Jordan v. Jordan

• Decision Date: 16 March 1982
• Docket Number: No. 15859-PR,15859-PR
• Citation: 643 P.2d 1008,132 Ariz. 38
• Parties: Mary Ann JORDAN, Petitioner/Appellee, v. Donald E. JORDAN, Respondent/Appellant.
• Court: Arizona Supreme Court

Page 1008

643 P.2d 1008

132 Ariz. 38

Mary Ann JORDAN, Petitioner/Appellee, v. Donald E. JORDAN, Respondent/Appellant.

No. 15859-PR.

Supreme Court of Arizona, In Banc.

March 16, 1982.

Rehearing Denied April 27, 1982.

William J. Redondo, Tucson, for petitioner/appellee.

Slutes, Browning, Slaket & Sakrison by James M. Sakrison, Jane L. Eikleberry, Tucson, for respondent/appellant.

FELDMAN, Justice.

This marriage dissolution action presents the novel question of whether a trial court may deviate from the mandate of an appellate court because of an intervening change in controlling law and, on remand, decide the case contrary to the instructions contained in that mandate. The court of appeals held that the trial court was without jurisdiction so to do and reversed. Jordan v. Jordan, --- Ariz.App. ----, 643 P.2d 1021 (1981). We granted appellee wife's petition for review.

The parties were married in 1959 and lived in Oklahoma before moving to Arizona. In 1972, they bought a residence in Tucson, taking title as joint tenants with right of survivorship. At that time, Arizona law provided that courts had no jurisdiction to apportion joint tenancy property in dissolution proceedings. Becchelli v. Becchelli, 109 Ariz. 229, 508 P.2d 59 (1973). In 1973, after Becchelli, the legislature amended A.R.S. § 25-318 to provide that on dissolution of marriage the court had jurisdiction to include joint tenancy property in an equitable division of marital property. ¹ In 1975, the wife filed a petition for dissolution in Pima County Superior Court.

In the initial dissolution hearing, the trial court assumed jurisdiction over the joint tenancy property and awarded it to the wife. To offset the award of the residence to the wife, the trial court awarded certain community property to the husband. The trial court also made an award of spousal maintenance to the wife. The husband appealed, challenging the division of property and the award of spousal maintenance.

In an unpublished memorandum decision rendered in 1979, the court of appeals, per Richmond, Judge, held that the 1973 amendment to A.R.S. § 25-318 operated only prospectively and, therefore, joint tenancy property acquired before the effective date of the amendment was not subject to equitable division. The court stated:

Because the joint tenancy residence cannot be awarded to appellee (wife) as her sole and separate property, the matter must be remanded. Inasmuch as appellant (husband) was awarded certain community assets to offset the award of the residence, the division of other property must be reconsidered (footnotes omitted).

The husband moved for rehearing; it was denied, and he petitioned for review. We denied this petition on December 4, 1979. The mandate then issued from the court of appeals to the trial court. The court of appeals reversed the portion of the trial court's decree which pertained to the division of property and the case was remanded for further proceedings. In all other respects the decree was affirmed.

Between the date of the court of appeals' mandate and the trial court's reconsideration of the property division, in what, we assume, would have been obedience to that mandate, the statute was amended again. The 1980 amendment gave the statute prospective and retrospective operation, thereby conferring jurisdiction on the trial court to make an equitable division of joint tenancy property even though the property had been acquired before 1973, the date of the first amendment to the statute. ²

Thus, when the trial court sat to obey the dictates of the mandate from the court of appeals, the legislature had given it jurisdiction to do that which the court of appeals had held it could not do-include the joint tenancy home in the equitable division of the marital property.

Accordingly, the trial court ordered that "in light of the change in the statute the original decree of dissolution which had been entered on August 21, 1978, ... 'is hereby confirmed and validated.' " Thus, for the second time, the trial court awarded the joint tenancy residence to the wife with an offset of community property to the husband. The husband again appealed. By opinion filed December 17, 1981, the court of appeals --- Ariz.App. ----, 643 P.2d 1021, held that the trial court still lacked jurisdiction to make an equitable apportionment of the joint tenancy property. The holding was based entirely on the theory that by applying the 1980 amendment to the statute the trial court had ignored the mandate of the first appeal. Stating that "(a) remand sends a matter back to the body from which it came where further action will be limited by the terms of the mandate," the court of appeals ruled that when there is a "specific remand with specific directions" the lower court is without jurisdiction to enter a judgment which varies from the one it has been ordered to enter. Although we approve this statement as a general rule, we do not agree with its application to this unusual situation and, therefore, vacate the opinion of the court of appeals and affirm the trial court.

At the outset, we acknowledge that the trial court's ruling on remand conflicted with the mandate rendered after the first appeal. We acknowledge also numerous Arizona cases holding that on remand the lower tribunal has no choice but to enter a judgment which complies exactly with that which the higher court has ordered. E.g., Sun City Water Co. v. Arizona Corp. Commission, 113 Ariz. 464, 466, 556 P.2d 1126, 1128 (1976); Tovrea v. Superior Court, 101 Ariz. 295, 297, 419 P.2d 79, 81 (1966); Harbel Oil Co. v. Superior Court, 86 Ariz. 303, 306, 345 P.2d 427, 429 (1959); State v. Griffith, 54 Ariz. 436, 441, 96 P.2d 752, 754 (1939); Scates v. Arizona Corp. Commission, 124 Ariz. 73, 75, 601 P.2d 1357, 1359 (App.1979); Zellerbach Paper Co. v. Valley National Bank, 18 Ariz.App. 301, 305, 501 P.2d 570, 574 (1972); Tucson Gas & Electric Co. v. Superior Court, 9 Ariz.App. 210, 213, 450 P.2d 722, 725 (1969). "To hold otherwise would be to strip judicial proceedings of their dignity and respect, while creating a circular process that would provide no end to litigation ...." Tovrea v. Superior Court, 101 Ariz. at 297, 419 P.2d at 81. Nevertheless, none of these cases involves a situation where there has been a change in controlling law between the date of the mandate and the date of the trial court's reconsideration of the case.

The cases cited above present situations in which the trial court allegedly had attempted to substitute its view in lieu of the instructions contained in the mandate from the higher court. Each of the cases correctly holds that the trial court could not act in violation of the mandate. However, the general rule that the lower tribunal must follow the mandate of the higher court is part of the doctrine of the "law of the case." ³ E.g., Banco Nacional de Cuba v Farr, 383 F.2d 166, 178 (2d Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151 (1968). Courts have not given this doctrine the same conclusive effect as the doctrine of res judicata. Compare Stuart v. Winslow Elementary School District No. 1, 100 Ariz. 375, 414 P.2d 976 (1966) (an erroneous judgment is conclusive between the parties) with Employers Mutual Liability Insurance Co. v. Industrial Commission, 115 Ariz. 439, 565 P.2d 1300 (App.1977) (law of the case inapplicable if different evidence is provided at the second hearing).

Thus, the general rule that the mandate must be followed has always had its exceptions. In Arizona, application of the general principle has been conditioned upon the proviso that the facts and issues on the subsequent proceedings after remand must be substantially the same as those on which the first decision rested. See Commercial Credit Co. v. Street, 37 Ariz. 204, 207, 291 P. 1003, 1004 (1930). The applicability of the "law of the case" doctrine has been limited to instances where the evidence on the second proceeding is substantially the same as that of the first. Beliak v. Plants, 93 Ariz. 266, 267, 379 P.2d 976, 977 (1963).

If on the new hearing the facts are not shown to be different, then the conclusion is that the (Industrial) Commission must follow the law already applied (by the appellate court) to substantially identical facts.... Correspondingly, if different evidence is presented in the hearings de novo, then the factual matters should be evaluated against this new evidence and the law of the case might well not be applicable since its application is conditioned upon substantial identicality of facts, issues and evidence.

Employers Mutual Liability Insurance Co. v. Industrial Commission, 115 Ariz. at 442, 565 P.2d at 1303 (emphasis supplied).

If the trial court has power to apply different law when the facts have changed, we must, then, consider whether the trial court can apply different law when the law changes between the date of the mandate and the date of the new hearing held in obedience to that mandate. Before discussing this question, it is necessary to deal with the use of the word "jurisdiction" in the numerous Arizona cases already cited and which, in different situations, state that a trial court is "without jurisdiction" to stray from the mandate of the higher court. Arizona authority indicates that the use of the word "jurisdiction" in the law of the case rule is incorrect. In State v. Maxwell, 19 Ariz.App. 431, 508 P.2d 96 (1973), Division One of the Court of Appeals considered whether a criminal defendant was entitled to a trial court hearing on the question of whether, at the time of his guilty plea, he had been given the rights to which he was entitled under the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). On defendant's first appeal, Division Two of the Court of Appeals had held that Maxwell could not seek appellate review of his guilty plea on alleged Boykin defects without first petitioning the trial court to...