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Kelly v. Kelly

Supreme Court of Arkansas

December 22, 2014


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[Copyrighted Material Omitted]

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Timothy O. Dudley; and Samuel A. Perroni, for appellant.

Cullen & Co., PLLC, by: Tim Cullen; and Shemin Law Firm, PLLC, by: Kenneth R. Shemin, for appellee.

PAUL E. DANIELSON, Associate Justice. HART, J., and Special Justices AMY GRIMES and JODI L. STROTHER dissent. BAKER and HOOFMAN, JJ., not participating.


PAUL E. DANIELSON, Associate Justice

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Appellant John (" John" ) Kelly appeals from the final order and decree of divorce from appellee Christian Snowden Kelly (" Christy" ) that was entered by the Pulaski County Circuit Court. John had appealed from a prior order of that court, and we reversed and remanded the matter. See Kelly v. Kelly, 2011 Ark. 259, 381 S.W.3d 817 ( Kelly I ). In the instant appeal, John raises four assertions of error by the circuit court: (1) that it erred in denying his motion to strike or bar evidence relating to the unequal distribution of certain stock; (2) that it erred in failing to equitably distribute the stock; (3) that it lacked jurisdiction to examine or alter the circuit court's prior ruling on the deficiency from the sale of the marital home; and (4) that it abused its discretion in granting Christy's motion for leave to deposit alimony owed to him into the registry of the court. Christy's father, David Snowden, Sr. (" Mr. Snowden" ) cross-appeals from the circuit court's order, which denied his motion to intervene in the matter, but only if this court fails to affirm the court's order on direct appeal. We affirm the circuit court's order on direct appeal and find the cross-appeal moot.

In the prior appeal, John had argued that the circuit court had erred in finding that certain stock from Tarco Roofing Materials, Inc. (" TRM stock" ) was nonmarital property and in finding him liable for half of the deficiency that resulted from the sale of the marital home. See Kelly I, 2011 Ark. 259, 381 S.W.3d 817. We agreed that the stock was marital property and reversed and remanded the circuit court's order. See id. We further declined to address John's argument relating to the marital-home deficiency in light of our reversal and remand " for further proceedings relating to the division of property." Id. at 9, 381 S.W.3d at 824.

On remand to the circuit court, a flurry of motions was filed by both John and Christy. In addition, Christy's father sought to intervene in the litigation " to pursue an action for rescission of the [TRM] stock he intended to gift to [Christy]." A hearing was held on the motions pending, and on June 19, 2013, the circuit court's final order and decree of divorce was filed. In its order, the circuit court found that Christy was entitled to an award of all the TRM stock " as an unequal distribution pursuant to Ark. Code Ann. § 9-12-315(a)(1)." It further found that neither Christy nor John was entitled to employ self-help measures in solving their difficulties relating to alimony owed by Christy to John and the one-half deficiency resulting from the sale of the marital home owed by John to Christy. To that end, the circuit court ordered both Christy and John to pay any sums owed the other within thirty days. In addition, the circuit court denied Mr. Snowden's intervention motion. John then filed a motion for reconsideration, which was deemed denied. John and Mr. Snowden now appeal.

I. Law of the Case

For his first point on appeal, John argues that the circuit court erred in denying his motion to preclude any argument by Christy for an unequal distribution of the TRM stock. He contends that the doctrine of law of the case barred her from making such an argument, because she did not advance that argument until remand. He further maintains that, in order to argue for an unequal division at this time, Christy was required to advance the argument as an alternative one prior to this court's remand. Christy responds that because the circuit court's original ruling that the TRM stock was nonmarital was in

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her favor, she had no basis for arguing at that time for an unequal distribution of marital property. She contends that it was only after remand that the circuit court was faced with distributing the stock as marital property; therefore, it was at that time, she claims, that she was entitled to present her unequal-distribution argument.

Christy is correct. The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided in a prior appeal. See Clinical Study Ctrs., Inc. v. Boellner, 2012 Ark. 266, 411 S.W.3d 695. The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. See id. The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. See id. The law-of-the-case doctrine specifically provides that in a second appeal, the decision of the first appeal is conclusive of every question of law or fact decided in the former appeal and also of those questions that might have been, but were not, presented. See id.

John contends that, despite the circuit court's ruling in Christy's favor on the nature of the stock, she was required to assert before the circuit court, and on appeal in Kelly I, her position that, if marital, an unequal distribution should be made. However, we have previously rejected such a notion.

In Landers v. Jameson, 355 Ark. 163, 132 S.W.3d 741 (2003), this court observed:

It is true that this court has said time and again that all issues raised or that could have been raised in a first appeal cannot be raised in a second appeal. But this court has never extended the doctrine [of law of the case] to require a prevailing party at the trial level to also obtain a ruling on a constitutional issue that may be an alternative reason to decide the matter in that party's favor. Nor has this court required that same prevailing party to cross appeal as an appellee on that same non-essential constitutional ground, if and when the matter is appealed to an appellate court.

355 Ark. at 173, 132 S.W.3d at 748. See also N.D. v. State, 2012 Ark. 265, 411 S.W.3d 205 (citing Landers ). Prior to the remand, Christy had argued that the TRM stock was nonmarital property, and the circuit court agreed. See Kelly I, 2011 Ark. 259, 381 S.W.3d 817. Christy therefore would be considered the prevailing party before the circuit court on the stock issue; indeed, John appealed the circuit court's ruling on the matter in Kelly I.

Pursuant to Landers, Christy, as the prevailing party on the issue of the TRM stock, was not required to assert alternatively to the circuit court or this court that were the stock marital, an unequal distribution should be made. We therefore hold that Christy was not barred by the law-of-the-case doctrine from seeking an unequal distribution after our holding in Kelly I that the stock was marital property.

II. Inequitable Distribution

John next asserts that the circuit court erred in failing to equitably distribute the stock. He contends that if the circuit court was going to consider an unequal distribution, it was obliged to receive current testimony and evidence on factors such as the financial status of the parties, the current fair-market value of the stock, and the amount of income Christy had received from the stock during the course of the divorce. He further avers that the

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circuit court erred in its unequal distribution of the stock because it made no findings on which it based its decision. Christy responds that there was a fully developed record in the matter that contained ample evidence to allow the circuit court to conduct a full inquiry into the factors required to be considered when making an unequal division and to support the circuit court's decision.

We review division-of-marital-property cases de novo; even though we do so, we will not reverse the circuit court's findings of fact unless they are clearly erroneous, or against the preponderance of the evidence. See Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007). The division of property itself is also reviewed, and the same standard applies. See id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. See id. In order to demonstrate that the circuit court's ...

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