Frank G.W. v. Carol M.W.

• Decision Date: 10 May 1982
• Citation: 457 A.2d 715
• Parties: FRANK G.W., Petitioner Below, Appellant, v. CAROL M.W., Respondent Below, Appellee. CAROL M.W., Respondent Below, Appellant, v. FRANK G.W., Petitioner Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 715

457 A.2d 715

60 A.L.R.4th 195

FRANK G.W., Petitioner Below, Appellant, v. CAROL M.W., Respondent Below, Appellee.

CAROL M.W., Respondent Below, Appellant, v. FRANK G.W., Petitioner Below, Appellee.

Supreme Court of Delaware.

Submitted: May 10, 1982.

Decided: Feb. 10, 1983.

Upon appeal from Family Court. As to No. 213, 1981, Remanded. As to No. 273, 1981, Reversed and Remanded.

Mark H. Froehlich (argued) and Louis B. Ferrara, Wilmington, for Frank G.W.

John G. Mulford (argued), Vincent A. Theisen and Davis S. Lank, of Theisen, Lank, Mulford & Goldberg, P.A., Wilmington, for Carol M.W.

Before HERRMANN, C.J., QUILLEN and HORSEY, JJ.

QUILLEN, Justice:

Two appeals have been brought from a property division determination of the Family Court incident to a divorce. The initial appeal was brought by the husband who contends that the Family Court abused its discretion in refusing to reopen the issue of the valuation of certain gas and oil leases after there was an indication that the stipulated values were inaccurate. Specifically, the husband appeals from the refusal of the Family Court to grant a new trial or reargument after its decision on the property division was rendered.

In addition, the wife has appealed following a partial new trial occasioned by her application after the Family Court's decision. She contends that a second Family Court judge assigned to the case erred in overruling a prior opinion of the Family Court in this very case by the first judge assigned, who later excused himself from the assignment due to his retirement. The earlier summary judgment opinion had classified certain trust assets and gifts of stock as marital property subject to equitable distribution. The second opinion rendered during the trial process reversed that conclusion and consequently drastically reduced the amount of marital property subject to division.

The wife also contends, on the assumption that it was appropriate for the second judge to act at all, that error was still committed because: (1) the conclusion of the second judge was wrong; (2) the "non-marital" assets lost their character by commingling; and (3) the burden of proof should have been on the husband to establish the non-marital character of the assets.

Each side resists the contentions of the other. While it is not necessary for this Court to review all of the intricate detail of the financial situation of the parties in order to decide this appeal, some review of the facts is necessary to understand this protracted, and somewhat depressing, divorce litigation.

Husband and wife were married on July 29, 1967 and divorced on June 29, 1979. Husband's grandmother died on September 24, 1953. She created a testamentary trust which provided that upon the death of husband's mother, the trustee was to assign and pay over the corpus and accrued unpaid income of the trust to the mother's lineal descendants. When the husband's mother died on February 15, 1973, while the parties hereto were married, husband's share of the trust property was distributed to him.

A second trust, an irrevocable inter vivos trust, was established in 1956 by husband's mother for his benefit. The trustee, "in his absolute and sole discretion", was authorized to apply the net income of the trust to husband's benefit. Further, upon reaching the age of 25, husband was to receive the unexpended income and principal of the trust. Husband turned 25 on June 14, 1970, after he had been married for three years, and, pursuant to the trust provisions, received the corpus and accrued income from the 1956 trust at that time.

A third trust, a testamentary trust, created by the husband's mother in 1957, vested in the husband at her death in 1973. This trust was subject to postponement of enjoyment. Partial distribution of this trust took place in 1975 and the final distribution of $106,630 took place in 1980, following the 1979 divorce.

During ancillary proceedings, subsequent to Family Court's grant of husband's petition for divorce, a question arose as to whether the funds received from the trusts constituted marital property or non-marital property. It appears from the start of the ancillary proceedings, wife conceded that the "rights" to the trusts were "vested" in the husband when the trusts were created prior to the parties' marriage. But the wife argued that the "classical" future interest concept of "vesting" was not determinative of the issue of whether the property received by husband during marriage constituted non-marital or marital property. Instead, she argued, equitable principles required the Court to look to when the husband actually received the possessory interest in the property. When the trusts were dissolved, the parties were married; therefore, the wife argued, the property was subject to equitable distribution during ancillary proceedings. The husband took the position that, since the property was vested properly in him prior to marriage, there could be no argument that the property constituted marital property. ¹

It was on this issue that the Family Court, through two judges, rendered the conflicting opinions. The first opinion prior to trial concluded "that all property acquired by [the husband] by virtue of the [first] two trusts and [several gifts of stock both prior and subsequent to his marriage] is marital." The opinion made no reference to the third trust. In that opinion, the Court recognized the husband had "acquired some sort of an interest" when the two trusts were established but went on to say he "acquired an additional, even more substantial interest" when he actually received the property when the two trusts terminated. As to the stock, the Court seemed to hold that the use of any property, commingled with other property of the family unit, for family purposes made the property marital by the manifested intent of the parties. An order was entered as part of the pretrial letter opinion.

The second opinion was not definitely given until after the completion of the initial ancillary hearing. The Family Court then determined that since the husband's interests in the two dissolved trusts had vested prior to the marriage, the property was acquired before the marriage and was non-marital. The Court also found that there had not been such commingling of non-marital assets with marital assets as to establish an intention to make all assets marital. This opinion found that the assets of the third trust, which had vested during the marriage, were marital property even though some distribution did not occur until after the divorce.

Initially, we want to emphasize that we take a dim view of a successor judge in a single case overruling a decision of his predecessor. We so state notwithstanding the fact that the second opinion rendered in this case was carefully considered and recognized the sensitive nature of the reversal on the law. We imply no criticism of the conscientiousness and diligence of the second Family Court judge. But we have a different view on such successive overruling in the trial courts. And our strong view is held for several reasons.

First, an extended view of the doctrine of the law of the case normally requires that matters previously ruled upon by the same court be put to rest. State v. Winsett, Del.Super., 200 A.2d 692, 693 n. 1 (1964); Levien v. Sinclair Oil Corporation, Del.Ch., 314 A.2d 216, 222 (1973), aff'd Del.Supr., 332 A.2d 139 (1975); Gibson v. Trustees of Pencader Presbyterian Church, Del.Ch., 20 A.2d 134, 138 (1941), aff'd Del.Supr., 22 A.2d 782 (1941); compare Haveg Corporation v. Guyer, Del.Supr., 211 A.2d 910, 912 (1965) and 5 Am.Jur.2d Appeal and Error § 744 (1962). We do recognize, notwithstanding the appeal of finality, that interlocutory rulings may be set aside or modified. Anno., 169 A.L.R. 121 (1947). "Until the rendition of the final judgment, the interlocutory judgment remains within the control of the court." 46 Am.Jur.2d Judgments § 700 at 851 (1969); Yerkes v. Dangle, Del.Super., 33 A.2d 406, 408 (1943). When a successor judge enters onto the scene, however, additional considerations for adherence to prior rulings come into play. As the general comments of one annotation has put it:

"It is to be observed that the usual inclination of a judge to adhere to the previous interlocutory rulings of other judges who have acted in the same case does not arise simply from a recognition of the doctrine of the law of the case (which doctrine, as applied to the proceedings of a trial court, is intended to prevent the harassing of the court with matters which have been once heard and decided), but is founded upon additional considerations of courtesy and comity. The doctrine of the law of the case ... applies as well to the judge who acted in the first instance as to others; but the proposition that one judge ordinarily should not, or, as some courts have it, that he may not, vacate or contravene the interlocutory order or ruling of another is on its face something different, for it implies that the second judge to take action ordinarily should not, or perhaps may not, do that which the first might with perfect propriety do, or even that which the law would obligate him to do."

Anno., 132 A.L.R. 14, 15 (1941). Considerations of courtesy and comity are particularly relevant in Delaware where it is not unusual for our Superior Court to have various judges involved at different stages of protracted cases. Lengthy Family Court cases and Court of Chancery cases not infrequently have similar dual or multi-judge participation. While "it cannot be said that an imperative rule of restraint, as distinguished from a mere general rule of practice, has been established" , the general rule should be considered as firmly established here and exceptions should be entertained only in extraordinary circumstances. See Wilmington Medical Center, Inc. v. Coleman, Del.Supr., 298 A.2d 320, 322 (1972). Parties must not be entrapped...