Wilson v. Wilson

781 S.W.2d 487, 301 Ark. 80, 1989 Ark. LEXIS 595

• Court: Supreme Court of Arkansas
• Decided: December 18, 1989
• Docket: 89-67
• Status: Published

Opinions

Robert S, Hargraves, Special Justice.

This is the second appeal of this divorce case. Wilson v. Wilson, 294 Ark. 194, 741 S.W,2d 640 (1987). In that case we remanded on two points. First, we held the chancellor abused his discretion in finding that none of the incentive bonus due appellee from his employer was marital property. Secondly, we remanded to permit both parties to fully develop the record regarding the value of appellee’s corporate stock in Orthopedic Associates, Inc.

On remand the chancellor awarded appellant one-half of the incentive bonus after first deducting the income tax liability assessed against the bonus and the amount of a marital debt owed appellee’s corporate employer. The chancellor also determined the value of appellee’s stock interest in Orthopedic Associates, Inc., to be $20,000, the same amount which he had determined at the first trial.

In this appeal, appellant argues only that the chancellor erred by failing to follow the law of the case as mandated in our earlier decision. We hold the doctrine of the law of the case is not applicable to the factual questions which we remanded to the chancellor and we therefore affirm.

The basic issue before us on this appeal is whether the values found by the chancellor on remand violated the mandate of our decision in the first appeal. When this matter was first before us, this court did not undertake to value the appellant’s interest in appellee’s incentive bonus. We merely decided the bonus to be marital property. Likewise, we did not value the appellee’s stock interest in Orthopedic Associates, Inc. We said that on the basis of the record then before us, we thought it apparent that the stock exceeded a value of $20,000, but the evidence was insufficient for us to place a value on the stock. Consequently, we remanded the case for the chancellor to reconsider those issues in light of our decision.

Unlike the dissent, we do not read our decision in Wilson I to hold it was error for the trial court to rely on the stock purchase agreement in evaluating the worth of the professional association. We said the record before us indicated the stock was worth more than the amount prescribed in the stock purchase agreement, but we were unable to place a fair value on the stock from the evidence in that record.

The quantity and quality of the evidence developed on remand is substantially different from the evidence adduced at the initial hearing.

The doctrine of the law of the case cannot be applied to factual questions which were expressly remanded for determination by the trial court. It is conclusive only where the facts on the second appeal are substantially the same as those involved on the prior appeal. The rule does not apply if there is a material change in the facts. Potter v. Easley, 288 Ark. 133, 703 S.W.2d 442 (1986); Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393 (1906).

From his lengthy and reasoned opinion, it is apparent the chancellor properly construed and applied our reasoning in the first appeal to his findings of fact on remand. Even though we consider chancery appeals de novo, we will not reverse unless the trial court’s factual findings are clearly erroneous. ARCP Rule 52(a); Milligan v. General Oil Co. Inc., 293 Ark. 401, 738 S.W.2d 404 (1987). From our review of the record, we cannot say the chancellor’s determination of the value of both the incentive bonus and corporate stock were clearly erroneous.

Affirmed.

Holt, C.J., Newbern and Glaze, JJ., not participating. Marcia L. McIvor, Special Justice, dissents in part and concurs in part. J.R. Buzbee, Special Chief Justice, joins the dissent.