Paul v. Paul

• Decision Date: 27 July 1981
• Docket Number: 5473,Nos. 5472,s. 5472
• Citation: 631 P.2d 1060
• Parties: Norina D. PAUL, Appellant (Plaintiff), v. Theodore R. PAUL, Appellee (Defendant). CENTRAL WYOMING LAW ASSOCIATES, P.C., a Wyoming professional corporation, Appellant (Plaintiff), v. WYMARD & WYMARD, Attorneys at Law, a Pennsylvania partnership, and Norina D. Paul, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1060

631 P.2d 1060

Norina D. PAUL, Appellant (Plaintiff), v. Theodore R. PAUL, Appellee (Defendant).

CENTRAL WYOMING LAW ASSOCIATES, P.C., a Wyoming professional corporation, Appellant (Plaintiff), v. WYMARD & WYMARD, Attorneys at Law, a Pennsylvania partnership, and Norina D. Paul, Appellees (Defendants).

Nos. 5472, 5473.

Supreme Court of Wyoming.

July 27, 1981.

Kenneth S. Cohen, Jackson, signed the briefs and appeared in oral argument on behalf of Norina D. Paul.

Richard I. Leedy of Hettinger & Leedy, P. C., Riverton, signed the brief and appeared in oral argument on behalf of Theodore R. Paul.

William L. Miller, Riverton, signed the brief and John R. Hursh, Riverton, appeared in oral argument on behalf of Central Wyoming Law Associates, P. C.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROONEY, Justice.

Inasmuch as these two cases grew out of the same controversy and relate to the same subject of litigation, we are determining them together. Case No. 5473 is before us for the first time. Appellant therein, Central Wyoming Law Associates, P. C. (hereinafter referred to as CWLA), represented appellee therein, Norina D. Paul (hereinafter referred to as wife), during the early portion of her divorce action against Theodore R. Paul (hereinafter referred to as husband). Appellee, Wymard & Wymard, was Pennsylvania counsel for wife. CWLA obtained a judgment against wife and Wymard & Wymard for attorney fees in the amount of $27,716.69 with interest and costs. Subsequently, and pursuant to Rule 60(b), W.R.C.P., the district court entered an order that such judgment could be satisfied by payments over a five-year period. CWLA contends that such was error.

Case No. 5472 engendered previous appeals by both parties to the divorce action, Paul v. Paul, Wyo., 616 P.2d 707 (1980). In this appeal, wife contends that the district court was without authority to modify its original judgment and decree as it pertained to the division of the personal property of husband and wife, and that the district court erred by not designating the nature of the securities to be placed in the trust fund established pursuant to the divorce decree to provide a $20,000 annual payment to wife as part of the property division.

We reverse both cases and remand Case No. 5472 with directions to take evidence as is necessary to ascertain whether or not there has been reasonable compliance with the property settlement provisions of the original divorce decree, and, if not, to enforce such compliance.

CASE NO. 5472

In the previous appeal in this matter, we affirmed the judgment and decree of divorce entered July 5, 1979. With reference to the division of personal property, such judgment and decree recited in pertinent part:

"21. That the Plaintiff has requested that she be awarded the items listed in Exhibit 'A' attached hereto and Defendant failed to oppose or rebut this request prior to the Court's opinion letter of May 25, 1979, and has, therefore, waived his rights thereto."

And ordered in pertinent part:

"10. That Plaintiff receive possession and title to those items listed on Exhibit 'A' attached hereto, all items of personal property now in her possession, her miscellaneous personal clothing and effects and those of the parties' minor child, Samantha Paul.

"11. That Defendant receive possession and title to those items of personal property now in his possession, excluding those awarded to Plaintiff herein, and his miscellaneous personal clothing and effects."

The mandate on such affirmance was issued on August 14, 1980. On September 22, 1980, wife filed a motion in the district court seeking to enforce the quoted portions of the judgment and decree. On January 8, 1981, the district court issued the order from which this appeal is taken. It provides in part:

"IT IS ORDERED that the provisions of paragraph 10 of the Judgment and Decree entered on July 5, 1979, which awarded to Norina Paul certain items of personalty described in Exhibit A attached to the Judgment and Decree, be set aside and held to be of no further force and effect, it being the intent of the Court that each party shall hereafter own those items of the personalty which he or she presently has in his or her possession, free from any claim by the other."

In directing this change in its previous order, the district court has exceeded its authority in two respects.

First, it cannot alter an affirmation which has been mandated by the Supreme Court.

"Here the finding of assignment was improper because the trial court had no authority to try any issues other than those directed by the former mandate and opinion or any that were necessary to reach a decision on the mandated issues and which had not already been decided. See Kuhlmann v. Persinger, 261 Iowa 461, 154 N.W.2d 860 (1967); Van Orman v. Nelson, 80 N.M. 119, 452 P.2d 188 (1969); Michna v. City of Houston, 534 S.W.2d 728 (Tex.Civ.App.1976), reh. denied. * * * " Potter v. Gilkey, Wyo., 570 P.2d 449, 454 (1977).

In the cited case of Van Orman v. Nelson, the New Mexico Supreme Court said at page 189 of 452 P.2d:

" * * * upon remand the district court has only such jurisdiction as the opinion and mandate of this court confer. * * *

"The opinion of the court in the former appeal * * * is the law of the case and is binding upon this court on a second appeal. * * *

"Whether right or wrong, the mandate and direction in the opinion is the limit and extent of the jurisdiction of the district court on remand. * * * "

See Ethredge v. Diamond Drill Contracting Co., 200 Wash. 273, 93 P.2d 324 (1939); Collins v. Simms, 257 N.C. 1, 125 S.E.2d 298 (1962); Ohio Casualty Group v. Parrish, Fla.App., 338 So.2d 910 (1976); Home Indemnity Co. of New York v. O'Brien, 112 F.2d 387 (6th Cir. 1940); Geuder Paeschke & Frey Co. v. Clark, 288 F.2d 1 (7th Cir. 1961), cert. denied, 368 U.S. 826, 82 S.Ct. 47, 7 L.Ed.2d 30 (1961); Annotation: Power of trial court to enjoin enforcement of its judgment as affected by previous affirmance, 85 A.L.R.2d 772 (1962).

"An affirmance amounts to a final determination that the proceeding under review is free from prejudicial error, * * *. After affirmance, the trial court is without power to enjoin the enforcement of its former judgment." 5 Am.Jur.2d Appeal and Error, § 934 as supplemented 1980 Cum.Supp. Also see 5 Am.Jur.2d Appeal and Error §§ 991, 996; and 46 Am.Jur.2d Judgments § 768.

Although the mandate must be followed, the district court may take appropriate action under Rule 60(b), W.R.C.P. on matters not subject of the mandate without first obtaining leave of this court. Standard Oil of California v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976); Ohio Casualty Group v. Parrish, Fla., 350 So.2d 466 (1977); Modine Manufacturing Company v. ABC Radiator, Inc., Fla.App., 367 So.2d 232 (1979). See Annotation: Supreme court's views as to remedies available in supreme court to compel lower court's compliance with supreme court's earlier decision in case, 54 L.Ed.2d 921 (1979); Annotation: Mandamus as appropriate remedy to control action of federal court in civil case supreme court cases, 57 L.Ed.2d 1203 (1979); Annotation: Construction and application of Rule 60(b)(5) of Federal Rules of Civil Procedure authorizing relief from final judgment where its prospective application is inequitable, 14 A.L.R.Fed. 309 (1973).

Among the issues presented on the first appeal were the following:

By the wife:

"1. The trial judge erred in estimating the net worth of the marital estate and the husband's earning capacity, and this factual error prejudiced the property division.

"2. The trial court abused its discretion in determining the property division." (Emphasis added.) Paul v. Paul, supra, 616 P.2d at 709.

By the husband:

"2. The trial court lacked jurisdiction to award some household furnishings which were owned by a corporation; and

"3. The trial court acted arbitrarily in deeming that the husband or the corporation, of which he was a major shareholder, had waived right to the aforementioned furnishings." (Emphasis added.) 616 P.2d at 709.

The disposition of personal property was considered, and questions concerning it disposed of, in the opinion on the first appeal:

"The judgment contemplates that the wife is to have as her sole and separate property, items from their Pittsburgh residence, most of which are fine household furnishings, silver, jewelry, china and other articles of value. The list of these objects, single-spaced, consumes three legal-size pages of paper. The court did not set a value upon these various household furnishings and other items of personalty, but we observe and take judicial notice of the fact that the articles listed are of good quality and high value." 616 P.2d at 710.

"As mentioned earlier, the trial court awarded the wife a lengthy list of furnishings, as well as decreeing that the husband had abandoned any claim he might have to furnishings from the Dubois residence. The husband appeals and claims that the trial judge acted arbitrarily. The trial judge has great discretion in making a property division and we do not find it to have been abused in making this distribution." 616 P.2d at 716.

The mandate on the first appeal read in part:

"It is therefore ordered and adjudged, for the reasons stated in the opinion herein this day delivered and filed, that the judgment of said district court be, and the same is hereby, affirmed.

"NOW, THEREFORE, You are commanded without delay to carry into execution and effect the judgment so as aforesaid rendered by you, in the manner provided by law."

Accordingly, the district court did not have the authority to alter the affirmance by this court of the property division previously decreed by it.

Secondly, and regardless of the affirmation by this court, the district court exceeded its basic authority in attempting to alter the property division previously decreed by it. The general restrictions on a...