# FILED September 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) LYNDA K

EEN BUTLER , ) Laud erdale County ) Equity No. 7345 Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9702-CH-00038 ) ARDEN J. BUTLER, JR. , ) ) Defend ant/Appe

llant. ) )

______________________________________________________________________________ Fr om th e C ha nc er y Co ur t o f La ud er da le Co un ty a t R ip le y. Honorable Dewey C. Whitenton, Chancellor
James S. Haywood, Jr. , Brownsville, Tennessee Attorney for Def endant/A ppellant
. Herman L. Reviere , Ripley, Tennessee Attorney for Plaintiff/Appe llee.

OPINI ON FIL

ED: AFFI RMED AS M ODIFIED AND REMA NDED

FARMER, J. CRAWF ORD, P. J., W.S. : (Concur s) HIGHERS, J. : (Concur s)Defendant Arden J. Butler, Jr. (Husband), appeals the trial court’s order w hich modified his alimonyobligation to his former wife, Plaintiff/Appellee Ly nda Keen Butler (Wife). We affirm the trial court’s modification of the alimony award, but we modi fy the amount of the award.

This is the second alimony modification proc eeding betwe en these p arties. The parties were divorced in April 1990 after almost thir

ty- five y ears of marriag e. Pursua

nt to the terms of the parties’ property

settlement agreement, the final divorce decree ordered the Husband to pa y alimony to the Wife in the amount of $2,500 per month. The Husband was responsible for making alimony pay ments to the

Wife until

one of the

following

events occurred: (1) the Husband reac hed the age of sixty-f

ive year s; (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 co ur t e nt er ed an or de r i n O ct ob er 19 94 wh ic h r ed uc ed th e H us ba nd ’s mo nt hl y a li mony obligation to $1,250.

The curren

t mo dification proceeding bega n in April 1996, when the Wife filed a petition to increase the Husband’s alimony payments and to extend the term of the paym ent s. In support of her petition, the Wife al leged t hat the Hu sband’s f

inancia l status ha

d substant

ially impro ved si nce th e date o f the l ast mo dific ation procee ding.

At the subsequent hearing on the Wife’s modification petition, held in September 1996, the evidence concerning the pa rt ie s’ re sp ec ti ve fi na nc ia l c ir cu ms ta nc es wa s l ar ge ly undisputed
. Since the last modification proceeding, the Husband had ac cepted full-time employme n t as a physician with the W est Te nness ee High Security Facility and Cold Creek Correctional Facility . The Husband’s annual salary

was $125,000, which wa s more tha n he ear ned when he was in

private practice prior to his illness. In contrast, after the trial c ourt’s 1994 reduction of the alimony awar

d, t he Wife applied for and began rec eiving social security benefits each month. The Wifetestifie d that, by apply

ing for social security

benefit s before reaching the a ge of sixty-five, she

knew she was1 See Self v. Se lf , 861 S.W.2d 360 (Tenn. 1993). reducing her bene

fits. She explained that, despite this knowledge, she applied for the benefits af ter her alimon y was cu t in half because she needed the money . At the time of the 1996 modification hearin g, the Wife wa s receiving approximately $480 per month in benefits. The Wife also was withdrawing money from an I RA on a monthly basis. The I

RA was funded

with proceeds from the propert y settlement the Wife received in the 1990 divorce. The Wife’s monthly e xpenses had risen somewhat since the 1994 modification proceeding, fr om approximately $1740 to $1815.

The trial court entered an order on September 9, 1996, in whichthe court ordered the Husbandto pay alimony

to the Wife in the amountof $1,250 for the month of September 1996. The trial court ordered that, thereafter,

Said alimony shall continue in the amount of $1,25 0.00 , less the $500.00 p er month

[the Wife] receives from the retirement (I RA) plan. Therefore, [the Husband] shall actually be required to pay

a net of $750.00. Said payment to begin in Octobe r, 1996 and continue un til the death of [the Husband], remarriage of [the Wife], or modifica tion by the Court.

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

Husband t

o discontinue making alimony pa yments to the Wife when the Hus band reached sixty-f ive year s of age. Alth ough the trial court extended the term of the Husband’s alimony obligation, the trial c ourt’s modification further reduced the monthly alimony pay

ments from $1,250 to $750.

On appeal, the Husband contends that the trial court erred in modifying the alimony award be ca us e ( 1) th e a wa rd wa s a li mo ny in solido and, thus, was not s ubject to mod ification; 1 (2) the Wife failed to d emonstra te a change of circumstanc es which would justify modify ing the alimony award; a nd (3) the

Wife fail ed to demo nstrate t hat she ha

d made a g ood-faith effor t to rehabi li tateherself. The Wife urges this court to affirm the tria l court’s extension of the alimony award, but conte

nds that the court d

id not a w ard the Wif

e an adequate am

ount. The

Wife also contendsthat the tr

ial cour t erred in deny ing her request for an a ward of attorne y’ s fees.

We first conclude that the doctrine of the law of the case precludes the Husband fromcontending that the alimony award a t 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 prec edent to be followedin successive stages of the same litigation.” Jones v. J ones , 784 S.W.2d 349, 351 n.1 (Tenn. App. 1989) (quo ti ng 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 appella te 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 o f res judica ta in that both“are f

ounded on

a public p olicy

agains t reopening that w hich pre viously has been decided ;” however, there aredifferences between the two doctrine s. 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 judica

ta , the doctrine of the law of the case is not a limitation on a court’ s power. Inste ad, “it is a c om mo n s en se re co gn it io n t ha t i ss ue s o rd in ar il y ne ed no t b e r ev is it ed on ce th ey h ave bee n litigatedand decided.” Ladd ex rel. Ladd v. Honda Motor Co. , 939 S.W.2d at 90. For this reason, the doctrine has been describ ed as “a discreti onary

rule of p ractice that promotes judici al econo my and consistency.” Id. Moreover, unlike the doctrine of res judica ta , the law of

the case doctrine “is confined t o matters of law and is ordinarily concerned with subsequent proceeding s in the sam e case.” Johnson v. Lawrence , 1990 WL 20123, at *3. As one authority has explained,

The law of the case, res judica ta , and stare dec isis belong to the same family in that they have in view the termination of cont

rover ted questi ons of

fact and law. The

law of the

case, ho wever, is distinguished from res judica ta , in that the law of the case does not have the finality of the doctrine of res j udic ata , and app lies only to the one case , where as res judica ta forecloses parties or privies in one case by w hat 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 pr

evio u sly has appli ed the la

w of the c ase doct

rine to pr eclude a spouse from relitigating the modifiability of the provisions of a final divorce decree. In Jones v. Jones , 784 S.W.2d 3 49 (Tenn . App. 1989), the court also was faced with succe ssive petitions to modify thealimony

provision s of the pa

rties’ final divorce decree. I n 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 19 86, the hu sb and petitioned the court to reduce his alimony obligation and to re

lieve him of the obligation to maintain one of the life insurance policies. Id. at 350. In deny

ing the husband’s petition, the trial court ruled that the life insurance benefit s awarded to the Wife in the final divorce decree repr esented a division of marital property and, thus, we re not
s ubject to modification. Id. In November 1987, the husband a gain petitioned the court to reduc e 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 t he pol icies for her benefit
. Id. The trial court again r efused t o modify the life insuranc e benef

its awar ded to the wife in the final divorce decree, and the husband appe aled. On appeal, this court held that the husband could not relitigate the issue of whether the life insurance benef its were modifiable. The court reasoned:

It

is not necessary

for this Court to determine whether th e langua ge in the original divorce decree wa s sufficient to establish that the life insurance was a division of marital property and therefore not modifiabl e by t

he court in 1986. Ev en if

the Husband could convince this Court that the language in the de cree w as a mbiguous in that regard, the trial court’s . . . 1986 or der cla rified th at point. Becau se the 1986 order was not appealed from . . . , the h olding of the trial court that the insurance benefits were n ot modifiable is “the law of the case.”

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

Based on the law

of the ca se doctrine, we similarly decline to re visit the issue of the modifiabi lity

of the ali mo ny pr ovi si on i n t hi s ca se. In the Hu sband ’s 199 4 mod ifica tion procee ding, the trial cou

rt deter mi ned that t

h e a li mo ny a wa rd to th e W ife w as mo di fi ab le an d, co ns eq ue nt ly, reduced the Husba

nd’s alimo ny o

bligatio n by

half. B ecause

the trial court’s 19 94 order was not appealed, the trial

court’sholding t

h at the ali mony award w as modifiable is now “the law of the case.” Jones , 784 S.W .2d at 351. Accordingly , we hold that the Husband was precluded from relit igati ng thi s iss ue in t he Wi fe’s 19 96 mo dific ation procee ding.

Our holding t hat the Hu sband wa s preclu ded from contestin g the mod ifiability of the2 See, e.g., Woods v. Woods , 638 S.W.2d 403, 406 (Tenn. App. 1982).

alimony award isfurther supported by principles of judicial estoppe l. 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 f act 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 indicate d that the doctrine of judicia l estoppel applies o nly

to willful m

isstateme nts of fact, 2 the courts of this state also have recognized that the doctrine ma y preclude

parties fro m maintaining i nconsisten t 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. C o. , 208 S.W. 334 (Tenn. 1919), wherein the court explained:

While the law of judicial estoppel is ordinarily a pplied to one who has made

oath to a s tateof fact s in a former judicial proceeding which in a later proceeding he under take s to contrad

ict, yet it is freque ntly applied, where no oath

is involved, to one who undertakes to maintain inconsiste

nt positionsin a ju dici al pro ceedin g. Stamper v. V

enable , 117 Tenn. 557, 9 7 S.W. 8 12 [(1 906) ]. It has twice been held by t his court that one w

ho sues a corporation as such thereby admits the legality of

its incorporation, and is therea

fter est opped fr om deny ing such legal o rganiza tion in that suit. Lillard v. Porter , 2 Head (3 9 Tenn.) 177 [(1858) ]; Bristol [Bank&] Trust

Co. v. Jonesboro [Banking &] Trust Co. , 101 Tenn. 545, 4 8 S.W. 2 28 [(1 898) ]. Another illustration of

this rule is found in Norfolk [& Ocean View Ry.] Co. v. Consolidated Turnpike Co. , 111 Va. 131, 6 8 S.E. 346 [(1910), error

di smissed , 228 U.S. 326 (1913)], where an assignee of a condemnor in the first suit relied on the validity of the conde mnation, and in the latter su it underto ok to challenge t h e condemnor’s right of eminent domain.

Stearns Coal & Lumber Co. , 208 S.W. at 334-35; see also Montgomery v. Nicely , 301 S.W.2d 379, 382 (Tenn. A

pp. 1956) (holding

that comp lainant w

ho invoke d jurisdic tion of ch ancery court to establish boundary line wa s later estopped to deny court’s authority to g

rant relief sought).

Since the Stearns Coal & Lumber Co. decision , th e sup reme court has further distinguished between judicial estoppels arising from sworn statements andthose arising from the assertion of incons istent leg al position s. Allen v. Neal , 396 S.W.2d 344, 346 (Tenn. 1965). Judicialestoppel s arising from sworn statements “are b ased 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 M onroe County Motor Co. v. Tennessee Odin Ins. Co. , 231 S.W.2d 386, 390 (Tenn. App. 1950). In c ontrast, judicial e stoppels a rising f rom the a sserti on of

inconsistent legal positions are foundedon the administr

ation of ju stice an d seek to p revent litigantsfrom unf

airly benefitting from
a strategic shift in legal position. Allen v. Neal , 396 S.W.2d a t 346. Thus , the appl

ication o f this latter doc trine, som etimes referred to as the doctrine of “inconsistent position,” id. at 346-47 , is particularly

appropr iate whe re a par ty h as succe ssfully

maintained an inconsistent legalposition 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) (ci ting Olin’s, Inc. v. Avis Rental Car Sys. , 104 So. 2d 508 (Fla. 1958)). The courts may invoke principles of judicial e stoppel wheneve r approp riate, r egard less of wh

ether the partie s have ra

ised it in their pleading s. Rachels v

. Steele , 633 S.W .2d 473, 47 7 (Tenn. App. 1981 ); Gilley v. Jernigan , 597 S.W.2d 313, 318 (Tenn. App. 1979).

In accord ance with the for egoing authoriti es, we conclude that principles of judicial estoppel preclud

ed the Hu sband fr

om asser ting tha t the alimo ny a

ward in th

is case w as no t modifiable. In the

1994 modif

ication p roceed ing, the Husband s uccessf

ully mainta ined the legal position that the alimony awar d was modifiable. The Husband benefitted significantly from the assertion of this leg al position in that the

Husband w as relie

ved of a s ubstantia

l portion o f his alimony obligation to the Wife. Under these circumstances, the Husband c ould not, as a matter of law, “be allowed to advantage himself by taking an inconsistent” position in the 1996 modification procee ding. Allen v. Neal , 396 S.W.2d at 346 (quot ing Joh nston v. Cinc innati, New O rleans & Tex. Pac. Ry. Co. , 240 S.W. 429, 436 (Tenn. 1922)).

Having concluded that the Husband may not r elitigate the modifiability of the alimony award, we ne xt ad dress 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) (indicatingthat modif ication in alimony must be supported by evidence of material change in circumstanc es not contemplated at time of prior decree). Aga in, we conclude that the Husband’ s contention is without merit. At the 1996 modification hearing, theundisputed evidence revealed that, while the Wife’s needs had increased somewha

t, the Husband’s ability to pay had incr eased su bstantially s i nce the 1994 modification hearing. At the time of the most recent hearing, the Husband wa s earning $125,000 per y ear as a phy sician, which was even more than he earned while he was in private practice.

We recognize that a pay

or spouse’s increase in income, by itself, ordinarily does not consti tutea materi al chang e of cir cumstanc es justify

ing a co rresponding inc

rease in the sp ouse’ 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, 199 3) (ci ting Norvell v . Norvel l , 805 S.W.2d 7 72 (Tenn . App. 199 0)); b u t
see Bullers v. B ullers , 198 7 WL 1068 2, at *1 (Tenn. App. May 13, 1987) (affir

ming inc rease in alimony based upon substantial increase in husband’s Air Force retirement inc ome), perm. app. denied (Tenn. Aug. 3, 1987). As this court has indi cated, “ th ere is no rule of law, statutory or decision al, which entitles one . . . spouse to maintain a parallel lifestyle with the other” subsequent to a divorce. Lawson v. Lawson , 1989 WL 105652, a

t *1 (Tenn . App. Sep t. 13, 1989 ); cf. Raines v. Raines , 1990 WL 115185, at **2-3 (Tenn. App. Aug . 13, 1990) (aff irmi ng trial court’s order increasing alimony pay

ments from $350 to $500 per month whe re husband’s income increased signific antly

after divorce and where wife testified that her standa

rd of living was same as when parties were married only becaus e of sup port from her father), perm. app. denied (Tenn. Nov. 5, 1990).

In this case, however, the Husband previously sought, and wa s awarded, a modification of the alimony awa rd which reduced

by half the amount of a

limony the Wife receive d eachmonth. 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 b enefit f rom th e Hus band ’s revers al of

fort une. We find, theref

ore, tha t this case is disting uishable from ca ses in

which the

recipie nt sough t an incr ease in alimony based upon incre ases in the o bligor’s income achieved after the divorce. See Ford v. Ford , 1996 WL

560258, a

t *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 increa se in income. Inste ad, the Wif e is seek ing mer ely to maintain her current standard of living now that th

e Husband’s incom

e has re turned to its forme r level.Alth ough we affirm the trial court’s order extending the H usband’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 Husbandhad t he ability to pay alimony, in an amount gr eater than the $750 awarded by the trial court. Accordingly , we modify the trial c ourt’s order to pr ovide that, ef fective October 1996, the Husband shall begin pay

ing the Wife alimony in the amount of $1000 pe r month instead of $750.

In affirming the tr

ial cour t’s orde r, as modif

ied, we reject the Husband’s arg ument that the trial court

erred in extending the alimony award because the Wife failed to make a good-f aith effort to rehab ilitate he

rself. T his argument is b ased on Ten nessee Code Annotated section 36-5-101 (d)(2) , which pr

ovides tha

t:

An award o f r ehabilitative, temporary support and maintenance shall re main i n the court’s control for the duration of such award, and

may be incre ased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circ umst ances. Rehabilitative support and maintenance shallterminat

e upon the

death of th e recipien t. Such support and maintenance shall also terminate upon the deat h of the pa

yor unless otherwis e specifically stated. The recipient of th e support and maintenance shall hav e the bur den of pr oving tha t all rea sonable effortsat rehabilitation have be en made a nd have b een unsu ccessf

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

We conclude

that this st

atute ha s no applic ation tothe pres ent case because there is
no evidenc e in the r

ecord th at the aw ard of a

limony to the Wife

was intended to be r

ehabilita tiv e . See T.C.A. § 36-5-101(d)(1) (1996) (distinguishing awa rds for rehabilitative support and maintenance from alimony in solid o and periodic alimony) . In fact, the rec ord suggests just the opposite. At

the time the final divorce decree was e ntered, the Wife was fifty-e ight yea rs of age and had not worked outside the home in over thirty y ears. The final divorce decree did not describe the alimony awarded as being reha

bilitative, and at the 1996 modification hearing, the Husband offered
no testi mony or

evidence to support his contention that the parties intended for the awar d to be rehabilitative. We re cog nize that the “ curren

t statutesgover

ning spousal suppo

rt reflect a preference for temporary r

ehabilitative support as opposed to long-term support .” Wil son v. Moor

e , 929S.W.2d 367, 375 (Tenn. App. 1996) (citing T.C.A. § 36-5-101(d)(1)). I n this case, however, there simply is no evidence to s upport the Hus band’s c ontention that this a

ward wa s ever de signed t o rehabilitate the Wife.

Fi na ll y, we affirm the trialcourt’s decision to require the parties to pay their own attorney’sfees. The decision to award attorney ’s fees in divorce proceeding s lies within the sound discretion of the tri al court and wil l not be disturbed on appeal unless the evidence preponde rates agains tthe 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 a

ttorney ’s fees , particularly in light of our affirmance of the trial cour t’s alimony award, a s well as the Wife’s other sources of income and the prop erty awa

rded 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 f

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

As modified, the tria l court’s judgment is affirmed and this cause rema nded for further proceedings. Costs of this appeal are taxed to the Husband, for which execution may issue if ne ce ss ar y.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)