ninety acres away, and the record does not reflect that anyone else had ever complained of his shooting at the blackbirds.


author: IRVING, P. J.,

text:
    Zachary COZART a/k/a Zachery Cozart a/k/a Zack Cozar, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-KA-01741-COA.
    Court of Appeals of Mississippi.
    May 3, 2016.
    Rehearing Denied Sept. 14, 2017.

      Ralph Stewart Guernsey, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, P. J.,

for the Court:

¶ 1. Zachary Cozart was tried before a DeSoto County jury for the capital murder of a twenty-one-month-old child. The jury, pursuant to a flawed jury instruction offered by Cozart, found him guilty of manslaughter, and the DeSoto County Circuit Court sentenced him to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years suspended and ten years of post-release supervision. Feeling aggrieved, Cozart appeals and argues that (1) he was erroneously sentenced pursuant to Mississippi Code Annotated section 97-3~25(2)(b) (Rev.2014), which provides a maximum sentence of thirty years for the homicide of a child under the age of eighteen years by a person over the age of twenty-one years, rather than pursuant to Mississippi Code Annotated section 97-3-25(1) (Rev.2014), which provides a twenty-year sentence for manslaughter; (2) the verdict is against the sufficiency and overwhelming weight of the evidence; and (3) he received ineffective assistance of counsel.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On July 1, 2010, Ethan Conner, the minor child of Maria Christina Sierra, Co-zart’s then girlfriend, died as a result of what authorities suspected was child abuse that had occurred on June 25, 2010. On January 13, 2011, Cozart was charged by indictment with capital murder under Mississippi Code Annotated section 97-3-19(2)(f) (Rev.2014). The indictment alleged that Conner’s death resulted from felonious child abuse by Cozart as defined in Mississippi' Code Annotated section 97-5-39(2) (Rev.2006).

¶ 4. Cozart engaged in plea negotiations with the State that resulted in an agreed order reducing Cozart’s charge from eap-ital murder to manslaughter under Mississippi Code Annotated section 97-3-35 (Rev.2014), which provides that “[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, shall be manslaughter.” The agreed order and Co-zart’s petition to énter an Alford plea of guilty to manslaughter were filed July 10, 2013. On the same date, the circuit court accepted Cozart’s plea of guilty and continued the matter for sentencing on September 12, 2013. However, the sentencing did not occur as originally scheduled, as the matter was continued multiple times at Cozart’s behest. In the meantime, on March 25, 2014, Cozart filed a motion to withdraw his guilty plea. On May 26, 2014, Cozart and the State presented to the circuit court an agreed order setting aside Cozart’s plea of guilty, which the circuit court executed. However, the circuit court, for reasons not specified in the record, did not enter an order setting aside the previously entered order that reduced the charges from capital murder to manslaughter.

¶ 5. Cozart’s capital-murder trial commenced on October 27, 2014. During the jury-instruction conference, Cozart’s trial counsel offered an instruction for manslaughter as a lesser-ineluded offense. The instruction, which we later discuss in greater detail, contained the elements for child homicide as defined in section 97-3-25(2) (a) (i)—(ii). After the close of the evidence and deliberations, the jury found Cozart guilty of manslaughter. Cozart filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, which the circuit court denied. Following the denial of Cozart’s post-trial motion, the circuit court sentenced him, under section 97—3—25(2)(b), to thirty years in the custody of the MDOC, with fifteen years suspended and ten years of post-release supervision. This appeal followed.

DISCUSSION

I. Ex Post Facto Statute

¶ 6. Cozart argues that the lesser-included-offense jury instruction offered by his trial counsel, which echoed the elements found in section 97-3-25(2), altered his indictment and subjected him. to a harsher penalty. The subject jury instruction reads, in pertinent part:

If you find from the evidence in this case, beyond a reasonable doubt to the exclusion of every other reasonable hypothesis other than that of. guilt:
On or about June 25, 2010, [Cozart] did unlawfully[ ] and negligently by a reckless manner kill Ethan Conner, without malice, [that the act] was intentional and not accidental and [Cozart] was over the age of twenty-one (21) years and the victim was a child under the age of eighteen (18) years, then you shall find ... Cozart[ ] guilty of manslaughter.

While maintaining that he could only be tried for manslaughter because the agreed order had reduced the charge from capital murder to manslaughter, Cozart, citing Flowers v. State, 35 So.3d 516 (Miss.2010), also contends that both his due-process rights and the Ex Post Facto Clause were violated because section 97-3-25(2) did not become effective until July 1, 2013. He asserts that the application of the child-homicide statute in this case essentially-amended his indictment by requiring proof of child abuse, adding elements to the offense that he was charged with, and eliminating the heat-of-passion element of manslaughter. Cozart also asserts that his failure to raise, at trial, the deficiency of the indictment under which he was convicted does not waive this issue on appeal.

¶ 7. In response, the State argues that the order reducing the charge from capital murder to manslaughter was a part of a procedural process to implement the plea deal, which was not completed because Cozart reneged. The State also argues that to give credence to the notion that the State must remain bound by any action that it had taken in implementing a plea deal after the defendant has reneged on his part of the deal would allow a defendant to start the process for a plea deal, wait for the charges to be reduced, and then withdraw from the process. The State further argues that Cozart has waived his right to assert an ex post facto violation. We agree with the State’s argument.

¶8. As to Cozart’s argument that the State was bound to try him on the reduced charge, we acknowledge that there is no language in the plea agreement tethering the decision to reduce the capital-murder charge to Cozart’s agreement to plead guilty to the lesser manslaughter charge. However, it is clear to us that the two were connected and interrelated. First, the order reducing the capital-murder charge to manslaughter was an agreed order. If the State wanted to reduce the charges without the benefit of a ea deal, it could have done so on its own without an agreement from Cozart. Second, the agreed order and the plea agreement were filed on the same day. Third, at the conclusion of the State’s case, as a part of the State’s rebuttal to Cozart’s motion for a directed verdict, the State mentioned that the case was a capital-murder ease. Co-zart and his counsel remained mute. Had they been operating under the perception that Cozart was on trial for -manslaughter rather than for capital murder, surely they would have said something then. Fourth, the jury instructions made it clear that the charge that the jury was to consider was capital murder, and Cozart did not raise an issue in his post-trial motion regarding the charge that he had been found guilty of. Even the manslaughter instruction offered by Cozart referenced the charge of capital murder as the charge for which he was being tried. Although Cozart takes the position that his capital-murder charge was dismissed because the order reducing his charges was not rescinded when his guilty plea was withdrawn, it is clear that Cozart’s charge was only reduced to manslaughter pursuant to his plea agreement, and once the guilty plea was withdrawn, his charge of capital murder was reinstated, even if the circuit court neglected to enter an order rescinding the order that had reduced the charge from capital murder to manslaughter. As such, we find no merit to Cozart’s contention that he should have been tried on a manslaughter charge instead of a capital-murder charge.

¶9. As to Cozart’s argument that he could not be sentenced for child homicide because the crime of child homicide did not exist when Conner was killed, we agree with the State that he has waived this argument. As mentioned, the manslaughter jury instruction that Cozart’s trial counsel offered contained the elements of child homicide and instructed the jury to find Cozart guilty of manslaughter if it found those elements. He did not offer a jury instruction on heat-of-passion manslaughter. Cozart argues that his case is similar to Flowers and that his argument is not barred on appeal. We disagree. In Flowers, the Mississippi Supreme Court reversed Flowers’s conviction because he was indicted for a crime that did not exist at the time the alleged offense occurred. The statute that was in effect at the time that Flowers committed the offense was later amended to include the offense that Flowers had committed and which was the subject of his indictment. Flowers, 35 So.3d at 519 (¶¶ 7-8). Stated differently, the supreme court found that Flowers’s indictment was defective because the crime stated in the indictment was nonexistent. Id. at 518-19 (¶ 6). That is not the case here. Cozart’s indictment is not fatally defective; he was charged vyith capital murder as a result of felonious child abuse, which was a crime at the time of the commission of the offense and at the time of his indictment.

¶ 10. We find that our case is analogous to Barnett v. State, 725 So.2d 797, 801-02 (¶ 24) (Miss.1998). In Barnett, Barnett was indicted for capital murder, and the available sentences were death or life in prison. Id. at 801 (¶ 21). Following Barnett’s indictment but prior to his conviction and sentencing, the applicable statute was amended, making life in prison without parole an additional sentencing option. Id. Although the statute providing the additional sentencing option was not in effect when Barnett was indicted, the jury sentenced him to life in prison without parole. Id. Barnett did not object to the sentencing at trial but argued on appeal that his sentence was void because of the ex post facto application of the sentencing statute. Id. The supreme court found that Barnett had waived his ex post facto-sentencing claim because he failed to raise the issue at trial. Id. at (¶ 24). The court stated, “The appropriate time for Barnett to have objected ■ to - the life[-]without[-]parole sentencing option was at the point that the jury was given its instruction, at the latest: It is axiomatic that a litigant is required to make a timely. objection.” Id. at (¶ 22);

¶ 11. Here, as stated, Cozart was aware that the'manslaughter jury instruction ⅛ troducing the elements of child homicide would be given to the jury because he offered the instruction himself, which implicates a point made by the Barnett court: “[I]t is also clear that [Barnett] relied upon the option he now complains of[.]” Id. at (¶ 24). Like the defendant in Barnett, Cozart not only relied upon the instruction that created the error, he offered the instruction. Therefore, Cozart, like the defendant in Barnett, has waived his right to assert an ex post facto violation. Consequently, this issue is without merit.

II. Weight and Legal Sufficiency of the Evidence

¶ 12. Cozart argues that the weight and the legal sufficiency of the evidence were overwhelmingly against the jury’s verdict. It is well established that

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for a directed verdict or for a judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that the 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) (internal citation and quotation marks omitted). In addition, the supreme court has stated:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

Id. at 844 (¶ 18),

¶ 13. We briefly discuss the facts supporting the jury’s verdict. At trial, Sierra testified that after waking .up on June 25, 2010, she went to Conner’s room and looked in on him as he slept, stating that she did not notice anything unusual and that he was breathing.- Sierra then went to take a shower. A few minutes after she got into the‘shower, Cozart came in “yelling that [Conner] was not breathing.” At that point, Sierra rushed out of the shower to find Conner on the hallway floor right outside of his bedroom. Sierra stated that she asked Cozart what happened and then called 911. Cozart informed her that “[Conner] fell out of the bed, and he found him on the floor of his bedroom next to his bed.” During her testimony, Sierra admitted that she never saw Conner on the floor next to his bed. Once an ambulance arrived, Conner was taken to Baptist DeSoto Hospital in Southaven, Mississippi. Conner was later transported to Le Bonheur Children’s Hospital in Memphis, Tennessee, where he remained until his death on July 1, 2010. Following Conner’s death, the case was turned over to law enforcement for investigation, leading to Cozart’s indictment.

¶ 14. Cozart argues that the identity of the child abuser cannot be identified from the evidence, presented. He contends that the State’s theory of how the incident leading to Conner’s death occurred is inconsistent with the testimony of the State’s experts. Cozart also argues that the expert witnesses created a much broader timeline of when the injuries could have occurred. Cozart contends that the only logical inference that was established by the record is that Conner was abused on Wednesday or Thursday before the Friday that he was discovered by Cozart. In addition, he further argues that in closing argument, the State gave a description of how the abuse occurred that is not supported by the evidence. For the reasons that we will explain, we disagree.

¶ 15. The record reveals that the State proceeded on the theory that while Sierra was in the shower, Conner had gone to her room looking for her and was beaten by Cozart, who later moved him to the hallway. The only people who were in the home with Conner on the day of his injury were Sierra and Cozart. Cozart did not testify. As mentioned above, Sierra gave testimony describing the incident and the actions that occurred. During her testimony, she admitted that she had never seen Cozart “lay his hands on [Conner]” in a disciplinary manner or strike him. She also testified that Conner had fallen and hit his head on other occasions, including one time in March 2010, when he fell while he was taking a shower with her at her aunt’s home. However, Sierra did not testify to anything that could be interpreted as eliminating the possibility that Conner’s death had been caused by abuse from Co-zart.

¶ 16. In addition, there was expert-witness testimony from Doctor Karen Lakin, a medical director at Le Bonheur, who examined Conner and reviewed his records. Dr. Lakin testified that Conner’s injury, referred to by her as a subarach-noid hemorrhage, was “acute,” meaning that it was “very recent.” Dr. Lakin stated that Conner’s death was not a case of second-impact syndrome, but rather, it appeared to be a case of “shaken baby syndrome,” which is now referred to as “abusive head trauma.” On cross-examination, Dr. Lakin stated that acute meant “within ,.. between 48 and 72 hours at the very most.” There was also expert testimony from Doctor James Caruso, the forensic pathologist who conducted an autopsy on Conner, Dr. Caruso testified that Conner’s death was caused by “blunt force injuries of the head” and that his “manner of death [was] homicide.” Dr. Caruso also described Conner’s injury as “acute.” He defined acute as “occurring] likely within hours to days prior to the child losing consciousness.” On cross-examination, Dr. Caruso again stated that the cause of Conner’s death was “[b]lunt force injuries of the head.”

¶ 17. This court addressed a similar fact scenario in Rutland v. State, 60 So.3d 187 (Miss.Ct.App.2010). In Rutland, Rut-land was convicted of felonious child abuse without any direct evidence of child abuse. When deciding whether the evidence was sufficient to support the conviction, this Court stated:

Since no direct evidence of child abuse was presented, the State based its case on circumstantial evidence from A.T.’s treating physicians and two social workers. The jury was instructed that a verdict based on circumstantial evidence “must be so strong as to exclude every other reasonable hypothesis other than that of guilt.” Considering the evidence in the light most favorable to the State, we find the evidence presented was sufficient to show, to the exclusion of every other reasonable hypothesis, that Rut-land’s actions resulted in A.T.’s leg injuries. Both doctors testified that the possible scenarios given by Rutland for A.T.’s injuries were not plausible, and Rutland, who maintained that A.T. was constantly under her supervision,, offered no other plausible explanation for the injuries. We find that any rational juror could have found beyond a reasonable doubt that all of the elements of felonious child abuse were proven by the State.

Id. at 191 (¶ 16). When deciding whether the weight of the evidence was sufficient, this Court stated:

In situations where the State’s case is based wholly upon circumstantial evidence, the State is required to prove the defendant guilty beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. The jury was properly instructed on circumstantial evidence, and we find that the jury’s verdict is supported by the overwhelming weight of the evidence. Therefore, we find that this issue is without merit.

Id. at 192 (¶ 20) (internal citation omitted).

¶ 18. Here, as explained above, the conviction was based on circumstantial evidence. The State produced testimony from Sierra, who did not dispute that Co-zart had committed the abuse. Although both expert witnesses gave a broad time-line while defining “acute,” both witnesses agreed that the injury was “very recent.” In addition, Dr. Lakin referred to Conner’s injuries as abusive head trauma, dispelling that it could have been second-impact syndrome, which is what Cozart tried to prove was the cause of death. Also, Dr. Caruso referred to Conner’s death as a homicide. As such, we find sufficient evidence to support the jury’s verdict. Therefore, this issue is without merit.

III. Ineffective Assistance of Counsel

¶ 19. Cozart argues that his trial counsel was ineffective. It is well established that “[i]n order to prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that his attorney’s performance was deficient and that the deficiency was so substantial as to deprive the defendant of a fair trial.” Dartez v. State, 177 So.3d 420, 428 (¶ 19) (Miss.2015) (internal citations omitted). In addition, the supreme court has stated that

[appellate courts] look at the totality of the circumstances to determine whether counsel’s efforts were both deficient and prejudicial. There is a strong but rebut-table presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Only where it is reasonably probable that, but for the attorney’s errors, the outcome would have been different, will we find that counsel’s performance was deficient.

Id.

¶ 20. Here, Cozart alleges that his trial court counsel’s introduction of and failure to object to a jury instruction based on section 97-8-25 constitutes ineffective assistance of counsel. Cozart also alleges that his trial court counsel’s failure to object to his being tried for capital murder constitutes “professional misfeasance.” Cozart further alleges that his trial counsel’s initial trial strategy of proving that Conner’s death was caused by second-impact syndrome was not used due to the retirement of his expert, causing him to default to a strategy that presented no reasonable hypothesis for Conner’s death.

¶ 21. In response, the State argues that the things that Cozart complains of constitute effective strategic decisions. The State points to the fact that Cozart’s trial counsel got the prosecutor to agree to reduce the charges as part of a plea deal, and was able to get a manslaughter jury instruction on a capital-murder charge without any direct evidence. We agree with the State. Although' Cozart maintains that his trial counsel failed to maintain his theory of second-injury syndrome after Cozart’s expert witness retired months before the trial, we note that Co-zart’s counsel conducted effective cross-examination. It is clear that Cozart’s trial counsel had clearly studied the case and effectively prepared for both pretrial and trial matters. Cozart has failed to prove that his trial court counsel’s performance was deficient. As such, this issue is without merit.

¶ 22. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS SUSPENDED AND TEN YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J„ CONCURS IN PÁRT AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . When Cozart committed the offense, section 97-3-25 did not have any subsections and read as follows:
      Any person convicted of manslaughter shall be fined in a sum not less than five hundred dollars, or imprisoned in the county jail not more than one year, or both, or in the penitentiary not less than two years, nor more than twenty years.
      Miss.Code Ann. § 97-3-25 (Rev.2006).

      . Section 97-3-19(2)(f) reads:
      The kitting of a human being without the authority of law by any means or in any matter shall be capital murder ... [w]hen done without any design to effect death by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of [s]ection 97-5-39, or in any attempt to commit such felony[.]
      (Emphasis added).

      . When Cozart was indicted, section 97-5-39(2)(a) read, in pertinent part:

        Any person who shall intentionally (i) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years.
      Miss.Code Ann. § 97-5-39(2) (Rev.2006).

      . The order stated that it was entered upon the joint motion of Cozart and the district attorney, although a copy of the motion is not in the record.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . When Cozart was indicted, section 97-3-25 read as follows:
      Any person convicted of manslaughter shall be fined in a sum not less than five hundred dollars, or imprisoned in the county jail not more than one year, or both, or in the penitentiary not less than two years, nor more than twenty years.
      Miss.Code Ann. § 97-3-25 (Rev.2006). Section 97-3-25 was amended in 2013, and now reads as follows:
      (1) Except as otherwise provided in this section, any person convicted of manslaughter shall be fined in a sum not less than Five Hundred Dollars ($500.00), or imprisoned in the county jail not more than one (1) year, or both, or in the custody of the Department of Corrections not less than two (2) years, nor more than twenty (20) years.
      (2)(a) A person is guilty of child homicide if:
      (i) The person is found guilty of manslaughter in circumstances where the killing, although without malice, was intentional and not accidental; and
      (ii) The perpetrator was over the age of twenty-one (21) years and the victim was a child under the age of eighteen (18) years.
      (b) A person found guilty of child homicide shall be imprisoned in the custody of the Department of Corrections for a term not to exceed thirty (30) years.
      Miss.Code Ann. § 97-3-25 (Rev.2014).

      . The supreme court stated that, despite the fact that the ex post facto issue was not raised at trial, “Flowers’s due-process rights were disregarded and the Ex Post Facto Clause was violated when he was convicted and sentenced for the crime of statutory rape, as his alleged misconduct did not fall under the definition of statutory rape in effect at the time of the offense....” Flowers, 35 So.3d at 518 (¶ 6). The supreme court reversed Flowers's conviction, holding that “the indictment failed to charge a crime under the statuto-iy[-]rape statute in effect at the time of the offense[, thereby making it] fatally defective.” Id. at 519 (¶¶ 6, 8).

      . Cozart’s indictment reads, in pertinent part:
      Cozart willfully, unlawfully, and feloniously, and without authority of law, killed and murder[ed] Ethan Conner, a human being under the age of eighteen (18) years old, while ... Cozart [was] engaged in the commission of the crime of felonious abuse and/or battery of said child with or without any design to effect the death of Ethan Conner[.]


author: STUART, Justice.

text:
    Dolores ADERHOLT, as administrator of the Estate of Bobby Wayne Aderholt, deceased v. Sandra R. Aderholt MCDONALD
    1150878
    Supreme Court of Alabama.
    December 16, 2016
    Lisa M. Ivey, Jasper; and James R. Beaird, Jasper, for appellant.
    J. David Hood of Jackson, Fikes, Hood & Brakefield, Jasper, for appellee.
   STUART, Justice.

Dolores Aderholt (“Dolores”), as administrator of the estate of her deceased son Bobby Wayne Aderholt (“Bobby”), appeals the summary judgment entered by the Walker Circuit Court in favor of Sandra R. Aderholt McDonald (“Sandra”), Bobby’s ex-wife, holding that Sandra was entitled to the proceeds of a $150,000 life-insurance policy Bobby held at the time of his December 2014 death. We affirm.

I.

The relevant facts in this case are undisputed. On June 17, 1993, Alfa Life Insurance Corporation (“Alfa”) issued a $150,000 life-insurance policy to Bobby (“the Alfa policy”), which provided that “[t]he beneficiary who will receive the policy proceeds at the death of the insured is named in the application.” The application form in the record indicates that Bobby named Sandra, his wife at that time, as the sole beneficiary of the Alfa policy.

On September 27, 2004, the Walker Circuit Court entered an order terminating the marriage of Bobby and Sandra (“the divorce judgment”). The divorce judgment also divided the marital property, awarding Bobby ownership of the couple’s chicken farm, but also requiring him

“to pay to [Sandra] the sum of $500.00 per month as alimony in gross for a period of fifteen (15) years. Payments shall begin on October 1, 2004, and corn tinu[e] for a total of one hundred eighty (180) months. This is an alimony in gross award in the nature of a property settlement and is not periodic alimony. This award of alimony in gross' shall be secured by a judicial lien imposed by this order against the real property. It shall constitute a hen against the real property until the alimony in gross is paid in full and shall take priority over any subsequent hens.”

The divorce judgment further divided the parties’ personal property and financial accounts and, relevant to this case, provided:

“Each party shall retain ownership of their own life insurance pohcies. [Sandra] shall remain as the sole beneficiary on [Bobby’s] whole-life-insurance policy through Alfa which has a death benefit of $150,000.00. He shah maintain this insurance and maintain her as the beneficiary for a period of fifteen (15) years.”

It. appears that Bobby thereafter complied with the divorce judgment, maintaining Sandra as the beneficiary on the Alfa policy and paying her $500 per month until he died on December 12, 2014.

Following Bobby’s death, Alfa received notice from both Dolores and Sandra that they were claiming the proceeds of the Alfa policy. Alfa accordingly initiated an interpleader action in the Walker Circuit Court, noting the competing claims and requesting that it be allowed to deposit the disputed insurance proceeds with the court so the court could determine which party was entitled to them. The -circuit court granted Alfa’s request and, after Alfa deposited $154,109 with the court—representing the proceeds of the Alfa policy, a premium refund, and accumulated interest—Alfa was dismissed from the action pursuant to Rule 22(b), .Ala. R. Civ. P., which provides that “[a]ny party seeking interpleader .., may deposit with the court the amount claimed,.■ and the court may thereupon order such party discharged from liability as to such claims, and the action continued as between the claimants of such money or property.”

Sandra thereafter moved the circuit court to enter a summary judgment in her favor awarding her the interpleaded funds based on the undisputed facts that she was the named beneficiary of the Alfa policy and that the divorce judgment had required Bobby to keep her as the beneficiary of the Alfa policy for 15-years, or until September 2019. Dolores opposed Sandra’s summary-judgment motion, arguing that the divorce judgment had required Bobby to maintain Sandra as the beneficiary of the Alfa policy for a period of 15 years because, she argued, the Alfa policy was intended to secure the 15 years of monthly $500 alimony-in-gross payments, not to function as an award in itself. Dolores accordingly argued that Sandra was enti-tied to, at most, a sum equal to the remaining unpaid alimony-in-gross payments, which she stated totaled $28,500, and that the rest of the interpleaded funds properly belonged to Bobby’s estate. On May 5, 2016, the circuit court granted Sandra’s motion and entered a summary judgment in her favor, explaining that “Sandra McDonald is the beneficiary under the policy. The divorce [judgment] states that she was to remain the beneficiary.” On May 12, 2016, Dolores filed this appeal.

II.

Dolores seeks the reversal of the summary judgment awarding the inter-pleaded funds to Sandra.- We review a summary judgment pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant' has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ’substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).

III.

The law of Alabama is that “the designation of the beneficiary of a life insurance policy is governed by the provisions of the policy itself.” Gibson v. Henderson, 459 So.2d 845, 847 (Ala. 1984) (citing Williams v. Williams, 438 So.2d 735 (Ala. 1983)). The Alfa policy provides that the beneficiary is the individual designated as the beneficiary on the application form; it is undisputed that the individual designated as the beneficiary on that form in this case is Sandra. There is no evidence in the record indicating that Bobby ever attempted to remove Sandra as the beneficiary of the Alfa policy or that he even desired to do so but was prevented from acting by the terms of the divorce judgment.

This Court has made it clear that a divorce, by itself, has no impact on one spouse’s status as the beneficiary of the other spouse’s life-insurance policy. In Flowers v. Flowers, 284 Ala. 230, 237-38, 224 So.2d 590, 596-97 (1969), this Court rejected an attempt by the administrators of the deceased ex-husband’s estate to claim the proceeds of a life-insurance policy that named his ex-wife the beneficiary, explaining:

“We will first give consideration to the holding of the trial court to the effect that the divorce judgment, in and of itself, did not affect the right of [the ex-wife] to receive the proceeds of the certificate of insurance here in question. We agree with that holding. It is in accord with the general rule stated in Couch on Insurance, 2d Edition, Vol. 4, § 27:111, pp. 647-648, as follows:
“‘In the absence of terms in the policy indicating that the rights of the beneficiary thereunder are conditioned upon continuance of the marriage relation then existing between the "beneficiary and the insured, or the regulation of the matter by statute, the general rule is that the rights of the beneficiary in an ordinary life insurance policy, including the right to receive the proceeds thereof upon maturity of the policy, are in no way affected by the fact that the parties are divorced subsequent to the issuance of the policy, especially if no attempt is made to change thé beneficiary after the divorce, and the insured continues to keep up the payments on the policy, or where the decree was in her favor.’
“The certificate of insurance, the subject of this litigation, contains no provision to the effect that the rights of the beneficiary named therein were conditioned upon the continuation of the marriage relationship. In so far as we are advised, there is no statute in this state regulating the matter.[] The record does not show that [the ex-husband] made any attempt to change the beneficiary in the manner provided in the certificate of insurance after the divorce and it is without dispute that the policy was in force and effect at the time of the death of [the ex-husband]. The decree of divorce was in favor of the beneficiary named in the certificate- of insurance, namely, [the ex-wife].”

See also Kowalski v. Upchurch, 186 So.3d 460, 463 (Ala. Civ. App. 2015) (reversing the trial court’s judgment holding that the deceased’s son was entitled to a payable-on-death annuity that named the deceased’s ex-husband as the beneficiary because the deceased “did not act during her lifetime to either effect the cancellation of the annuity or change the beneficiary designation”). This legal principle stems from the fact that any rights á beneficiary has to the proceeds of a life-insurance policy are contractual, not marital. Rountree v. Frazee, 282 Ala. 142, 147, 209 So.2d 424, 427 (1968).

In spite of this principle, Dolores argues that both Alabama state and federal courts have, under certain circumstances, disregarded a party’s presumptive contractual rights to the proceeds of a life-insurance policy in order to do equity and to prevent unjust enrichment. In support of her argument, Dolores cites Hanner v. Metro Bank, 952 So.2d 1056 (Ala. 2006) (recognizing the vested equitable interest a child had in his deceased father’s life-insurance policy, even though the father had assigned the policy to a bank as collateral for a loan, based on the fact that a divorce judgment had previously ordered the father to name the child the irrevocable beneficiary of such a . policy); Zeigler v. Cardona, 830 F.Supp. 1395, 1398 (M.D. Ala. 1993) (finding that the named beneficiary was not entitled- to the proceeds of a life-insurance policy when the decedent had previously submitted paperwork, to change the beneficiary but no change was made because -of a clerical error by the insurer); Frawley v. U.S. Steel Mining Co., 496 So.2d 731, 735-36 (Ala. 1986) (awarding the proceeds of a life-insurance policy to the decedent’s child even though the decedent had never complied with the terms of a divorce judgment requiring him to name the child as the beneficiary of his existing life-insurance policy); and Williams v. Williams, 276 Ala. 43, 158 So.2d 901 (1963) (holding that the decedent’s children were entitled to the proceeds of a life-insurance policy instead of the named beneficiary when the decedent had been ordered in a judgment of divorce to name his children as the “irrevocable beneficiaries” of that policy, but he had nevertheless failed to do so). Sandra counters by arguing that, although these cited cases may provide two general exceptions to the rule that a named beneficiary is entitled to the proceeds of a life-insurance policy—when the decedent has failed to comply with a court order regarding the designation of a beneficiary and when the decedent has completed all the required steps to change the beneficiary but the insurer nevertheless failed to make that change—neither of these exceptions apply in the present case.

We agree that none of the cases cited by Dolores provides a basis for reversing the summary judgment. In each of the cited cases, as well as others employing the same rationale, see, e.g., McKinnis v. McKinnis, 564 So.2d 451 (Ala. Civ. App. 1990), and Posey v. Prudential Ins. Co., 383 So.2d 849 (Ala. Civ. App. 1980), the party ultimately adjudged to be the rightful recipient of disputed life-insurance proceeds had produced uncontested evidence indicating.that he or she should have previously been formally named the beneficiary of the policy in.question—either because of a court order or because the policyholder had taken all the steps required by the policy to name that party the beneficiary but the insurer had not made the change. In this case, however, there is no evidence indicating that Bobby took any affirmative action that would indicate that he did not want Sandra to be the beneficiary of the Alfa policy. One might speculate that the fact Bobby and Sandra divorced is reason enough to conclude that Bobby would not have wanted Sandra to be the beneficiary of the Alfa policy; however, such a conclusion runs contrary to Flowers and its progeny, which indicate that a divorce alone will have no. bearing on a named,beneficiary’s right to receive life-insurance proceeds-attributable to the death of an ex-spouse. Moreover, speculation does not rise to the level of substantial evidence. Bosarge Offshore, LLC v. Compass Bank, 943 So.2d 782, 787 (Ala. 2006).

Finally, we note the parties’ argument regarding the nature of the requirement in the divorce judgment that Bobby maintain Sandra as the beneficiary of the Alfa policy for a 15-year period following their divorce. Dolores argues that the Alfa policy was clearly intended to secure the 15 years of alimony-in-gross payments—as evidenced, she argues, by the fact that the alimony payments and the insurance requirement both ran for 15 years and by the fact that the Alfa policy does not otherwise appear to be a property award or alimony—and she cites decisions from other jurisdictions holding that a party in Sandra’s position was entitled only to that portion of life-insurance proceeds that equaled unpaid support obligations. See, e.g., AXA Equitable Life Ins. Co. v. Cherry, 496 F.App’x 917, 920 (11th Cir. 2012) (not selected for publication in the Federal Reporter) (applying Florida law and concluding that “[bjeeause the record demonstrates that the insurance proceeds were intended as security for unpaid alimony, [the beneficiary ex-wife] has not shown that she was entitled to more than the unpaid alimony left to be paid following [her ex-husband’s] death”). Sandra, however, disputes Dolores’s claim that the divorcing court intended for the Alfa policy to act solely as security for Bobby’s alimony-in-gross obligation, invoking the legal maxim expressio unius est exclusio alterius and noting that the divorcing court specifically stated that Bobby’s alimony-in-gross obligations were to be secured by a judicial lien on the chicken farm he was awarded in the divorce judgment, while failing to state that the Alfa policy was intended to serve a similar security function. Moreover, Sandra further emphasizes that a $150,000 insurance policy would not have been needed to secure a diminishing $90,000 obligation.

However, it is ultimately unnecessary to resolve this dispute regarding the divorcing court’s intent with regard to the Alfa policy. Regardless of the exact nature of the requirement in the divorce judgment that Bobby maintain Sandra as the beneficiary of the Alfa policy for 15 years, we find the fact that Sandra was the named beneficiary on the Alfa policy at the time of Bobby’s death to be controlling. Dolores has not established that equity requires a different result, and, as a matter of contract law, Sandra is entitled to the proceeds of the Alfa policy.

IV.

After Bobby died in December 2014, his mother Dolores and his ex-wife Sandra both filed claims with Alfa seeking the proceeds of a $150,000 life-insurance policy held by Bobby at the time of his death. Alfa thereafter initiated this interpleader action, and the circuit court ultimately entered a summary judgment in favor of Sandra based on the fact that Sandra was the named beneficiary on the Alfa policy. For the reasons explained herein, that judgment is affirmed.

AFFIRMED.

Parker, Shaw, and Wise, JJ., concur.

Murdock, J., concurs in the result.

      . Dolores has sworn in an affidavit that Bobby made 111 of the $500 monthly payments ($55,500) to Sandra before his death. She further states that Bobby owed Sandra 57 more monthly payments of $500 ($28,500) at the time of his death. The divorce judgment, however, required Bobby to pay Sandra $500 monthly for 180 months. Thus, if Bobby had made 111 $500 payments at the time of his death, it would appear that he still owed Sandra 69 such payments ($34,500) when he died, not 57 payments as Dolores contends. The 12-month discrepancy between Dolores’s calculations and the terms of the divorce judgment is not explained in the record.

      . Dolores also argued that the proper procedure would be for all the interpleaded funds to be awarded to Bobby’s estate and for Sandra to then assert a claim against the estate for any unpaid alimony in gross she claimed was owed her.

      . While this case was pending in the circuit court, the legislature enacted Act No. 2015-312, codified at § 30-4-17, Ala. Code 1975, which provides for the revocation of certain transferable interests in property in the event of a divorce or an annulment. However, neither party has cited § 30-4-17 or argued that it has any application in this case.

      . See note 3, supra.

      . We also note that in Flowers the husband appears to have voluntarily designated his wife as his beneficiary on a newly acquired life-insurance policy after they had separated and she had sued him for maintenance and support, thus indicating that a separation or divorce does not per se establish that a spouse would never want the other to be the beneficiary of an insurance policy on his or her life. 284 Ala. at 233, 224 So.2d at 591-92.


author: BOLIN, Justice. MURDOCK, Justice

text:
    PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE v. Peter GRAYSON
    1150927
    Supreme Court of Alabama.
    December 16, 2016

      Sybil V. Newton of Starnes Davis Plorie LLP, Birmingham; and M. Warren Butler and Weathers Bolt of Starnes Davis Florie LLP, Mobile, for appellant.
    Robert J. Hedge of Hedge Law Firm, P.C., Mobile, for appellee.
   BOLIN, Justice.

Privilege Underwriters Reciprocal Exchange (“PURE”), a Florida domiciled insurance exchange, obtained a judgment, entered upon a jury verdict, declaring that Peter Grayson was not entitled to coverage under the uninsured-motorist (“UM”) portion of an automobile insurance policy under which Grayson’s sister, Alice Gray-son, was a named insured. The Mobile Circuit Court granted Grayson’s motion to set aside that judgment on the basis that it was void for lack of subject-matter jurisdiction. PURE now appeals. We reverse and remand.

Facts and Procedural History

On October 1,2012, Grayson was injured when the motorcycle he was riding collided with an automobile being driven by an uninsured motorist. Grayson did not sue the uninsured motorist. Rather, he made a claim with his personal UM carrier, who tendered payment of its policy limits of $50,000. Grayson then made a claim on the UM portion of an automobile policy issued by PURE to Robert Knizley—under which Grayson’s sister, then Rnizley’s wife, was a named insured.

On January 17, 2014, PURE brought a declaratory-judgment action, pursuant to § 6-6-220 et seq., Ala. Code 1975 (“the Declaratory Judgment Act”), against Grayson seeking a judgment declaring that Grayson was not covered under the subject policy; specifically, PURE sought a judgment declaring that Grayson was not an insured under the policy because, it alleged, Grayson was not a resident of his sister’s household at the time of the accident as to which he was seeking coverage. PURE requested in its complaint a trial by jury.

On February 3, 2014, Grayson filed an answer and á counterclaim in which he alleged breach of contract based on PURE’s failure to pay him UM benefits under the subject policy over and above what he had already received from his UM carrier. Grayson specifically alleged that he had been involved in a motor-vehicle accident as a result of the negligence of a nonparty uninsured motorist and that, at the time of- the accident, he was a resident of the same household as his sister, who was a named insured under the policy.

After the majority of discovery was completed, PURE moved'for a summary judgment on the basis that Grayson was not covered under the subject policy; Grayson filed a motion and brief in opposition. On September 5, 2014, following oral argument, the trial court entered an order denying PURE’s motion, concluding that there was “sufficient material evidence in dispute to submit the claim [of coverage] to the finder of fact.”

On December 12, 2014, Grayson, pursuant to Rule 42(b), Ala. R. Civ. P., filed a motion seeking “bifurcated, separate trials” in which he requested that his counterclaim1 for damages be tried separately from PURE’s declaratory-judgment action concerning coverage. On December 19, 2014, PURE filed a “Joinder and Clarification of [Grayson’s] Motion for Separate Trials” in which it claimed that the eover-age issue should be tried first because that issue was potentially dispositive of the damages issue; Grayson did not object to the request that the coverage issue be tried first. On January 27, 2015, the trial court entered an order granting PURE’s motion; a trial on the coverage issue was thereafter scheduled for January 2016.

Prior to the trial on the coverage issue, Grayson filed a motion to realign the parties:

“COMES NOW Peter Grayson ... and hereby moves this Court for an order re-aligning the parties in this action, such that Peter Grayson be considered the Plaintiff at trial, and [PURE] be considered the Defendant. As grounds, Grayson would show unto the Court as follows:
“1. This is a declaratory judgment action filed by [PURE] against Peter Grayson in which PURE seeks, a determination as to whether Grayson is an insured under an uninsured motorist policy issued to Alice Grayson by PURE.
“2. The central issue in this case is whether Peter Grayson was a ‘family member’ as defined under the PURE policy issued to Alice Grayson, who is Peter Grayson’s sister.
“4. Both Grayson and PURE agree that Grayson bears the burden of proving at trial that he was a ‘family member’ as defined by the policy, ‘Under Alabama law the general rule is that, the insured bears the burden of proving coverage.’ ...
“5. Accordingly, since Grayson bears the burden of proving this fact, then logic dictates that Grayson should be considered the ‘plaintiff,’ and PURE should be considered the ‘defendant’ at the trial of this case.”

On January 8, 2016, the trial court granted Grayson’s motion to realign, and on January 11, 2016, the case proceeded to trial, at which time the parties conceded on the record that, if PURE prevailed in the coverage trial, then the entire case would be “over.”

On January 15, 2016, following a three-day trial, the jury returned a verdict in favor of PURE, finding That Grayson was not covered under the subject policy; the trial court entered a final judgment based on the verdict.' Grayson thereafter filed, pursuant to Rule 60(b)(4), Ala. R. Civ. P., a motion to vacate the judgment on the basis that the judgment was void for lack of subject-matter- jurisdiction. Grayson specifically argued that no justiciable controversy existed- at the trial on the coverage issue because, he contended, in filing its declaratory-judgment action, PURE had essentially requested an advisory opinion that Grayson was not covered under the policy, “assuming” Grayson • obtained a judgment against PURE on his damages claim and “assuming” that that judgment exceeded the $50,000 that he had already recovered from his UM carrier.. Grayson noted that, at the time of the coverage trial, he had not yet reduced his UM claim to a judgment that would have implicated PURE’s coverage. Accordingly, Grayson argued, he was entitled to relief under Rule 60(b)(4) in the form of a new trial.

On April 18, 2016, the trial court entered an order granting Grayson’s Rule 60(b)(4) motion to vacate the judgment in favor of PURE in the trial on the coverage issue for lack of subject-matter jurisdiction; the order further granted a new trial, at which the damages issue would be tried first and the coverage issue would follow “if needed,”

Standard of Review

“The standard of review on appeal from an order granting relief under Rule 60(b)(4), Ala. R. Civ. P. (‘the judgment is void’), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So.2d 938, 940 (Ala. 1988). ‘If the judgment is void, it is to be set aside; if it is valid, it must stand.... A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process.’ Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala. 1978) (emphasis added).”

Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 641 (Ala. 2003)(some emphases added).

Additionally, unless there is a justiciable controversy, the trial court does not have subject-matter jurisdiction under the Declaratory Judgment Act.

“ ‘There must be a bona fide justicia-ble controversy in order to grant declaratory relief. If no justiciable controversy exists when the suit is commenced, then the court lacks jurisdiction.’ Durham v. Community Bank of Marshall County, 584 So.2d 834, 835 (Ala. 1991) (citations omitted). Where ‘the trial court ha[s] no subject-matter jurisdiction, [it' has] no alternative but to dismiss the action.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala. 1999). ‘“Any other action taken by a court lacking subject matter jurisdiction is null and void.”’ Id. (quoting Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo. Ct. App. 1996))....
“This Court has recognized that a purpose of the Declaratory Judgment Act, codified at §§ 6-6-220 through -232, Ala. Code 1975, is ‘to enable parties between whom an actual controversy exists or those between whom litigar tion is inevitable to have the issues speedily determined when a speedy determination would prevent unnecessary injury caused by the delay of ordinary •judicial proceedings.’ Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 224 (Ala. 2003).... 'Further, ‘[w]e have recognized that a justiciable controversy is one that is “‘definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a [judgment].’ ” MacKenzie v. First Alabama Bank, 598 So.2d 1367, 1370 (Ala. 1992)(quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969)).’ Harper, 873 So.2d at 224.... Thus, the Declaratory Judgment Act does not ‘ “ ‘empower courts to decide ... abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.’ ” ’ Bruner v. Geneva County Forestry Dep’t, 865 So.2d 1167, 1175 (Ala. 2003)(quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala. 1994), quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)).
“In determining whether [PURE’s] complaint alleges a bona fide justiciable controversy, we ‘must accept the allegations of .the complaint as true,’ and ‘must also view the allegations of the complaint most strongly in [PURE’s] favor.’ Harper, 873 So.2d at 223,”

Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177, 1182-83 (Ala. 2006)(emphasis omitted).

Analysis

The issue on appeal is whether PURE’s declaratory-judgment action seeking a determination of whether Grayson was entitled to coverage under the subject policy presented a justiciable controversy so as to invoke the subject-matter jurisdiction of the trial court. PURE argues that both its declaratory-judgment action concerning coverage and Grayson’s UM counterclaim for damages raised the issue of coverage and that either action provided a basis for the trial court’s exercise of subject-matter jurisdiction, making the trial court’s judgment proper. Grayson, on the other hand, maintains that the trial court lacked subject-matter jurisdiction to enter a judgment on the jury verdict because, he says, there was no justiciable controversy between PURE and himself at the time of the trial on the coverage issue because he had not yet shown that his damages exceeded the amount he had receivéd from his own UM carrier. We disagree.

In Federated Guaranty Life Insurance Co. v. Bragg, 393 So.2d 1386, 1388-89 (1981), this Court stated:

“The declaratory judgment act which has been in effect in this state since 1935 has for its purpose ‘to settle and to afford relief from uncertainty and insecurity with respects to rights, status and other legal relations and is to be liberally construed and administered.’ Code of Ala. 1975; § 6-6-221. Section 6-6-223 specifically provides that any party to a contract may bring a declaratory judgment action to determine the validity of that contract.... It has frequently been noted that the declaratory relief provided for in the declaratory judgment acts is especially useful in insurance policy disputes. Borchard’s Declaratory Judgments (2nd ed. 1941). Neither party to an insurance contract should be compelled to wait until the events giving rise to liability have occurred before having a determination of the rights and obligations under the policy.”

(Emphasis added.)

The courts in this State have routinely entertained declaratory-judgment actions filed by insurance companies seeking a determination regarding their rights and obligations under a policy, especially concerning coverage. In Progressive Specialty Insurance Co. v. Steele, 985 So.2d 932 (Ala. Civ. App. 2007), Geico General Insurance Company (“Geico”) filed a declaratory-judgment action naming as defendants, among others, the owner of the insured vehicle and the driver of the vehicle, seeking a judgment declaring that it had no duty to defend against the separate personal-injury action or to provide liability-insurance coverage to the driver, who was operating the owner’s vehicle and who was one of the plaintiffs in the personal-injury action. Progressive Specialty Insurance Company (“Progressive”), the uninsured/underinsured-motorist provider for the plaintiffs in the personal-injury action, intervened as a defendant in Geico’s declaratory-judgment action and sought a judgment declaring that it had no obligation to provide coverage to the plaintiffs. The Court of Civil Appeals noted that, “[djespite the fact that neither the liability of the driver nor Geico’s contractual obligation had been determined at the time Progressive intervened and filed its cross-claim, Progressive’s claim against [the plaintiffs] was a justiciable controversy.” 985 So.2d at 935 n. 1. See also Argonaut Great Cent. Ins. Co. v. Mitchell, 775 F.Supp.2d 1322, 1324 (N.D. Ala. 2011) (“The only issue presented in this [declaratory-judgment action] is whether Defendants’ decedent Scott Mitchell was ‘occupying’ the .Argonaut-insured Madison County Sanitation Department truck at the time he was killed. If so, he was an ‘insured’ under Argonaut’s policy; if he was not ‘occupying’ the insured truck, then no coverage applies.” (emphasis added)); Medlock v. Safeway Ins. Co. of Alabama, 15 So.3d 501 (Ala. 2009)(reversing judgment on pleadings in favor of insurer when insurer sought a judgment declaring that it owed no UM benefits for injuries to passenger and death of driver who was not listed as a driver on the policies and named insureds filed a counterclaim seeking a judgment declaring that the passenger and driver were covered under the policies); Harmon v. United Servs. Auto. Ass’n, 555 So.2d 114 (1989)(affirming a summary judgment on an insurer’s declaratory-judgment action, holding that a brother involved in an accident was not a member of the insured’s household and thus was excluded from coverage under the insured’s automobile policy); Thompson v. Hartford Accident & Indem. Co., 460 So.2d 1264, 1266-67 (Ala. 1984)(“Be-cause Hartford has property rights which may be affected by the proceedings ... and the parties have a bona fide divergence of opinion as to the question whether Veasley is an insured under the terms of its policy, we agree with the trial court that a justiciable controversy is here presented.”); State Farm Mut. Auto. Ins. Co. v. Jackson, 462 So.2d 346, 347 (Ala. 1984)(“The litigation began when State Farm Mutual Insurance Company filed suit for declaratory judgment arising out of an automobile accident, requesting the federal court for the Northern District of Alabama to find that there was no coverage provided under the uninsured motorist clause contained in seven insurance policies.”); and Southern United Fire Ins. Co. v. Willingham, 739 So.2d 503, 503-04 (Ala. Civ. App. 1999)(“Southern United filed a declaratory judgment action asking the court to hold that it was not obligated to pay the children benefits under the uninsured-motorist-coverage provision in its insurance policy issued to their mother. The children filed a counterclaim, seeking damages. Southern United filed a motion for a summary judgment, which the court denied. The parties agreed to a stipulation of facts, and the court, using those facts, entered a judgment in favor of the children on Southern United’s claim for declaratory relief and in favor of the children on their counterclaim [and then assessed their damages].”).

PURE filed its declaratory-judgment action seeking a determination that Grayson was not entitled to coverage under the subject policy because, it claimed, on the date of the accident, Grayson was not an insured under the policy in that he did not reside in the same household as his sister, who was a named insured. Grayson counterclaimed for UM benefits under the PURE policy—the policy under which his sister was a named insured and under which Grayson claimed to be an insured. PURE specifically alleged that, beginning in February 2012, and up to and through the date of the accident, Grayson resided continuously at_Westchester Court, Mobile, Alabama—a residence different from that of his sister. In viewing the allegations in the complaint most strongly in PURE’s favor, as this Court is required to do, we conclude that a justiciable controversy existed at the time PURE commenced its action insofar as the allegations of the complaint allege a justiciable controversy between PURE and Grayson as to whether Grayson was an insured as that term is defined under the policy. If Gray-son was not an insured under the policy, then there would be no coverage, and he would not be entitled to benefits under the policy. “All that is required for a declaratory judgment action is a bona fide justicia-ble controversy.” Gulf South Conference v. Boyd, 369 So.2d 553, 557 (Ala. 1979). Moreover, after PURE commenced its action, Grayson filed a counterclaim alleging breach of contract and asserting that, on the date of the accident, he was a resident of the same household as his sister and that he was therefore entitled to UM benefits under the PURE policy over and above the amount his UM carrier had previously paid him for his damages. The trial court thereafter denied PURE’s motion for a summary judgment, and the ease proceeded to trial on the coverage issue. At no point during the proceedings leading to the trial on the coverage issue did Grayson ever dispute the existence of a justiciable controversy. See Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 223 (Ala. 203)(“The lack of a justiciable controversy may be raised by either a motion to dismiss or a motion for a summary judgment.”). Accordingly, because a justiciable controversy existed between the parties, the trial court had jurisdiction to proceed, and PURE was not compelled to wait until Grayson established damages before having a determination of its obligations— concerning coverage—under the. policy considered by the fact-finder, in this case, the jury. .

Conclusion.

Because the trial court had jurisdiction over the declaratory-judgment action, the judgment in favor of PURE is not void, and it must stand. Ex parte Full Circle Distribution, L.L.C., supra. The order setting that judgment aside is reversed, and the cause is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Parker, Main, and Bryan, JJ., concur.

Murdock, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I write separately to note the inappropriateness of the bifurcation of the claim asserted- by Privilege Underwriters Reciprocal Exchange (“PURE”) seeking a judgment declaring that Peter Grayson is not entitled to coverage- and Grayson’s counterclaim seeking money damages from PURE.

To begin, Grayson’s counterclaim is a compulsory counterclaim. On that basis alone, it may be said that the bifurcation of the trial of Grayson’s counterclaim and PURE’s original claim defeats the purposes of Rule 13(a), Ala.: R. Civ. P., including the avoidance of duplicative litigation and inconsistent results,

But the inappropriateness of'the bifurcation in this case is based on an even more fundamental inseparability of the claims being asserted by the two parties. Gray-son’s assertion that he is entitled to coverage is simply part and parcel of his claim for money damages for not having been extended that coverage by PURE, Thus, PURE’s claim against Grayson asserting that Grayson is not entitled to coverage and Grayson’s claim against PURE asserting, that he is'entitled to coverage are “mirror images” of one another. The essential defense posed by each party—a simple and direct denial of the essential assertion of the other party’s claim—is synonymous with the essential assertion that that party makes in its own affirmative claim against the other party. The claim and counterclaim in this case are one and the same. The bifurcation of those claims, which forms the basis for this appeal, never should have happened.

      . The PURE policy provides that "[w]e will pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an 'uninsured motor vehicle’ because of ‘bodily injury.' ” The policy defines an “insured” as "you” or any “family member.” The policy defines "family member” as "a person related to you by blood, marriage or adoption who is a resident of your household.”