Vandiver v. Banks

Annotate this Case
Sandra VANDIVER v. Ronald W. BANKS

97-272                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


1.   Appeal & error -- law-of-case doctrine discussed. --  In the
     doctrine of law of the case, the decision of a first appeal
     becomes the law of the case and is conclusive of every
     question of law or fact decided in the former appeal and also
     of those that might have been, but were not, presented; the
     doctrine of the law of the case prevents an issue raised in a
     prior appeal from being raised in a subsequent appeal unless
     the evidence materially varies between the two appeals.     

2.   Appeal & error -- law-of-case doctrine applicable -- appellee
     barred from having issues reconsidered on review. -- Where the
     parties' case before the supreme court was essentially the
     same as the ones previously heard by the chancellor and
     decided by the court of appeals, appellee was barred it having
     them reconsidered on review.

3.   Appeal & error -- argument without legal authority -- nonsuit
     argument without merit. -- Appellee's argument that the law of
     the case was inapplicable because appellant nonsuited on
     remand at one stage of litigation was meritless and made
     without citation to legal authority; this nonsuit argument, if
     accepted, would have the result that any plaintiff losing an
     appeal could avoid an appellate court's mandate in a case
     merely by voluntarily dismissing suit upon remand.

4.   Appeal & error -- unpublished opinion by court of appeals -- 
     Appellee's argument that the law of the case was inapplicable
     because the court of appeals' mandates were set out in
     unpublished opinions was without merit; Rule 5-2(d) of the
     Rules of the Supreme Court clearly provides such opinions may
     be cited or referred to where an issue such as res judicata,
     collateral estoppel, or law of the case is involved. 

5.   Appeal & error -- law of case applicable -- review on remand
     not same as petition for review. -- Appellee's argument that,
     because the supreme court is superior to the court of appeals,
     it need not be bound by the law-of-the-case doctrine was
     without merit; although the supreme court, on a petition for
     review, would not be bound by a court of appeals' decision,
     that was not the situation in thiis case; here, review of the
     correctness of the trial court's rulings was on remand after
     the decisions rendered by the court of appeals; appellee's
     argument concerning appellate superiority was inapposite to
     the matter at hand.


6.   Evidence -- chancellor's admission of parol evidence was error
     -- whether jurisdiction expressly reserved was irrelevant. --
     It was error for the chancellor to admit parol evidence to
     determine whether the California court reserved jurisdiction
     to determine the right to the pension; whether jurisdiction
     was expressly reserved was irrelevant because the court of
     appeals had held in its second opinion that the chancellor had
     erred in determining he lacked jurisdiction to entertain a
     common-law partition action, and so the court of appeals
     decision as to jurisdiction was law of the case and the
     chancellor was obliged to follow its mandate; secondly,
     appellant was not seeking to modify the California divorce
     decree; rather, she was simply asserting her partition action,
     which was clearly permissible under California law; hence,
     appellant's partition action had nothing to do with the law of
     contracts, to which the parol evidence rule is related, and
     the admittance of such evidence was error.     

7.   Divorce -- payments made above and beyond those mandated by 
     divorce decree -- common-law voluntary-payment rule
     applicable. -- Appellee pled alternatively the affirmative
     defense of setoff, and filed a counterclaim, seeking to
     recover the amount for payments he made above and beyond those
     mandated by the divorce decree, including moving expenses,
     increases in spousal support, and life insurance premiums; the
     common-law voluntary-payment rule states that when one pays
     money on demand that is not legally enforceable, the payment
     is deemed voluntary, and absent fraud, duress, mistake of
     fact, coercion, or extortion, voluntary payments cannot be
     recovered; where appellee made no such showing, the payments
     in question as to both the defense of setoff and the
     counterclaim were voluntary, and, as such, were not
     recoverable.  

8.   Appeal & error -- matters could have been raised in two
     earlier appeals -- matters barred by law of case. --   
     Although the court of appeals' opinions made no specific
     references to appellee's defenses involving laches and
     equitable estoppel, these are matters that appellee could have
     raised in the earlier two appeals but did not; consequently,
     these claims were barred by the law of the case.
     
9.   Divorce -- trial court reversed and case remanded -- appellant
     entitled to share of appellee's retirement benefits under
     California law. -- The trial court was reversed, and the
     supreme court remanded the case, directing the chancellor to
     partition appellee's pension and to award appellant her
     community property share; the supreme court determined that
     appellant's award should be computed using applicable
     California law; under California law, appellant was entitled
     to a percentage of the gross pension payments appellee had
     received since the filing of her partition action in 1990.

     Appeal from Lonoke Chancery Court; Charles A. Walls,
Chancellor; reversed and remanded.
     Clearly Law Firm, P.A., by:  Robert M. Clearly, Jr., for
appellant.
     Gruber Law Firm, by:  Wayne A. Gruber, for appellee.   

     Tom Glaze, Justice.
     This case arises from appellant Sandra S. Vandiver's and
appellee Ronald W. Banks's divorce granted in California on May 27,
1982.  Banks was a member of the U. S. Air Force and possessed a
fully vested, non-disability military retirement pension.  The
California court approved the parties' marital settlement
agreement, which permitted that court to reserve jurisdiction over
Banks's Air Force retirement benefits; it subsequently incorporated
the parties' agreement into their divorce decree.  Vandiver later
moved to Missouri, and Banks to Lonoke County, Arkansas. 
     In 1990, Vandiver filed suit against Banks in Lonoke County
Chancery Court, seeking to enforce her community property rights to
pension benefits under the 1982 California divorce, but the
chancellor, applying Arkansas law, dismissed Vandiver's lawsuit. 
On appeal, the court of appeals, on April 8, 1992, issued an
unpublished opinion, holding that the chancellor erred in failing
to apply California law.  The court of appeals held California law
applied because the parties' agreement was made in California and
all significant events concerning the agreement had occurred in
that state.
     On remand, Vandiver amended her complaint to seek partition of
the military pension.  Banks filed another dismissal motion which
the chancery court, again, granted.  In dismissing, the chancery
court found the following:
     (1)  A final adjudication on the issue of military benefits
had been made and decided in the 1982 California divorce
proceeding;
     (2)  the California court took judicial action regarding the
benefits by striking through the language in its order which would
have reserved jurisdiction on the subject;
     (3)  res judicata and collateral estoppel barred any further
claim for pension benefits; and
     (4)  California law, Civil Code  5124, a statute of
limitations, barred any adjudicated claim for such benefits, if
sought after January 1, 1986.
     Vandiver appealed a second time, and on October 13, 1992, the
court of appeals, in another unpublished opinion, reversed,
disagreeing with all the chancellor's findings.  The court of
appeals reached and decided the following issues:
     (1)  California law applies to the case, and the trial court
erred in holding it lacked jurisdiction to entertain a common-law
partition action.  It held that California law permitted Vandiver
to file a partition action to enforce her right to military
retirement pension benefits.
     (2)  In applying California law, citing Berry v. Berry, 265 Cal. Rptr. 338 (Cal. App. 4 Dist. 1989), and Henn v. Henn, 605 P.2d 10 (Cal. 1980), Vandiver is not barred from a division of pension
rights where the parties' divorce decree failed to reflect an
earlier adjudication of those rights.  Specifically, the appellate
court held res judicata and collateral estoppel did not bar
Vandiver's claim for benefits.
     (3)  The trial court erred in finding that the California
court had made other provisions in the California decree in lieu of
pension benefits since the California court struck through the
decree provision which read, "The court reserves jurisdiction on
the issue of the disposition of [Banks's] retirement benefits from
the United States Air Force."  The court of appeals held the
California court's deletion of this language meant only that the
matters it dealt with were omitted and were not an adjudication of
retirement benefits.
     (4)  The trial court erred in applying  5124 of California's
Civil Code, which barred a spouse from filing suit for a division
of retirement benefits after January 1, 1986.  The appellate court
held that  5124 applied only to spouses whose final decree had
previously adjudicated military benefits to be the separate
property of the military retiree.  Here, as noted above, the
appellate court held that Banks's benefits had not been adjudicated
and that no statute of limitations barred Vandiver's action.   
     After the court of appeals' second reversal and remand of this
case, Vandiver voluntarily nonsuited her claim, but timely refiled
it on August 26, 1994, and alleged the same claims set out in her
original complaint.  Vandiver's complaint stated that, as a tenant
in common, she had a property interest in Banks's retirement
pension under California law and is entitled to partition of the
pension.  Banks answered, raising the following defenses:
     (1)  The trial court had no jurisdiction of Vandiver's
partition suit.
     (2)  Banks disagreed with the meaning that the court of
appeals gave to the California court's striking of language in the
parties' divorce decree, providing the California court reserved
jurisdiction on the issue of Banks's retirement benefits.
     (3)  Banks asserted laches and estoppel, arguing twelve years
had passed before Vandiver filed her claim.
     (4)  Banks alleged that he was entitled to a setoff because he
had paid monies and conveyed property to Vandiver in excess of his
obligation under the California decree.
     Banks further counterclaimed against Vandiver, setting out
spousal payments for support, moving costs, and life insurance. 
These payments, he alleged, were made in return for Vandiver's
promise not to pursue a community property interest in Banks's
military benefits.  He claims the total payments amount to
$20,118.53.  Banks's present wife, Bette, intervened in the
lawsuit, asserting a property interest in her husband's retirement
pay since she had been married to him for nearly thirteen years. 
     After a trial touching all the issues, the trial court
dismissed Vandiver's action a third time.  On appeal, Vandiver
asserts the trial court erred.  Specifically, she maintains that,
if the trial court had complied with the court of appeals' earlier
rulings as the law of the case, it would have been compelled to
award Vandiver her community property share of Banks's retirement
benefits.  We agree.
     This court, in Griffin v. First Nat'l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994), adhered to the doctrine of law of the case,
quoting the doctrine from Mercantile First National Bank v. Lee, 31
Ark. App. 169, 173, 790 S.W.2d 916, 919 (1990), as follows:  "On
second appeal, as in this case, the decision of the first appeal
becomes the law of the case, and is conclusive of every question of
law or fact decided in the former appeal, and also of those which
might have been, but were not, presented."  See also Alexander v.
Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989).  The doctrine of the
law of the case, stated in other terms, prevents an issue raised in
a prior appeal from being raised in a subsequent appeal unless the
evidence materially varies between the two appeals.  Fairchild v.
Norris, 317 Ark. 166, 876 S.W.2d 588 (1994).      
     Here, as can be seen by reading the mandates of the court of
appeals as set out herein, the parties' case now before us is
essentially the same as the ones previously heard by the chancellor
and decided by the court of appeals.  To summarize, the court of
appeals directed the chancellor (1) to apply California law; (2) to
read the stricken portion of the California divorce decree as
merely having been omitted and not having adjudicated pension
benefits, (3) to assert its jurisdiction over the subject matter
and the parties themselves, and (4) not to bar Vandiver's partition
claim by virtue of limitations ( 5124), res judicata, or
collateral estoppel.  Because these issues were heard earlier by
the chancellor and decided twice by the court of appeals, Banks is
now barred from having them reconsidered in this review.  
     We are cognizant of Banks's argument that the law of the case
is inapplicable here, because (1) Vandiver nonsuited on remand at
one stage of litigation, and (2) the court of appeals' mandates
were set out in unpublished opinions.  However, he cites no legal
authority to support his argument.  If we accepted Banks's nonsuit
argument, any plaintiff losing an appeal could avoid an appellate
court's mandate in a case merely by voluntarily dismissing suit
upon remand.  Also, Banks's suggestion that the court of appeals'
unpublished opinions should not be binding is contrary to the law
in these circumstances, since Rule 5-2(d) of the Rules of the
Supreme Court clearly provides such opinions may be cited or
referred to where an issue such as res judicata, collateral
estoppel, or law of the case is involved.  Banks further submits
that, because this court is superior to the court of appeals, it
need not be bound by the law-of-the-case doctrine.  Although this
court, on a petition for review, would not be bound by a court of
appeals' decision, that is not the situation here.  In this case,
we are reviewing the correctness of the trial court's rulings on
remand after the decisions rendered by the court of appeals.  Thus,
Banks's argument concerning appellate superiority is inapposite of
the matter at hand.
     Vandiver further argues that it was error for the chancellor
to admit parol evidence to determine whether the California court
reserved jurisdiction to determine the right to the pension. 
Again, we agree.  As Vandiver highlighted in her brief, whether
jurisdiction was expressly reserved is irrelevant.  One, the court
of appeals had held in its second opinion that the chancellor had
erred in determining he lacked jurisdiction to entertain a common-
law partition action.  For the same reasons as expressed
previously, the court of appeals decision as to jurisdiction was
law of the case and the chancellor was obliged to follow its
mandate.  Two, Vandiver was not seeking to modify the California
Divorce Decree as Banks alleged.  Rather, Vandiver was simply
asserting her partition action, which is clearly permissible under
California law.  Berry v. Berry, 265 Cal. Rptr. 338 (Cal. App. 4
Dist. 1989).  Hence, Vandiver's partition action had nothing to do
with the law of contracts, to which the parol evidence rule is
related, and the admittance of such evidence was error.  See BMW of
North America, Inc. v. New Motor Vehicle Board, 209 Cal. Rptr. 50
(Cal. App. 3 Dist. 1985) (providing, [u]nder California law, the
parol evidence rule is a fundamental rule of contract law which
operates to bar extrinsic evidence contradicting the terms of a
written contract; it is not merely a rule of evidence but is
substantive in scope).    
     Although Banks requested a dismissal, he pled alternatively
the affirmative defense of setoff, and filed a counterclaim,
seeking the amount of $20,118.53.  This sum, according to Banks,
consists of payments he made above and beyond those mandated by the
divorce decree, including moving expenses, increases in spousal
support, life insurance premiums, and an increase in life insurance
premiums on his policy under which Vandiver is the sole
beneficiary.  In Boswell v. Gillette, 226 Ark. 935, 940, 295 S.W.2d 758 (1956), we applied the common-law, voluntary-payment rule and
noted, "When one pays money on demand that is not legally
enforceable, the payment is deemed voluntary."  TB of Blytheville,
Inc. v. Little Rock Sign & Emblem, Inc., 328 Ark. 688, 946 S.W.2d 930 (1997).  Absent fraud, duress, mistake of fact, coercion, or
extortion, voluntary payments cannot be recovered.  Id.  Banks has
made no such showing.  We hold, therefore, that the payments in
question as to both the defense of setoff and the counterclaim were
voluntary, and, as such, are not recoverable.  
     Finally, although the court of appeals' opinions made no
specific references to Banks's defenses involving laches and
equitable estoppel, these are matters that Banks could have raised
in the earlier two appeals but did not.  Cf. Rule 8(c) of the Rules
of Civil Procedure.  Consequently, these claims, too, are barred by
the law of the case.
     For the reasons above, we reverse the trial court, and remand
the case, directing the chancellor to partition Banks's pension and
to award Vandiver her community property share.  Because California
law has been held to apply in this case, Vandiver's award should be
computed by dividing the total number of months Banks was in the
military while married to Vandiver by the total number of months
Banks was in the military service; the quotient is then divided by
two, and the result is the percentage of the pension that Vandiver
is entitled to receive.  Applying the figures submitted, the
resulting percentage is 37.28%.  Clearly, under California law,
Vandiver is entitled to a percentage of the gross pension payments
Banks has received since the filing of her partition action in
1990.  See Casas v. Thompson, 228 Cal. Rptr. 33 (Cal. 1986). 
Concerning Vandiver's entitlement to benefits due her before the
filing of her action, we remand with directions for the trial court
to consider any facts relevant to the fairness of such payments as
discussed by the California Supreme Court in Casas at pages 46 and
47.
     Reversed and remanded.