What Issues Can Successfully Be Litigated After You Lose A Family Law Appeal in California?

In some divorce cases, the animosity level is high and the parties want to continue their battle in court to the appellate level and then back to the trial court after the initial appeal is decided.  This is usually not a good idea for most  parties because it is costly and wastes time.  The party who lost on appeal is likely to lose again when making an attempt to re-litigate issues that were already decided on appeal because the court will be bound by the law of the case, res judicata, and a doctrine called “collateral estoppel.”

Only community property which is left unadjudicated by a decree of divorce or dissolution is subject to future litigation.  (In re Marriage of Snyder (1979) 95 Cal.App.3d 636, 638.)  "According to that aspect of the doctrine of res judicata known as collateral estoppel, a party is collaterally estopped from relitigating an issue necessarily determined in a prior adjudication if (1) the issue decided in the previous litigation is identical with that presented in the action in question; (2) there was a final judgment on the merits in the first action; and (3) the party against whom the plea is asserted was a party . . . to the prior action.  The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy."  (In re Marriage of Buckley (1982) 133 Cal.App.3d 927, 935.)

In addition, pursuant to the doctrine of the law of the case, " 'the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case."  (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1518.)  "The doctrine applies only if the issue was actually presented to and determined by the appellate court.  [Citation.]"  (People v. Yokely (2010) 183 Cal.App.4th 1264, 1273 (Yokely).)  Any principle or rule of law necessary to the appellate decision becomes the law of the case and "must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal."  (Tally v. Ganahl (1907) 151 Cal. 418, 421.)  "[T]he law-of-the-case doctrine governs only the principles of law laid down by an appellate court, as applicable to a retrial of fact . . . ."  (People v. Boyer (2006) 38 Cal.4th 412, 442.)  "[S]ufficiency of the evidence is a question of law to which the doctrine of law of the case applies."  (In re Marriage of Steinberg (1977) 66 Cal.App.3d 815, 821).)

However, "during subsequent proceedings in the same case, an appellate court's binding legal determination 'controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based.  [Citations.]'  [Citation.]"  (People v. Barragan (2004) 32 Cal.4th 236, 246-247.)  "Where, on remand, 'there is a substantial difference in the evidence to which the [announced] principle of law is applied, . . . the [doctrine] may not be invoked.'  [Citation.]"  (Ibid.)  "The doctrine is one of procedure that prevents parties from seeking reconsideration of an issue already decided absent some significant change in circumstances."  (Yokely, supra, 183 Cal.App.4th at p. 1273.)

But a final judgment that was procured by fraud or perjury can be set aside in a Family Law case.  "Section 2120 et seq. authorizes a dissolution judgment to be vacated, irrespective of res judicata concerns, where the judgment was procured by fraud or perjury.  In such cases, the interest in assuring finality of judgments is outweighed by other considerations."  (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1152.)

Moreover, the doctrine of the law of the case can be disregarded to avoid an unjust decision, but for the " 'unjust decision' exception to apply, 'there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice.' "  (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309.)

Thus, before deciding resurrect issues that were already resolved by a final judgment in the trial court and again on appeal, it is important to determine whether there are sufficient facts to show that the final judgment was procured by fraud, whether the prior decision was unjust, or whether the issues are substantially different as that upon which the appellate ruling was based.  If none of these exceptions apply, you may find yourself wasting more of your time and money because the court is likely to find that  these issues were resolved on the merits in the initial trial court and the subsequent appeal.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Disclosure: If you click on the link below, you will be directed to Amazon.  We may receive a small commission but this will not increase the amount you pay. We have not received anything from the publisher or authors to recommend these items.