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A Virginia court of appeals recently determined that because a wife chose not to appeal the grounds for her divorce in a prior appeal, the law of the case doctrine prevented her from relitigating the issue during a subsequent appeal. Specifically, the trial court originally determined that the wife had constructively deserted the husband when she shot him during an argument. The shooting left the husband in a coma for several days, and he remained hospitalized for over 20 days. The trial court awarded the husband 62 percent of the marital property based upon the constructive desertion.
The trial court issued the divorce decree in 2006, and an appeal ensued. The only issue addressed by the court of appeals was whether the "trial court erred when it prevented [the husband] from cross-examining the wife's expert witness and a factual witness." The appeals court determined that the trial court had abused its discretion by preventing the husband from cross-examining the wife's witnesses. The remaining assignments of error were not addressed. The appeals court reversed and annulled the 2006 divorce decree, remanding the case to the trial court "for further proceedings in accordance with the views expressed" in the opinion.
On remand and after an evidentiary hearing, the trial court affirmed the 2006 decree's finding that the wife constructively deserted the husband when she shot him. The trial court held that because the wife did not challenge the 2006 divorce decree on the basis of the grounds for divorce, the law of the case doctrine barred her from relitigating the grounds for divorce.
The wife contended that because the first appeal "reversed and annulled" the 2006 decree, she was free to re-litigate all disputed issues. Further, the wife claimed that the law of the case doctrine was inapplicable because the facts underlying the grounds for divorce were materially different from the facts in a later proceeding. Specifically, in the later trial proceeding, the wife claimed that her son shot her husband.
Pursuant to the law of the case doctrine, "when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived her right to challenge that decision during later stages of the 'same litigation.'" In the first appeal, the wife challenged the spousal support and inheritance provisions of the marital agreement; the wife did not appeal the grounds for divorce. Therefore, the appeals court determined that the law of the case doctrine precluded her from re-litigating that issue on appeal. In addition, the appeals court rejected the wife's claim that the language contained within the mandate accompanying the first appeal rendered the 2006 decree "totally inoperative and of no further effect." The appeals court held that the mandate was controlling only as to "matters within its compass."
Finally, the appeals court rejected the wife's claim that she circumvented the law of the case doctrine by recanting her "prior admission" that she shot her husband. Specifically, the appeals court held that because she had created the evidence conflict herself the wife could not rely on the material change in facts exception to the law of the case doctrine.
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