Raymond v. Raymond

• Decision Date: 24 April 1984
• Citation: 480 A.2d 718
• Parties: Constance L. RAYMOND v. Laurier T. RAYMOND, Jr.
• Court: Maine Supreme Court

Page 718

480 A.2d 718

Constance L. RAYMOND v. Laurier T. RAYMOND, Jr.

Supreme Judicial Court of Maine.

Argued Jan. 13, 1984.

Decided April 24, 1984.

Kurtz & Myers, Theodore H. Kurtz (orally), South Paris, for plaintiff.

Sayer & Golden, Michael Sayer (orally), Lisbon Falls, for defendant.

Before McKUSICK, C.J., NICHOLS, WATHEN and GLASSMAN, JJ., and DUFRESNE, A.R.J.

McKUSICK, Chief Justice.

On this appeal, his second in the post-judgment divorce litigation, see Raymond v. Raymond, 447 A.2d 70 (Me.1982) [Raymond I ], the husband asks us to reverse an order of the Superior Court (Androscoggin County) that awarded the wife counsel fees incurred by her subsequent to the divorce judgment and interest on overdue alimony under that judgment. The husband contends 1) that by the doctrine of "law of the case" the Superior Court was precluded from awarding the wife counsel fees by its own earlier orders denying her request for fees, and 2) that the Superior Court lacked authority to award interest on the due, but unpaid, alimony installments ordered by the divorce judgment. We deny the appeal.

I. Counsel Fees

The husband's contention that the Superior Court was barred from awarding the wife counsel fees by its own previous orders rests upon his characterization of the procedural history of this post-judgment litigation. After reviewing the record in its entirety, we find no prior judgments or orders precluding the Superior Court from making the award of counsel fees that is here appealed. The record supports the conclusion of the motion justice that, although the Superior Court had entered several orders pertaining to the issue of counsel fees, the court had retained jurisdiction to make a final decision on the matter at the conclusion of the post-judgment proceedings.

The parties were divorced by a judgment entered in Superior Court on January 4, 1980. After the wife remarried, the husband discontinued paying alimony in May of 1981 and filed a motion to suspend the judgment for alimony. The wife filed two motions in response. The first was a motion to enforce the divorce judgment, which requested the court to order the husband to pay the alimony arrearages with interest, plus counsel fees incurred by the wife in prosecuting the motion. The second motion sought award of expenses, including counsel fees, necessary to defend the husband's motion to suspend.

The wife's two motions were heard first on July 13, 1981. The motion justice denied the motion to enforce the divorce judgment but made that denial "subject to said motion being raised, if necessary, subsequent to the court's decision on defendant's motion to suspend, now pending." He also denied the motion requesting counsel fees for the defense of the husband's motion to suspend the judgment for alimony, stating, "The [wife] has sufficient funds to retain counsel in the pending motions at this time."

The husband's motion to suspend was heard by a second Superior Court justice, who presided over the remainder of the post-judgment proceedings, and was denied on February 3, 1982. In his order denying the motion to suspend, the second justice granted the wife leave to renew her motion to enforce the divorce judgment, stating:

The issue of attorney's fees, raised by Plaintiff at the hearing on this motion, is not properly before the Court at this time since the [wife] did not cross-petition for attorney's fees on this motion.

The husband appealed the denial of his motion to suspend to this court, and the wife renewed her motion to enforce. That motion was continued by the Superior Court pending appeal, the justice ruling:

If appropriate, a hearing concerning attorney fees will be held after a decision is rendered on [the husband's] appeal.

After we denied his appeal in Raymond I on June 14, 1982, the husband paid the principal amount of the alimony installment that had previously come due under the January 4, 1980 judgment. The husband reached no settlement with the wife, however, as to counsel fees or interest. On May 27, 1983, the Superior Court denied the husband's motion to dismiss the wife's motion to enforce, finding that it had reserved the question of counsel fees until the merits were "finally resolved." The court awarded the wife counsel fees in the amount of $12,920.08 and interest in the amount of $1,750.00. ¹

At the outset, we note that although there were a number of different motions simultaneously and consecutively pending before the Superior Court, these post-judgment proceedings are brought in a single action and have the purpose of determining the husband's continuing obligation to honor the divorce judgment after the wife's remarriage. The husband's argument that the Superior Court was precluded by the law of the case from awarding counsel fees at the conclusion of the action is based primarily on his interpretation of the first justice's orders of July 13, 1981 ("1981 orders"), denying the wife's motion to enforce the divorce judgment and denying her motion for award of expenses and the second justice's order of February 3, 1982 ("1982 order"), denying the husband's motion to suspend.

The "law of the case" is a phrase applied to two slightly different principles:

More frequently this doctrine is an articulation of the wise policy that a judge should not in the same case overrule or reconsider the decision of another judge of coordinate jurisdiction.

....

Occasionally the same phrase "law of the case" is applied to a slightly different principle; namely, that, absent a showing of essentially different facts, the decision by an appellate court on a given issue is to be followed in the trial court once the case is remanded, and that the decision by an appellate court controls in subsequent proceedings in the same court.

Blance v. Alley, 404 A.2d 587, 589 (Me.1979). See Sprague v. Washburn, 447 A.2d 784, 787 (Me.1982); Grant v. City of Saco, 436 A.2d 403, 405 (Me.1981). Both of these principles are potentially applicable to the facts of this appeal. The first principle is implicated by the 1981 orders, since they were not issued by the second justice who made the 1982 order and who subsequently awarded the wife counsel fees. The second principle potentially governs the preclusive effect of the 1982 order to the extent that the issues addressed in that order were resolved by our affirmance on appeal in Raymond I.

A. The July 13, 1981, orders

Turning first to the 1981 orders, the husband argues that the Superior Court's conditional denial of the motion to enforce limited the wife's right to renew the motion to narrow circumstances that were not present at the time of the award of counsel fees. The husband argues that denial of the motion "subject to said motion being raised, if necessary, subsequent to the Court's decision on defendant's motion to suspend," limited the wife's right to renew the motion to enforce to the situation where the husband continued to refuse to pay alimony even after his motion to suspend was denied. Since the husband paid the arrearage after the denial of his motion to suspend, the argument continues, the wife could not renew her request for counsel fees contained in the original motion to enforce. The husband also argues that the denial of the motion for award of expenses necessary to defend the husband's motion to suspend precluded the wife from subsequently requesting fees incurred in the defense of that motion.

While the meaning of the 1981 orders is not entirely clear, we conclude that the language of both orders, fairly read, fails to support the husband's position. With respect to the denial of the motion to enforce, we agree that in using the words "if necessary" the court limited the right of the wife to renew the motion to the situation where the husband failed to comply with the demands of that motion after an unfavorable disposition of his motion to suspend. We see no reason, however, why the triggering noncompliance should be limited to failure to pay the alimony arrearage, when in fact the motion to enforce from the start demanded counsel fees and interest as well as the principal amount of the back alimony. With respect to the denial of the motion for award of expenses, we note that the motion sought expenses prospectively and was denied by the court on the ground that the wife had "sufficient funds to retain counsel in the pending motions at this time." (Emphasis added) The denial of a prospective request for counsel fees made at the beginning of divorce litigation will not preclude the court from considering award of fees at the conclusion of the proceedings. Compare 19 M.R.S.A. § 722(2) (1981) with 19 M.R.S.A. § 722(3) (1981). See M.R.Civ.P. 80(c).

However, we need not decide which characterization of the 1981 orders was ultimately correct; it is sufficient for purposes of deciding the appeal that the meaning of the orders was ambiguous. While the doctrine of the law of the case is based on important policy considerations, ² it is not applied as rigidly as the doctrine of res judicata. Grant v. City of Saco, 436 A.2d at 405. The doctrine does not "serve as a complete bar to reconsideration of an issue when the prior ruling is provisional or lacks clarity ...." Grant v. City of Saco, 436 A.2d at 405 (emphasis added). See also Sprague v. Washburn, 447 A.2d at 787 (a litigant "may not, except for the most compelling reasons, reopen a question of law that another judge has already clearly decided in the same action") (emphasis added). Given the ambiguity and preliminary nature of the first justice's 1981 orders, it was incumbent on the second justice to place a reasonable interpretation upon those orders in construing their meaning. We cannot say that the second justice's conclusion that those orders did not finally decide the issue of counsel fees was unreasonable.

B. The February 3, 1982, order

In his 1982 order denying the husband's motion to suspend the judgment for alimony, the...