Opinion
Case No. 1D01-0939
Opinion filed December 12, 2002. Rehearing Denied January 17, 2003
An appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge.
R. John Westberry, of Holt Westberry, P.L., Pensacola, for Appellants.
James L. Chase, of Chase, Quinnell, McIver, Jackson Marks, P.A., Pensacola, for Appellee.
Louise Ann Wise, the former wife, appeals an order of the trial court denying her request to revisit the equitable distribution scheme in the parties' divorce decree. For the reasons that follow, we reverse.
In 1991, while the parties were still married, appellee, the former husband, retired from military service and became a participant in the United States Armed Forces Survivor Benefit Plan (SBP). This plan allows a military service member to select a beneficiary to receive a Navy plan annuity after the death of the military service member. The annuity premiums are deducted from the member's retirement pay. The former husband and the former wife concurred in an election to designate their daughter, rather than the former wife, as SBP beneficiary when the former husband became a participant in the SBP.
In 1993, the parties divorced. Pursuant to the terms of their Stipulated Final Judgment of Dissolution of Marriage (Final Judgment), the former husband was ordered to elect SBP benefit coverage for the former wife. The parties expressly waived their rights to receive alimony in the final judgment. According to the former husband, the parties entered into the final judgment with a mutual, good-faith belief that the former husband could elect SBP benefit coverage for the former wife.
On July 9, 1999, the former wife filed a motion for contempt and enforcement, whereby she sought to hold the husband in contempt because he had not named her the SBP beneficiary. The trial court entered an order requiring the former husband to designate the former wife as beneficiary of his SBP within 60 days.
On appeal this court reversed, ruling the former husband was barred by controlling federal law from electing SBP beneficiary status for the former wife because the parties, prior to the divorce, had named their minor daughter as the sole SBP beneficiary. Wise v. Wise, 765 So.2d 898, 900 (Fla. 1st DCA 2000) (Wise I). However, this court stated that "it is apparent that an annuity was awarded to the former wife as part of the overall scheme of equitable distribution in the final judgment"; therefore, "the lower court has authority to revisit the equitable distribution in this case or otherwise effect the terms of the dissolution judgment." Id. at 901.
Upon remand, the former wife filed a motion seeking to have the trial court revisit the parties' equitable distribution scheme. The former husband argued that revisiting the equitable distribution scheme would be directly contrary to Florida Supreme Court precedent holding that if property rights of the parties have been adjudicated in a final judgment of dissolution of marriage, the doctrine of res judicata bars subsequent actions to redetermine the property rights. Finston v. Finston, 37 So.2d 423, 423-24 (Fla. 1948); Davis v. Dieujuste, 496 So.2d 806, 809-10 (Fla. 1986). The former husband argued that the grant of authority in this court's Wise I decision was invalid because the allowed revisitation was barred as violative of the law announced in Davis andFinston. The trial court agreed and entered an order denying the former wife's motion to revisit the parties' equitable distribution scheme on the basis of the Florida Supreme Court decisions in Davis and Finston. By so doing, the trial court erred by failing to follow the dictates of Wise I that directed the trial court to "revisit the equitable distribution in this case or otherwise effect the terms of the dissolution judgment."Id. at 901.
After Wise I was decided, the former husband had two options: move for rehearing or petition the Florida Supreme Court for discretionary review. He did neither, and Wise I became the law of the case. This rule was succinctly stated by Judge Webster in Parker Family Trust I v. City of Jacksonville, 804 So.2d 493 (Fla. 1st DCA 2001), as follows:
"The doctrine of the law of the case is . . . a principle of judicial estoppel." Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 102 (Fla. 2001). It applies when "successive appeals are taken in the same case." Id. It requires that questions of law actually decided on appeal must govern the case in the appellate court and in the lower tribunal in all subsequent stages of the proceeding. Id. Its purpose is "to lend stability to judicial decisions and the jurisprudence of the state, as well as to avoid `piecemeal' appeals and to bring litigation to an end as expeditiously as possible." Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla. 1965). Although the doctrine is "a self-imposed restraint that courts abide by," State v. Owen, 696 So.2d 715, 720 (Fla. 1997), once made by the appellate court, such decisions "will seldom be reconsidered or reversed, even though they appear to have been erroneous." McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 728, 162 So. 323, 327 (1935). Reconsideration will occur only when "`manifest injustice' will result from a strict and rigid adherence to the rule." Strazzulla, 177 So.2d at 4. "Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case." Juliano, 801 So.2d at 102.
Parker, 804 So.2d at 497-98.
In this case, after remand, no additional facts were developed, and the former husband has not argued "manifest injustice." Rather, the trial court entered its order on "arguments presented by counsel for both parties, and review of the memorandum of law presented by counsel for both parties." However, in any case, the trial court was bound by this court's mandate to implement Wise I, rather than express its opinion that the Wise I panel erred.
In reversing the trial court we make no ruling on whether the trial court correctly applied Davis and Finston. We hold only that those precedents were or should have been considered in Wise, and on remand the trial court was compelled to follow this court's mandate as the law of the case.
REVERSED AND REMANDED.
WOLF, J. CONCURS; VAN NORTWICK, J., DISSENTS WITH OPINION
Based on the doctrine of law of the case, the majority opinion reverses the trial court's order denying a motion to revisit the entire equitable distribution scheme contained in the parties 1993 final judgment of dissolution of marriage. In the prior appeal in this matter, Wise v. Wise, 765 So.2d 898 (Fla. 1st DCA 2000) (Wise), the former wife did not challenge the overall equitable distribution scheme or argue the necessity to revisit the scheme. As a result, I conclude that our language in Wise I that "the lower court has authority to revisit the equitable distribution in this case" is pure dicta and, thus, the doctrine of law of the case does not apply. Accordingly, I respectfully dissent.
Doctrine of Law of the Case
In its most recent pronouncement on the doctrine of law of the case, the Florida Supreme Court held that the doctrine "bars consideration only of those legal issues that were actually considered and decided in a former appeal." Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 107 (Fla. 2001). In Juliano, the court reaffirmed its holding in U.S. Concrete Pipe v. Bould, 437 So.2d 1061, 1063 (Fla. 1983), in which the court had limited the doctrine " to rulings on questions of law actually presented and considered on a former appeal." Juliano, 801 So.2d at 106. (Emphasis in original). The court resolved any possible confusion withAirvac, Inc. v. Ranger Ins. Co., 330 So.2d 467 (Fla. 1976), where the court appeared to suggest that the law of the case also applied where an issue could have been raised in the prior appeal, but was not raised. TheJuliano court explained:
To the extent that Airvac has been construed broadly to stand for the proposition that the law of the case doctrine bars consideration of issues that were neither raised by the parties nor decided by the appellate court in the prior appeal, it is in conflict with our subsequently decided case of U.S. Concrete, which restricts application of law of the case to issues that were decided in a prior appeal. Therefore, we recede from Airvac to the extent that it is inconsistent with U.S. Concrete.
Juliano, 801 So.2d at 107.
Thus, for the doctrine of law of the case to apply, the issue must have been raised as an issue or expressly argued by one of the parties in a prior appellate proceeding in the same case and must have been actually considered by the appellate court. See also McBride v. State, 810 So.2d 1019, 1022 (Fla. 5th DCA 2002), rev. granted, No. 02-627 (Fla. Aug. 20, 2002).
Wise I involved an appeal from an order in enforcement action and not a direct appeal of the final judgment of dissolution. The only issue raised in Wise I was whether the application of certain federal statutes precluded compliance with the 1993 final judgment that required the former husband to name the former wife as the beneficiary under the armed forces benefit plan. Upon reviewing the briefs filed in Wise I, it is clear that the parties did not challenge the overall equitable distribution scheme or argue that the trial court should or could revisit the entire equitable distribution scheme on remand. In the Wise I opinion, this court gratuitously stated that the trial court could revisit equitable distribution, apparently to avoid a harsh result. The Wise I panel's advice concerning revisiting the equitable distribution scheme was not necessary to a disposition of the appeal in Wise I. See Hart v. Stribling, 25 Fla. 435, 6 So.2d 455, 459 (1889). As a result, the statement in Wise I that "it is apparent that an annuity was awarded to the former wife as part of the overall scheme of equitable distribution in the final judgment" and that, therefore, "the lower court has authority to revisit the equitable distribution in this case or otherwise effect the terms of the dissolution judgment," Wise I, 765 So.2d at 901, is pure dicta. See Myers v. Atlantic Coast Line Railroad Co., 112 So.2d 263, 267 n. 6 (Fla. 1959) ("The dictum of the reviewing court is not within the rule of the law of the case and is, therefore, not conclusive on a subsequent appeal.").
This court may take judicial notice of its own records in Wise I.McNish v. State, 47 Fla. 69, 36 So. 176 (1904).
Doctrine of Res Judicata
Even though doctrine of law of the case may not grant the trial court authority to revisit the equitable distribution scheme, may the trial court nevertheless revisit the overall equitable distribution scheme under the current circumstances? I agree with the trial court that the doctrine of res judicata under established Florida precedent bars the trial court from revisiting the parties' property rights on remand of a proceeding that sought to enforce the 1993 final judgment. See Davis v. Dieujuste, 496 So.2d 806, 809 (Fla. 1986); Finston v. Finston, 37 So.2d 423, 423-24 (Fla. 1948). Thus, in my view, the trial court was correct in denying the former wife's motion to revisit the parties' equitable distribution scheme on the basis of Davis and Finston.
In Finston, the final judgment of dissolution was affirmed by the Florida Supreme Court on March 30, 1948. See Finston v. Finston, 34 So.2d 745 (Fla. 1948). In August 1948, the former husband petitioned the trial court for a supplementary final decree which would have required the former wife to release or waive her rights to certain property. The trial court denied the former wife's motion to dismiss the petition on res judicata grounds. On review, the Supreme Court concluded that the parties' property rights had been at issue before the trial court at the time the final divorce judgment was entered and held that the petition for supplementary final decree seeking further adjudication of property rights was barred by the doctrine of res judicata. The Court explained:
The rule seems well settled that a final decree in an equity suit settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights. . . . It further appears from the pleadings in the main suit that the property rights in question were before the court when the final decree was entered and were adjudicated, so the doctrine of res adjudicata was a proper defense to raise here and should have been permitted. (citations omitted)
Finston, 37 So.2d at 423-424. In Davis, 496 So.2d at 809-810, the Florida Supreme Court reiterated the principle announced in Finston, holding that
where a trial court has acquired jurisdiction to adjudicate the respective rights and obligations of the parties, a final judgment of dissolution settles all such matters as between the spouses evolving during the marriage, whether or not these matters were introduced in the dissolution proceeding, and acts as a bar to any action thereafter to determine such rights and obligations.
This court has followed Davis in a similar case. See Love v. Love, 770 So.2d 256 (Fla. 1st DCA 2000) (court could not modify final judgment of dissolution entered several years earlier to equitably distribute the former husband's military retirement benefits).
I recognize that in Juliano the court explained that, under the doctrine of res judicata, a judgment on the merits in a former suit bars a subsequent action between the same parties on the same cause of action, Juliano, 801 So.2d at 105, and that, thus, "[w]here successive appeals are taken in the same case there is no question of res judicata, because the same suit, and not a new and different one is involved." Id. (citing Beverly Beach Props., Inc. v. Nelson, 68 So.2d 604, 607 (Fla. 1953)). Both Juliano and Beverly Beach involved questions of the application of the doctrine of res judicata on successive appeals in the same continuous proceeding. Neither Juliano nor Beverly Beach involved the question of whether res judicata applied to a subsequent enforcement action, filed in the same docket number substantially after the final judgment has become final, in which a party raises issues regarding division of property rights that were adjudicated in the final judgment of dissolution. Thus, I do not believe that the Juliano court intended to overturn the long line of Florida authority, including Finston, founded on the doctrine of res judicata, which holds that, in a dissolution action, courts are barred from modifying a final adjudication of property rights in a subsequent proceeding, even though the action is filed in the same docket as the dissolution action. De Santis v. De Santis, 714 So.2d 637, 638 (Fla. 4th DCA 1998) ("Once the final judgment awarded each party the interest in his or her own pension plan, those assets were no longer marital property but the sole property of the individual spouse." Therefore, trial court could not enter qualified domestic relations order (QDRO) against the wife's pension plan to enforce the provision in the final judgment that she make a payment to her former husband as part of that property division.); Thurston v. Conley, 693 So.2d 1070 (Fla. 4th DCA 1997) ("re-shuffling of property rights, which were settled in final judgment of dissolution" is error even though styled as an enforcement proceeding); see, e.g., Hamilton v. Hamilton, 508 So.2d 760, 761 (Fla. 1st DCA 1987) ("Because this is an appeal from denial of modification, not an appeal from the final judgment of dissolution that effected equitable distribution of marital assets, neither the trial court nor this court can reach back and modify the original judgment to effect a different distribution of property rights, including the former husband's military pension benefits"); see also Vanderboort v. Vandervoort, 277 So.2d 43, 45 (Fla. 3d DCA 1973) quoting Mabson v. Christ, 96 Fla. 756, 119 So. 131, 133 (Fla. 1928) ("While a court of equity retains the power to modify by subsequent order the time or manner of the enforcement of a final decree . . . after it has become final and absolute under our rules, it does not retain the power to amend, modify or alter the principles of such final decree."); compare Janovic v. Janovic, 814 So.2d 1096, 1101 (Fla. 1st DCA 2002) (a court, as part of an enforcement proceeding, may order a different but equivalent benefit to that provided in the final judgment of dissolution "where one spouse takes a voluntary action which defeats the intent of the parties" in their property settlement agreement (emphasis supplied)).
I acknowledge the apparent harshness of the result here. The instant case does not involve one party taking a voluntary action which defeats the terms of the final judgment's disposition of property rights. Compare Janovic, 814 So.2d at 1100-01. It would appear that, unfortunately, no one involved in this dissolution proceeding realized in 1993 that federal law prohibited the manner by which the final judgment addressed the benefits under the armed forces benefit plan. See Juliano, 801 So.2d at 105 ("the doctrine of res judicata not only bars issues that were raised, but it also precludes consideration of issues that could have been raised but were not raised. . . ."). The case before us should serve to emphasize that specialized knowledge is required to represent a party in a dissolution proceeding in which one party is in the military. See, e.g., Peter Cushing, The Ten Commandments of Military Divorce: Representing the Non-Military Spouse, Part I, 69 Fla. B. J. 66 (July/August 1995). Although I would prefer the applicable law to be otherwise, I must conclude that, under Juliano and Finston, both the trial court and we are constrained in our authority to reopen the equitable distribution scheme.
I am not unaware of the case law which suggest that res judicata will not be applied where it will work an injustice. Appellant, however, does not argue that the manifest injustice exception should be applied here. Our research does indicate that a manifest injustice exception to the doctrine of res judicata has been applied in workers' compensation cases, see, e.g., de Cancino v. Eastern Airlines, Inc., 283 So.2d 97 (Fla. 1973); City of Miami v. Knight, 554 So.2d 549 (Fla. 1st DCA 1990);Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982); in certain types of paternity litigation, State Dep't of Revenue Office of Child Support Enforcement v. Redding, 685 So.2d 1000 (Fla. 3d DCA 1997), and other limited situations. See, e.g., Universal Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366 (Fla. 1953). I have found no authority, however, for the proposition that a party can avoid the res judicata effect of a final judgment of dissolution disposing of the parties' property rights by bringing a subsequent action after the final judgment of dissolution becomes final and arguing that manifest justice requires that the equitable distribution scheme be revisited. While the parties were mistaken in 1993, when the settlement was reached and the final judgment entered, that the husband could change the beneficiary of his armed forces benefit plan, in my view, this mistake should have been addressed pursuant to rule 1.540(b), Florida Rules of Civil Procedure, within one year of the 1993 final judgment. See Seifert v. Seifert, 702 So.2d 273, 275 (Fla. 1st DCA 1997).
For the above reasons, I respectfully dissent.