dissenting. In our earlier opinion we simply said David Potter “owns a separate interest in the lot and house in the amount of $9,565.08 which sum is directly traceable to the proceeds of the sale of his separate property owned prior to the marriage.” 280 Ark. at 48, 655 S.W.2d at 388. Contrary to the suggestion of the majority opinion on this second appeal, our first opinion did not say anything about limiting David Potter’s interest in the present value of the home to that amount. As the majority says, we cited Tibbetts v. Tibbetts, 406 A.2d 70 (Me. 1979), for the proposition that Mr. Potter is entitled to property acquired during the marriage in exchange for property he owned prior to the marriage.
Our first opinion did not say it clearly, but the briefs in that case, and the ones before us now, show that the $9,565.08 was money received by Mr. Potter from sale of property he owned before the marriage which was invested directly in the property in question here. He argued on the first appeal as he argues now that he is entitled not just to his $9,565.08 investment but to that portion of the current value of the property which represents increase in this initial investment of nonmarital property. I doubt our first opinion has to be read as precluding giving Mr. Potter the increase in value his separate, nonmarital property has borne. If it must be so read, it was wrong. Our law requires that increase, during marriage, in the value of property acquired prior to marriage be excepted from marital property. Ark. Stat. Ann. § 34-1214(B)(5) (Supp. 1985).Once we give Mr.Potter the benefit of identifying his separate property acquired before marriage by saying it can be found in property acquired in exchange for it, then we have established the very tracing principle Mr. Potter asks that we apply to the increase. It makes no sense to say he can identify and be entitled to his separate part and then ignore the statutory requirement that its increase in value also be regarded as nonmarital property. The only circumstance in which we should say such a gain is marital property is when it is demonstrable that both spouses contributed to the gain. See Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985).
The remaining question then is whether the law of the case doctrine prevents us from correcting our mistake if we must read our prior opinion as does the majority. The cases cited by the majority place Arkansas among those jurisdictions which seem to be hidebound in application of law of the case even if we could correct an error without undue prejudice to any party. Yet in Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979), we allowed ourselves the luxury of correcting an arithmetical error in a former appeal in the same case. We were too bashful to do it in the text of the opinion, but we corrected our error with this footnote:
In our opinion on the first appeal, where we subtracted $80,349 from $165,000, we showed a remainder of $85,651, instead of the correct amount of $84,651. The law of the case is not so inflexible that we cannot resolve a conflict apparent on the face of the earlier opinion, by correcting an obvious arithmetical error. [266 Ark. at 566, 587 S.W.2d at 25.]
Unlike the misspelling to which the majority opinion refers, the correction of this mathematical error changed the result of the case to the extent of reducing the judgment by $ 1,000. We should likewise feel free to correct the mistake here and increase Mr. Potter’s share of the value of the property in question to reflect the increase in the value of his identifiable investment of property held by him before marriage.
In Washington v. State, 278 Ark. 5, 643 S.W.2d 255 (1982), we held that if interim decisions between the first and second appeals of a case change the law so that what we said on the first appeal is no longer the law, we are not bound in the second appeal by what we did or said in the first. Our “right or wrong” stonewall thus has another chink. In my view, application of the law of the case doctrine to preclude us from correcting a mistake makes no sense whether we have changed the law, as in Washington v. State, supra, or merely found it out as we seem to have done here.
The changes taking place in the law of the case doctrine and cases from the jurisdictions which have departed from the totally inflexible approach are outlined in Annot., 87 A.L.R. 2d 271 (1963), and its later cases supplement. While a long opinion could be written setting out the reasons given in modern cases for the exercise of some discretion in application of the law of the case doctrine, it need not be done here because the subject is treated comprehensively in A. Vestal, Law of the Case: Single Suit Preclusion, 1967 Utah L. Rev. 1. Additionally, I believe the facts of the case before us are sufficient to illustrate both sides of the issue. Potter v. Potter is a little like Jarndyce v. Jarndyce. It seems to go on forever. As the majority opinion points out, one trial judge left the case because of his frustration with it. The temptation to opt for “finality over everything” is present. However, we should not let our frustration get the better of us to the extent we refuse to recognize our mistake and correct it. If the majority wishes to say our historical embrace of the law of the case doctrine is unyielding despite Ferguson v. Green, supra, I believe we should do as the Florida court in Strazzulla v. Hendrick, 177 So. 2d 1 (Fla. 1965), and “expressly recede” from the doctrine to the extent it requires that we never correct in second appeals our errors in first appeals. See also Greene v. Rothschild, 68 Wash. 2d 5, 414 P.2d 1013 (1966), and Union Light, Heat & Power Co. v. Blackwell’s Administrator, 291 S.W.2d 539 (Ky. 1956). As Professor Vestal said in the article cited above:
An examination of the recent cases involving the effect of an earlier appellate decision upon the same question before the same court at a later time suggests that the “law of the case” doctrine has lost most of its force. Appellate courts should decide cases correctly; any other course would distort the law and treat litigants unfairly. It may be fair to say that the earlier decision is not binding, that “law of the case” does not apply, unless it is an exceptional case. Absent such exceptional circumstances, the appellate court should decide all legal questions correctly without regard to earlier decisions by the court. [1967 Utah L. Rev. at 15].
Leaving this case in its present posture presents a precedent for saying we will not allow increase in the value of property brought to a marriage by one of the parties to be regarded as nonmarital property. Again, that is a clear violation of our statute and a precedent we can ill afford. We should not perpetuate and emphasize it by an unnecessary or unnecessarily strict application of law of the case.
I respectfully dissent.
Holt, C.J. joins in this dissenting opinion.