FILED

September 18, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT JACKSON

_______________________________________________________

)

LYNDA KEEN BUTLER, ) Lauderdale County

) Equity No. 7345

 Plaintiff/Appellee. )

)

VS. ) C.A. No. 02A01-9702-CH-00038

)

ARDEN J. BUTLER, JR., )

)

 Defendant/Appellant. )

)

______________________________________________________________________________

From the Chancery Court of Lauderdale County at Ripley.

Honorable Dewey C. Whitenton, Chancellor 

James S. Haywood, Jr., Brownsville, Tennessee

Attorney for Defendant/Appellant.

Herman L. Reviere, Ripley, Tennessee

Attorney for Plaintiff/Appellee.

OPINION FILED:

AFFIRMED AS MODIFIED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)

HIGHERS, J.: (Concurs)
Defendant Arden J. Butler, Jr. (Husband), appeals the trial court’s order which

modified his alimony obligation to his former wife, Plaintiff/Appellee Lynda Keen Butler (Wife).

We affirm the trial court’s modification of the alimony award, but we modify the amount of the

award.

This is the second alimony modification proceeding between these parties. The

parties were divorced in April 1990 after almost thirty-five years of marriage. Pursuant to the terms

of the parties’ property settlement agreement, the final divorce decree ordered the Husband to pay

alimony to the Wife in the amount of $2,500 per month. The Husband was responsible for making

alimony payments to the Wife until one of the following events occurred: (1) the Husband reached

the age of sixty-five years; (2) the Husband died; or (3) the Wife remarried.

In March 1994, the Husband filed a petition to modify the alimony provisions of the

final divorce decree. As grounds for the modification, the Husband alleged that he was very ill and

that his medical condition had adversely affected his earning ability. After conducting a hearing, the

trial court entered an order in October 1994 which reduced the Husband’s monthly alimony

obligation to $1,250.

The current modification proceeding began in April 1996, when the Wife filed a

petition to increase the Husband’s alimony payments and to extend the term of the payments. In

support of her petition, the Wife alleged that the Husband’s financial status had substantially

improved since the date of the last modification proceeding.

At the subsequent hearing on the Wife’s modification petition, held in September

1996, the evidence concerningthe parties’ respective financial circumstances was largely undisputed.

Since the last modification proceeding, the Husband had accepted full-time employment as a

physician with the West Tennessee High Security Facility and Cold Creek Correctional Facility. The

Husband’s annual salary was $125,000, which was more than he earned when he was in private

practice prior to his illness. In contrast, after the trial court’s 1994 reduction of the alimony award,

the Wife applied for and began receiving social security benefits each month. The Wife testified

that, by applying for social security benefits before reaching the age of sixty-five, she knew she was
1See Self v. Self, 861 S.W.2d 360 (Tenn. 1993).

reducing her benefits. She explained that, despite this knowledge, she applied for the benefits after

her alimony was cut in half because she needed the money. At the time of the 1996 modification

hearing, the Wife was receiving approximately $480 per month in benefits. The Wife also was

withdrawing money from an IRA on a monthly basis. The IRA was funded with proceeds from the

property settlement the Wife received in the 1990 divorce. The Wife’s monthly expenses had risen

somewhat since the 1994 modification proceeding, from approximately $1740 to $1815.

The trial court entered an order on September 9, 1996, in which the court ordered the

Husband to pay alimony to the Wife in the amount of $1,250 for the month of September 1996. The

trial court ordered that, thereafter,

Said alimony shall continue in the amount of $1,250.00, less the

$500.00 per month [the Wife] receives from the retirement (IRA)

plan. Therefore, [the Husband] shall actually be required to pay a net

of $750.00. Said payment to begin in October, 1996 and continue

until the death of [the Husband], remarriage of [the Wife], or

modification by the Court.

Unlike its previous alimony awards, the trial court’s modified award did not permit the Husband to

discontinue making alimony payments to the Wife when theHusband reached sixty-five years of age.

Although the trial court extended the term of the Husband’s alimony obligation, the trial court’s

modification further reduced the monthly alimony payments from $1,250 to $750.

On appeal, the Husband contends that the trial court erred in modifying the alimony

award because (1) the award was alimony in solido and, thus, was not subject to modification;1

(2) the Wife failed to demonstrate a change of circumstances which would justify modifying the

alimony award; and (3) the Wife failed to demonstrate that she had made a good-faith effort to

rehabilitate herself. The Wife urges this court to affirm the trial court’s extension of the alimony

award, but contends that the court did not award the Wife an adequate amount. The Wife also

contends that the trial court erred in denying her request for an award of attorney’s fees.

We first conclude that the doctrine of the law of the case precludes the Husband from
contending that the alimony award at issue was not modifiable. Under the law of the case doctrine,

“a decision on an issue of law made at one stage of the case becomes a binding precedent to be

followed in successive stages of the same litigation.” Jones v. Jones, 784 S.W.2d 349, 351 n.1

(Tenn. App. 1989) (quoting 1B James Wm. Moore et al., Moore’s Federal Practice ¶ .404[1]).

Thus, a ruling of the trial court which is not objected to or appealed from becomes binding on the

appellate court as the “law of the case.” Id. at 351 n.1 (citing 5 C.J.S. Appeal & Error § 1464(1)

(1958)). This doctrine “protects litigants from the burdens of repeatedly rearguing issues that have

been decided.” Ladd ex rel. Ladd v. Honda Motor Co., 939 S.W.2d 83, 90 (Tenn. App. 1996).

The doctrine of the law of the case is similar to the doctrine of res judicata in that

both “are founded on a public policy against reopening that which previously has been decided;”

however, there are differences between the two doctrines. Johnson v. Lawrence, 1990 WL 20123,

at *3 (Tenn. App. Mar. 7, 1990), aff’d, 1991 WL 147362 (Tenn. Aug. 5, 1991). Unlike the doctrine

of res judicata, the doctrine of the law of the case is not a limitation on a court’s power. Instead, “it

is a common sense recognition that issues ordinarily need not be revisited once they have been

litigated and decided.” Ladd ex rel. Ladd v. Honda Motor Co., 939 S.W.2d at 90. For this reason,

the doctrine has been described as “a discretionary rule of practice that promotes judicial economy

and consistency.” Id. Moreover, unlike the doctrine of res judicata, the law of the case doctrine “is

confined to matters of law and is ordinarily concerned with subsequent proceedings in the same

case.” Johnson v. Lawrence, 1990 WL 20123, at *3. As one authority has explained,

The law of the case,res judicata, and stare decisis belong to the same

family in that they have in view the termination of controverted

questions of fact and law. The law of the case, however, is

distinguished from res judicata, in that the law of the case does not

have the finality of the doctrine of res judicata, and applies only to

the one case, whereas res judicata forecloses parties or privies in one

case by what has been done in another case, . . . .

Clements v. Pearson, 352 S.W.2d 236, 237 (Tenn. 1961) (quoting 21 C.J.S. Courts § 195).

This court previously has applied the law of the case doctrine to preclude a spouse

from relitigating the modifiability of the provisions of a final divorce decree. In Jones v. Jones, 784

S.W.2d 349 (Tenn. App. 1989), the court also was faced with successive petitions to modify the
alimony provisions of the parties’ final divorce decree. In that case, the final divorce decree required

the husband to pay alimony and to maintain three life insurance policies for the benefit of the wife.

Jones, 784 S.W.2d at 351. In April 1986, the husband petitioned the court to reduce his alimony

obligation and to relieve him of the obligation to maintain one of the life insurance policies. Id. at

350. In denying the husband’s petition, the trial court ruled that the life insurance benefits awarded

to the Wife in the final divorce decree represented a division of marital property and, thus, were not

subject to modification. Id. In November 1987, the husband again petitioned the court to reduce

his alimony obligation. This time, the issue of the life insurance policies arose when the wife filed

a counter-petition for contempt based upon the husband’s failure to maintain the policies for her

benefit. Id. The trial court again refused to modify the life insurance benefits awarded to the wife

in the final divorce decree, and the husband appealed. On appeal, this court held that the husband

could not relitigate the issue of whether the life insurance benefits were modifiable. The court

reasoned:

It is not necessary for this Court to determine whether the

language in the original divorce decree was sufficient to establish that

the life insurance was a division of marital property and therefore not

modifiable by the court in 1986. Even if the Husband could convince

this Court that the language in the decree was ambiguous in that

regard, the trial court’s . . . 1986 order clarified that point. Because

the 1986 order was not appealed from . . . , the holding of the trial

court that the insurance benefits were not modifiable is “the law of

the case.”

Jones, 784 S.W.2d at 351.

Based on the law of the case doctrine, we similarly decline to revisit the issue of the

modifiability of the alimony provision in this case. In the Husband’s 1994 modification proceeding,

the trial court determined that the alimony award to the Wife was modifiable and, consequently,

reduced the Husband’s alimony obligation by half. Because the trial court’s 1994 order was not

appealed, the trial court’s holding that the alimony award was modifiable is now “the law of the

case.” Jones, 784 S.W.2d at 351. Accordingly, we hold that the Husband was precluded from

relitigating this issue in the Wife’s 1996 modification proceeding.

Our holding that the Husband was precluded from contesting the modifiability of the
2See, e.g., Woods v. Woods, 638 S.W.2d 403, 406 (Tenn. App. 1982).

alimony award is further supported by principles of judicial estoppel. Under the doctrine of judicial

estoppel, where a party “states on oath in former litigation, either in a pleading or in a deposition or

on oral testimony, a given fact as true, he will not be permitted to deny that fact in subsequent

litigation.” Melton v. Anderson, 222 S.W.2d 666, 669 (Tenn. App. 1948). Although some decisions

of this court have indicated that the doctrine of judicial estoppel applies only to willful misstatements

of fact,2

 the courts of this state also have recognized that the doctrine may preclude parties from

maintaining inconsistent legal positions in judicial proceedings. See Bubis v. Blackman, 435

S.W.2d 492, 498 (Tenn. App. 1968). Our supreme court recognized this latter principle in Stearns

Coal & Lumber Co. v. Jamestown R.R. Co., 208 S.W. 334 (Tenn. 1919), wherein the court

explained:

While the law of judicial estoppel is ordinarily applied to one

who has made oath to a state of facts in a former judicial proceeding

which in a later proceeding he undertakes to contradict, yet it is

frequently applied, where no oath is involved, to one who undertakes

to maintain inconsistent positions in a judicial proceeding.

Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812 [(1906)].

It has twice been held by this court that one who sues a

corporation as such thereby admits the legality of its incorporation,

and is thereafter estopped from denying such legal organization in

that suit. Lillard v. Porter, 2 Head (39 Tenn.) 177 [(1858)]; Bristol

[Bank &] Trust Co. v. Jonesboro [Banking &] Trust Co., 101 Tenn.

545, 48 S.W. 228 [(1898)].

Another illustration of this rule is found in Norfolk [& Ocean

View Ry.] Co. v. Consolidated Turnpike Co., 111 Va. 131, 68 S.E.

346 [(1910), error dismissed, 228 U.S. 326 (1913)], where an

assignee of a condemnor in the first suit relied on the validity of the

condemnation, and in the latter suit undertook to challenge the

condemnor’s right of eminent domain.

Stearns Coal & Lumber Co., 208 S.W. at 334-35; see alsoMontgomery v. Nicely, 301 S.W.2d 379,

382 (Tenn. App. 1956) (holding that complainant who invoked jurisdiction of chancery court to

establish boundary line was later estopped to deny court’s authority to grant relief sought).

Since the Stearns Coal & Lumber Co. decision, the supreme court has further

distinguished between judicial estoppels arising from sworn statements and those arising from the

assertion of inconsistent legal positions. Allen v. Neal, 396 S.W.2d 344, 346 (Tenn. 1965). Judicial
estoppels arising from sworn statements “are based on public policy upholding the sanctity of an

oath” and do not require a showing of “prejudice to [the] adverse party by reason thereof.” Id.; see

also Monroe County Motor Co. v. Tennessee Odin Ins. Co., 231 S.W.2d 386, 390 (Tenn. App.

1950). In contrast, judicial estoppels arising from the assertion of inconsistent legal positions are

founded on the administration of justice and seek to prevent litigants from unfairly benefitting from

a strategic shift in legal position. Allen v. Neal, 396 S.W.2d at 346. Thus, the application of this

latter doctrine, sometimes referred to as the doctrine of “inconsistent position,” id. at 346-47, is

particularly appropriate where a party has successfully maintained an inconsistent legal position in

prior litigation. See Hamilton Nat’l Bank v. Woods, 238 S.W.2d 109, 114 (Tenn. App. 1948); see

also Home Ins. Co. v. Leinart, 1986 WL 6847, at *1 (Tenn. App. June 20, 1986) (citing Olin’s,

Inc. v. Avis Rental Car Sys., 104 So. 2d 508 (Fla. 1958)). The courts may invoke principles of

judicial estoppel whenever appropriate, regardless of whether the parties have raised it in their

pleadings. Rachels v. Steele, 633 S.W.2d 473, 477 (Tenn. App. 1981); Gilley v. Jernigan, 597

S.W.2d 313, 318 (Tenn. App. 1979).

In accordance with the foregoing authorities, we conclude that principles of judicial

estoppel precluded the Husband from asserting that the alimony award in this case was not

modifiable. In the 1994 modification proceeding, the Husband successfully maintained the legal

position that the alimony award was modifiable. The Husband benefitted significantly from the

assertion of this legal position in that the Husband was relieved of a substantial portion of his

alimony obligation to the Wife. Under these circumstances, the Husband could not, as a matter of

law, “be allowed to advantage himself by taking an inconsistent” position in the 1996 modification

proceeding. Allen v. Neal, 396 S.W.2d at 346 (quoting Johnston v. Cincinnati, New Orleans &

Tex. Pac. Ry. Co., 240 S.W. 429, 436 (Tenn. 1922)).

Having concluded that the Husband may not relitigate the modifiability of the

alimony award, we next address his contention that the record fails to demonstrate a sufficient

change of circumstances to justify the trial court’s modification of the award. See Seal v. Seal, 802

S.W.2d 617, 620 (Tenn. App. 1990) (indicating that modification in alimony must be supported by

evidence of material change in circumstances not contemplated at time of prior decree). Again, we

conclude that the Husband’s contention is without merit. At the 1996 modification hearing, the
undisputed evidence revealed that, while the Wife’s needs had increased somewhat, the Husband’s

ability to pay had increased substantially since the 1994 modification hearing. At the time of the

most recent hearing, the Husband was earning $125,000 per year as a physician, which was even

more than he earned while he was in private practice.

We recognize that a payor spouse’s increase in income, by itself, ordinarily does not

constitute a material change of circumstances justifying a corresponding increase in the spouse’s

alimony obligation. See, e.g., Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258, at *4

(Tenn. App. Oct. 3, 1996); Mahoney v. Mahoney, No. 03A01-9207-CV-00270, 1993 WL 789, at

*3 (Tenn. App. Jan. 5, 1993) (citing Norvell v. Norvell, 805 S.W.2d 772 (Tenn. App. 1990)); but

see Bullers v. Bullers, 1987 WL 10682, at *1 (Tenn. App. May 13, 1987) (affirming increase in

alimony based upon substantial increase in husband’s Air Force retirement income), perm. app.

denied (Tenn. Aug. 3, 1987). As this court has indicated, “there is no rule of law, statutory or

decisional, which entitles one . . . spouse to maintain a parallel lifestyle with the other” subsequent

to a divorce. Lawson v. Lawson, 1989 WL 105652, at *1 (Tenn. App. Sept. 13, 1989); cf. Raines v.

Raines, 1990 WL 115185, at **2-3 (Tenn. App. Aug. 13, 1990) (affirming trial court’s order

increasing alimony payments from $350 to $500 per month where husband’s income increased

significantly after divorce and where wife testified that her standard of living was same as when

parties were married only because of support from her father), perm. app. denied (Tenn. Nov. 5,

1990).

In this case, however, the Husband previously sought, and was awarded, a

modification of the alimony award which reduced by half the amount of alimony the Wife received

each month. Inasmuch as the Wife was required to share the burden of the Husband’s bad fortune,

we think it only equitable that the Wife now benefit from the Husband’s reversal of fortune. We

find, therefore, that this case is distinguishable from cases in which the recipient sought an increase

in alimony based upon increases in the obligor’s income achieved after the divorce. See Ford v.

Ford, 1996 WL 560258, at *4; Mahoney v. Mahoney, 1993 WL 789, at *3. Here, the Wife is not

seeking to improve her standard of living consistent with that of the Husband based upon his recent

increase in income. Instead, the Wife is seeking merely to maintain her current standard of living

now that the Husband’s income has returned to its former level.
Although we affirm the trial court’s order extending the Husband’s alimony

obligation, we agree with the Wife’s contention that the amount awarded was insufficient. At the

modification hearing, the evidence demonstrated that the Wife had a need for alimony, and that the

Husband had the ability to pay alimony, in an amount greater than the $750 awarded by the trial

court. Accordingly, we modify the trial court’s order to provide that, effective October 1996, the

Husband shall begin paying the Wife alimony in the amount of $1000 per month instead of $750.

In affirming the trial court’s order, as modified, we reject the Husband’s argument

that the trial court erred in extending the alimony award because the Wife failed to make a good-faith

effort to rehabilitate herself. This argument is based on Tennessee Code Annotated section

36-5-101(d)(2), which provides that:

An award of rehabilitative, temporary support and

maintenance shall remain in the court’s control for the duration of

such award, and may be increased, decreased, terminated, extended,

or otherwise modified, upon a showing of substantial and material

change in circumstances. Rehabilitative support and maintenance

shall terminate upon the death of the recipient. Such support and

maintenance shall also terminate upon the death of the payor unless

otherwise specifically stated. The recipient of the support and

maintenance shall have the burden of proving that all reasonable

efforts at rehabilitation have been made and have been unsuccessful.

T.C.A. § 36-5-101(d)(2) (1996) (amended by 1993 Tenn. Pub. Acts 243).

We conclude that this statute has no application to the present case because there is

no evidence in the record that the award of alimony to the Wife was intended to be rehabilitative.

See T.C.A. § 36-5-101(d)(1) (1996) (distinguishing awards for rehabilitative support and

maintenance from alimony in solido and periodic alimony). In fact, the record suggests just the

opposite. At the time the final divorce decree was entered, the Wife was fifty-eight years of age and

had not worked outside the home in over thirty years. The final divorce decree did not describe the

alimony awarded as being rehabilitative, and at the 1996 modification hearing, the Husband offered

no testimony or evidence to support his contention that the parties intended for the award to be

rehabilitative. We recognize that the “current statutes governing spousal support reflect a preference

for temporary rehabilitative support as opposed to long-term support.” Wilson v. Moore, 929
S.W.2d 367, 375 (Tenn. App. 1996) (citing T.C.A. § 36-5-101(d)(1)). In this case, however, there

simply is no evidence to support the Husband’s contention that this award was ever designed to

rehabilitate the Wife.

Finally, we affirm the trial court’s decision to require the parties to pay their own

attorney’s fees. The decision to award attorney’s fees in divorce proceedings lies within the sound

discretion of the trial court and will not be disturbed on appeal unless the evidence preponderates

against the court’s decision. Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. App. 1992). In this case,

the Wife appears to have sufficient resources with which to pay her own attorney’s fees, particularly

in light of our affirmance of the trial court’s alimony award, as well as the Wife’s other sources of

income and the property awarded to her in the original divorce proceeding. Accordingly, we

conclude that the trial court did not err in declining to award the Wife her attorney’s fees incurred

in this modification proceeding. Thompson v. Thompson, 797 S.W.2d 599, 605 (Tenn. App. 1990).

As modified, the trial court’s judgment is affirmed and this cause remanded for

further proceedings. Costs of this appeal are taxed to the Husband, for which execution may issue

if necessary.

____________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

HIGHERS, J. (Concurs)