Raymond v. Raymond

McKUSICK, Chief Justice.

On this appeal, his second in the post-judgment divorce litigation, see Raymond v. Raymond, 447 A.2d 70 (Me.1982) [.Raymond I], the husband asks us to reverse an order of the Superior Court (Androscog-gin County) that awarded the wife counsel fees incurred by her subsequent to the divorce judgment and interest on overdue alimony under that judgment. The husband contends 1) that by the doctrine of “law of the case” the Superior Court was precluded from awarding the wife counsel fees by its own earlier orders denying her request for fees, and 2) that the Superior Court lacked authority to award interest on the due, but unpaid, alimony installments ordered by the divorce judgment. We deny the appeal.

I. Counsel Fees

The husband’s contention that the Superior Court was barred from awarding the wife counsel fees by its own previous orders rests upon his characterization of the procedural history of this post-judgment litigation. After reviewing the record in its entirety, we find no prior judgments or orders precluding the Superior Court from making the award of counsel fees that is here appealed. The record supports the conclusion of the motion justice that, although the Superior Court had entered several orders pertaining to the issue of counsel fees, the court had retained jurisdiction to make a final decision on the matter at the conclusion of the post-judgment proceedings.

The parties were divorced by a judgment entered in Superior Court on January 4, 1980. After the wife remarried, the husband discontinued paying alimony in May of 1981 and filed a motion to suspend the judgment for alimony. The wife filed two motions in response. The first was a motion to enforce the divorce judgment, which requested the court to order the husband to pay the alimony arrearages with interest, plus counsel fees incurred by the wife in prosecuting the motion. The second motion sought award of expenses, including *720counsel fees, necessary to defend the husband’s motion to suspend.

The wife’s two motions were heard first on July 13, 1981. The motion justice denied the motion to enforce the divorce judgment but made that denial “subject to said motion being raised, if necessary, subsequent to the court’s decision on defendant’s motion to suspend, now pending.” He also denied the motion requesting counsel fees for the defense of the husband’s motion to suspend the judgment for alimony, stating, “The [wife] has sufficient funds to retain counsel in the pending motions at this time.”

The husband’s motion to suspend was heard by a second Superior Court justice, who presided over the remainder of the post-judgment proceedings, and was denied on February 3, 1982. In his order denying the motion to suspend, the second justice granted the wife leave to renew her motion to enforce the divorce judgment, stating:

The issue of attorney’s fees, raised by Plaintiff at the hearing on this motion, is not properly before the Court at this time since the [wife] did not cross-petition for attorney’s fees on this motion.

The husband appealed the denial of his motion to suspend to this court, and the wife renewed her motion to enforce. That motion was continued by the Superior Court pending appeal, the justice ruling:

If appropriate, a hearing concerning attorney fees will be held after a decision is rendered on [the husband’s] appeal.

After we denied his appeal in Raymond I on June 14, 1982, the husband paid the principal amount of the alimony installment that had previously come due under the January 4, 1980 judgment. The husband reached no settlement with the wife, however, as to counsel fees or interest. On May 27, 1983, the Superior Court denied the husband’s motion to dismiss the wife’s motion to enforce, finding that it had reserved the question of counsel fees until the merits were “finally resolved.” The court awarded the wife counsel fees in the amount of $12,920.08 and interest in the amount of IIJSO.OO.1

At the outset, we note that although there were a number of different motions simultaneously and consecutively pending before the Superior Court, these post-judgment proceedings are brought in a single action and have the purpose of determining the husband’s continuing obligation to hon- or the divorce judgment after the wife’s remarriage. The husband’s argument that the Superior Court was precluded by the law of the case from awarding counsel fees at the conclusion of the action is based primarily on his interpretation of the first justice’s orders of July 13, 1981 (“1981 orders”), denying the wife’s motion to enforce the divorce judgment and denying her motion for award of expenses and the second justice’s order of February 3, 1982 (“1982 order”), denying the husband’s motion to suspend.

The “law of the case” is a phrase applied to two slightly different principles:

More frequently this doctrine is an articulation of the wise policy that a judge should not in the same case overrule or reconsider the decision of another judge of coordinate jurisdiction.
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Occasionally the same phrase “law of the case” is applied to a slightly different principle; namely, that, absent a showing of essentially different facts, the decision by an appellate court on a given issue is to be followed in the trial court once the case is remanded, and that the decision by an appellate court controls in subsequent proceedings in the same court.

Blance v. Alley, 404 A.2d 587, 589 (Me.1979). See Sprague v. Washburn, 447 A.2d 784, 787 (Me.1982); Grant v. City of Saco, 436 A.2d 403, 405 (Me.1981). Both of these principles are potentially applicable to the facts of this appeal. The first princi-*721pie is implicated by the 1981 orders, since they were not issued by the second justice who made the 1982 order and who subsequently awarded the wife counsel fees. The second principle potentially governs the preclusive effect of the 1982 order to the extent that the issues addressed in that order were resolved by our affirmance on appeal in Raymond I.

A. The July 13, 1981, orders

Turning first to the 1981 orders, the husband argues that the Superior Court’s conditional denial of the motion to enforce limited the wife’s right to renew the motion to narrow circumstances that were not present at the time of the award of counsel fees. The husband argues that denial of the motion “subject to said motion being raised, if necessary, subsequent to the Court’s decision on defendant’s motion to suspend,” limited the wife’s right to renew the motion to enforce to the situation where the husband continued to refuse to pay alimony even after his motion to suspend was denied. Since the husband paid the arrearage after the denial of his motion to suspend, the argument continues, the wife could not renew her request for counsel fees contained in the original motion to enforce. The husband also argues that the denial of the motion for award of expenses necessary to defend the husband's motion to suspend precluded the wife from subsequently requesting fees incurred in the defense of that motion.

While the meaning of the 1981 orders is not entirely clear, we conclude that the language of both orders, fairly read, fails to support the husband’s position. With respect to the denial of the motion to enforce, we agree that in using the words “if necessary” the court limited the right of the wife to renew the motion to the situation where the husband failed to comply with the demands of that motion after an unfavorable disposition of his motion to suspend. We see no reason, however, why the triggering noneompliance should be limited to failure to pay the alimony arrearage, when in fact the motion to enforce from the start demanded counsel fees and interest as well as the principal amount of the back alimony. With respect to the denial of the motion for award of expenses, we note that the motion sought expenses prospectively and was denied by the court on the ground that the wife had “sufficient funds to retain counsel in the pending motions at this time.” (Emphasis added) The denial of a prospective request for counsel fees made at the beginning of divorce litigation will not preclude the court from considering award of fees at the conclusion of the proceedings. Compare 19 M.R.S.A. § 722(2) (1981) with 19 M.R.S.A. § 722(3) (1981). See M.R.Civ.P. 80(c).

However, we need not decide which characterization of the 1981 orders was ultimately correct; it is sufficient for purposes of deciding the appeal that the meaning of the orders was ambiguous. While the doctrine of the law of the case is based on important policy considerations,2 it is not applied as rigidly as the doctrine of res judicata. Grant v. City of Saco, 436 A.2d at 405. The doctrine does not “serve as- a complete bar to reconsideration of an issue when the prior ruling is provisional or lacks clarity_” Grant v. City of Saco, 436 A.2d at 405 (emphasis added). See also Sprague v. Washburn, 447 A.2d at 787 (a litigant “may not, except for the most compelling reasons, reopen a question of law that another judge has already clearly decided in the same action”) (emphasis added). Given the ambiguity and preliminary nature of the first justice’s 1981 orders, it was incumbent on the second justice to place a reasonable interpretation upon those orders in construing their meaning. We cannot say that the second justice’s conclusion that those orders did not finally *722decide the issue of counsel fees was unreasonable.

B. The February 3, 1982, order

In his 1982 order denying the husband’s motion to suspend the judgment for alimony, the second justice refused the wife’s request for counsel fees, finding the issue was “not properly before the Court at this time since the [wife] did not cross-petition for attorney’s fees on this motion.” (Emphasis added) The refusal of the request for fees was contained in a footnote to the part of the order granting the wife leave to renew her motion to enforce. The clear implication was therefore that the court was reserving the question of counsel fees for disposition under the motion to enforce, in which the wife had specifically requested fees. In any event, such was the reasonable interpretation that the second justice later placed on his own order.3 Authority of the court to construe and clarify its own judgments and orders is beyond question. See Bowley v. Bowley, 440 A.2d 332, 333 (Me.1982); Randlett v. Randlett, 401 A.2d 1008, 1010 (Me.1979); Boothbay Harbor Condominium v. Whitten, 387 A.2d 1117, 1120 (Me.1978).

The husband makes two arguments as to why our affirmance of the second justice’s denial of the motion to suspend nevertheless precluded a subsequent award of counsel fees incurred in connection with that motion. The husband first argues that because the wife failed to cross-appeal the denial of her request for fees incurred in connection with defense of the motion to suspend, our affirmance of the denial of the motion precluded a subsequent award of fees. This argument misconceives the doctrine of the law of the case. It is true that the law of the case requires that, absent a showing of essentially different facts, the decision by this court on a given issue is to be followed in the trial court once the case is remanded. Blance v. Alley, 404 A.2d at 589. See 1B Moore’s Federal Practice ¶ 0404[1], at 119, ¶ 0404[4.-3], at 131 (1983). Here, however, the issue of counsel fees was neither raised on appeal nor considered in our opinion in Raymond I. Where the appellate court does not address a particular issue, it does not establish the law of the case on that issue. See Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 1148 n. 18, 59 L.Ed.2d 358 (1979); 1B Moore’s Federal Practice ¶ 0.404[4.-3], at 131; 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478, at 793 (1981), The Superior Court’s earlier determination as to such issues has the same preclusive effect in proceedings after remand only to the extent that determination would have had, if no appeal had been taken. Therefore, notwithstanding our opinion on the appeal, the Superior Court could reasonably construe its prior denial of the motion to suspend as reserving the question of the wife’s attorney’s fees, both for the defense against the husband’s motion to suspend and for prosecution of her motion to enforce, until disposition of the latter motion. See Bowley v. Bowley, 440 A.2d at 333.

The husband next argues that because this court does not entertain appeals from nonfinal judgments, see Sylvester v. Sylvester, 445 A.2d 674 (Me.1982), our consideration of the husband’s appeal of the denial of the motion to suspend in Raymond I rendered that order a final one, and our affirmance without a remand deprived the Superior Court of jurisdiction to entertain further proceedings in the case. This argument sets the final judgment rule on its head. It is true that this court will dismiss an appeal of a post-judgment di*723vorce motion where the Superior Court has not yet decided the issue of counsel fees. Id. However, where this court fails to recognize that the Superior Court has reserved the issue of fees and therefore through oversight accepts a premature appeal, as apparently we did in Raymond I, our consideration of the appeal will not transform the Superior Court’s order into a final judgment contrary to its express terms. The mistake of this court will not later deprive the Superior Court of continued jurisdiction to consider the question of counsel fees, which it had reserved.

Thus, the Superior Court properly determined that it was not precluded by the 1981 orders or the 1982 order from awarding the wife counsel fees.

We must address one final issue with respect to the award of counsel fees. When it became apparent that, at the hearing on the motion to suspend, the wife’s chief attorney would have to testify as to agreements between the parties leading to the original divorce judgment, a second attorney was specially retained to represent the wife in that hearing. On appeal, the husband challenges the amount of the fees awarded to this second attorney. The Superior Court justice had before him testimony of the wife’s chief attorney as to the services rendered by the special counsel, the reasons for retaining him, and the fact the wife had already paid his bill, which was itself put in evidence. The justice, who also had observed the performance of the special counsel in the hearing for which he had been engaged, cannot be said to have committed any abuse of discretion in setting the fees. See Bryant v. Bryant, 411 A.2d 391, 395 (Me.1980).

II. Post-Judgment Interest on Unpaid Alimony

The January 4, 1980, divorce judgment provides:

It is further ordered that LAURIER T. RAYMOND, JR. pay to CONSTANCE L. RAYMOND ... One Thousand one hundred fifty and 00/100 dollars ($1,150.00 [per month] as alimony toward the support of CONSTANCE L. RAYMOND. Said periodic payments shall continue for five (5) years from January 1, 1980, but shall terminate on the death of CONSTANCE RAYMOND, should that first occur.... It is further ORDERED that the amount of alimony for CONSTANCE L. RAYMOND’S separate support and maintenance shall not be increased or decreased.

From May 1, 1981, until we affirmed the denial of his motion to suspend in July of 1982, see Raymond I, the husband failed to make the $1,150.00 monthly alimony payments as they came due under the judgment. In its May 27,1983, order, the Superior Court awarded the wife interest on the overdue alimony payments, holding that

the interest statute which provides for post-judgment interest on sums due but not paid applies to the delinquent payments in the case. 14 M.R.S.A. § 1602.

On appeal the husband does not contest the amount of post-judgment interest awarded,4 but does argue that the Superior Court lacked any authority at all to award post-judgment interest on the installments commencing on their respective due dates.

The Superior Court’s authority to award the wife interest on the withheld alimony payments must exist, if at all, by virtue of an enabling statute. See Batchelder v. Tweedie, 294 A.2d 443 (Me.1972); Cary v. Whitney, 50 Me. 337, 338 (1863); Kendall v. Lewiston Water Power Co., 36 Me. 19, 22 (1853). The version of 14 M.R.S.A. § 1602 in effect at the time the Raymond divorce action was commenced, provided in pertinent part:

In all civil actions ... [f]rom and after the date of entry of an order for judgment, including the period of pendency of an appeal, interest shall be allowed at the rate of 10% per year.

*72414 M.R.S.A. § 1602 (1980).5 The applicability of section 1602 to the case at bar turns on whether a divorce case is a “civil action” and whether a judgment of divorce, including its orders for the payment of money, is an “order for judgment” within the meaning of that statute. We are convinced that the statute does apply by its plain terms and therefore affirm the Superior Court’s award of post-judgment interest.

Post-judgment interest in “all civil actions” was first provided by a complete revision of section 1602 in 1969. See P.L. 1969, ch. 397, § 1 (repealing and replacing 14 M.R.S.A. § 1602). The meaning of the terms “judgment” and “civil actions” as used in the 1969 amendment must be assessed in reference to the common meaning of those terms at the time of the 1969 amendment was enacted. See Town of Arundel v. Swain, 374 A.2d 317, 320 (Me.1977) (statutory terms are to be construed according to their “natural import in common and approved usage”); see also State v. Snow, 383 A.2d 1385, 1388 (Me.1978). The reference point for the meaning of both “civil action” and “judgment” was in 1969, as it is today, the Maine Rules of Civil Procedure. Rule 2 as originally promulgated to be effective December 1, 1959, and as it still appears, provides:

There shall be one form of action to be known as “civil action.”

Since December 1, 1959, Rule 81(a) has provided:

A civil action under these rules is appropriate whether the suit is cognizable at law or in equity and irrespective of any statutory provision as to the form of action.

Rule 80, dealing explicitly with divorce actions, has from the beginning acknowledged the civil nature of divorce cases.6 It provides, as it has since its promulgation:

These Rules of Civil Procedure shall apply to actions for divorce, except as otherwise provided in this rule.

Rule 80 contains no language exempting divorce proceedings from the pronouncements of Rules 2 and 81(a) that only a single form of action, known as a “civil action,” survives the 1959 adoption of the modern rules of procedure.

With respect to the term “judgment,” Rule 54(a) provides:

“Judgment” as used in these rules includes a decree and any order from which an appeal lies.

This language plainly encompasses judgments for divorce. Rule 80 itself refers to the term “judgment” in connection with the disposition of divorce proceedings.

Thus, at the time of enactment of the 1969 revision of section 1602, the terms “civil action” and “judgment” had acquired clearly defined meanings by which “civil action” encompassed a divorce proceeding and “judgment,” an alimony decree. The legislature’s awareness of the nomenclature of the rules is plainly evidenced by its repeated efforts to modernize statutes on the books to conform to the language of the rules. In 1959 and again in 1961, major *725legislation was enacted repealing all statutory references to obsolete forms of action, pleadings, and other terminology, and replacing them with language consistent with the single form of “civil action” created by the Maine Rules of Civil Procedure. See P.L.1959, ch. 317; P.L.1961, ch. 317. Both the 1959 act and the 1961 act made changes in the statutes pertaining to divorce so as to bring those statutes into conformity with the then new civil rules. See P.L. 1959, ch. 317, §§ 297-301; P.L.1961, ch. 317, §§ 553-557. See also “Memorandum to the Judiciary Committee Prepared by Richard H. Field” reproduced in Field & McKusick, Maine Civil Practice 652-72 (1st ed. 1959).

It was against this statutory and rule-making background that in 1969 the legislature provided for the first time for post-judgment interest in “all civil actions.”7 The Superior Court’s interpretation of section 1602 is the correct one. The Raymond divorce judgment, including its alimony provision, was a judgment entered in a civil action, and the husband withheld payments due under that judgment at his peril. Section 1602 makes no exceptions to the rule that post-judgment interest must be paid in any civil action,8 and we can divine no policy considerations that would have led the legislature to treat an alimony obligor under a court order any differently than any other judgment debtor. We are here concerned with a money judgment that calls for installment payments as alimony. A divorce judgment equally well might call for one spouse to pay a lump sum to the other as, for example, a payment in lieu of alimony or one to carry out a division of marital property. By the unrestricted language of section 1602, as well as by any reasoned principle, either a lump sum or installment money judgment, including one entered in connection with dissolving a marriage, should carry post-judgment interest.

We cannot read the legislature’s enactment in 1979 of the Alimony and Support Enforcement Act, 19 M.R.S.A. § 771 et seq. (1981), as a repeal by implication of the preexisting right of a judgment creditor on a money judgment in a divorce action to enforce it by execution and other existing means, with post-judgment interest being awarded as a matter of course. Note, in this connection, that ever since the enactment of P.L.1959, ch. 317, § 298, a part of the omnibus bill revising all the Maine statutes to conform to the then new Rules of Civil Procedure, use of attachment of real and personal property or on trustee process has been authorized in divorce actions. See 19 M.R.S.A. § 692 (1981). The Alimony and Support Enforcement Act, which applies to a wide variety of orders *726for the payment of alimony or support and “for payment of related costs and counsel fees,” id., § 771, contemplates that the payee will get a second judgment and thereafter can enforce that new judgment by a variety of means. See id., § 774. The remedies of the 1979 act are cumulative, rather than substitutional, to those previously available by statute and rule.

In other jurisdictions, it is the nearly universal rule that a general statute providing interest on money judgments applies to alimony payments, whether in lump sum or installments, after they have become due. See, e.g., In re Marriage of Hoffee, 60 Cal.App.3d 337, 131 Cal.Rptr. 637 (1976); Strand v. Despain, 79 Idaho 304, 316 P.2d 262 (1957); Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961); Scott v. Scott, 19 Utah 2d 267, 430 P.2d 580 (1967); Roberts v. Roberts, 69 Wash.2d 863, 420 P.2d 864 (1966). See also 24 Am.Jur.2d Divorce and Separation § 763 (1983).9 To hold otherwise would allow the obligor to profit by a deliberate disregard of the court’s judgment. It would be contrary to public policy to erect such an obvious disincentive to a divorced party’s timely discharge of his decretal obligation to his former spouse. The Superior Court properly awarded interest on the unpaid alimony that from time to time became overdue by the terms of the January 4, 1980, judgment.

III.

The wife has requested this court to award her counsel fees and expenses on the present appeal. We have long ago declared that appropriate procedure requires this request to be addressed to the Superior Court by motion on remand. See Prue v. Prue, 420 A.2d 257, 260 (Me.1980); Strater v. Strater, 159 Me. 508, 520-22, 196 A.2d 94, 100-01 (1963).

The entry is:

Judgment affirmed.

Remanded to the Superior Court for further proceedings consistent with the opinion herein.

NICHOLS and GLASSMAN, JJ., concurring.

. The husband does not contest the amount of the interest awarded, but does contest the authority of the Superior Court to award any interest at all.

. “[T]he principle of the ‘law of the case,’ discourages judge-shopping, promotes orderly conduct of litigation, and serves the interest of finality and intracourt comity." Sprague v. Washburn, 447 A.2d 784, 787 (Me.1982).

. The second justice consistently maintained this position after the denial of the motion to suspend. In his order continuing the renewed motion to enforce pending appeal of the order denying the motion to suspend, the second justice stated:

If appropriate, a hearing concerning attorney fees will be held after a decision is rendered on [the husband’s] appeal.

. The parties stipulated that if the Superior Court had authority to award post-judgment interest, the amount of such interest on the overdue alimony installments was $1,750.

. At the time of the entry of the judgment in this action on January 4, 1980, 14 M.R.S.A. § 1602 (1980) provided in full:

In all civil actions, except those actions involving a contract or note which contract or note contains a provision relating to interest, interest shall be assessed from the date on which the complaint is filed in court, provided that if the prevailing party at any time requests and obtains a continuance for a period in excess of 30 days, interest will be suspended for the duration of the continuance. From and after the date of entry of an order for judgment, including the period of the pendency of an appeal, interest shall be allowed at the rate of 10% per year.

Subsequent amendments have increased the rate of post-judgment interest and have made other changes not relevant to the issue of the application of the comprehensive post-judgment interest statute to divorce judgments. See P.L. 1979, ch. 655; P.L.1981, ch. 162; P.L.1983, ch. 427 (repeal and replacement).

. As Professor Field wrote in his Reporter's Notes (Dec. 1, 1959) to M.R.Civ.P. 80, "[a]n action for divorce or annulment is a suit of a civil nature and so within the coverage of these rules ....’’ 2 Field, McKusick & Wroth, Maine Civil Practice 268 (2d ed. 1970).

. Given that statutory and rulemaking background, we reject the argument that by using the term “civil actions” the legislature meant to exclude divorce actions because they are statutorily created, see Wood v. Wood, 407 A.2d 282, 285-86 (Me.1979), and are ecclesiastical in origin, see Preston v. Reed, 141 Me. 386, 392, 44 A.2d 685, 687 (1945). By adopting the term "civil action" that by then had a well-established, comprehensive meaning, the 1969 legislature brooked no exception to the new statutory provision governing post-judgment interest. If the court were to reach another conclusion, it would be moving back toward the old forms of action, under which each type of proceeding had its own set of rules. There are some special rules applicable to divorce actions, but they are limited to those circumstances expressly set forth in M.R.Civ.P. 80 or the statutes.

. Under the present version of the statute the award of post-judgment interest is no longer mandatory:

On petition of the nonprevailing party and on a showing of good cause, the trial court may order that interest awarded by this section shall be fully or partially waived.

14 M.R.S.A. § 1602-A (Supp.1983-1984). If the present post-judgment interest statute had been applicable at the time Mr. Raymond withheld alimony payments in a good faith reliance upon Bubar v. Plant, 141 Me. 407, 44 A.2d 732 (1945), the trial judge might have been induced to waive all or part of the post-judgment interest during the pendency of his first appeal to this court. That reliance, however, has no relevance under section 1602 in the form in effect in 1980, which gave a judgment creditor the unqualified right to post-judgment interest regardless of a good faith (but unsuccessful) appeal from a money judgment by the judgment debtor.

. Any concerns about difficulties in computing interest on installment payments due under a divorce judgment are no more serious than exist in regard to any money judgment involving installment payments. Those concerns have not prevented other states from adopting the same broadly applicable post-judgment interest provision that we conclude the Maine legislature enacted in 1969. See also the present provision for waiver. See n. 8 above.