John F. Daugharty and Sarah R. Daugharty - Page 23

                                                - 23 -                                                   

            supra at 27.9  Judicial estoppel is a doctrine adopted to protect                            
            the courts, and we possess discretion in invoking it.  Fazi v.                               
            Commissioner, supra at 446; see also In re Cassidy, 892 F.2d 637,                            
            642 (7th Cir. 1990).                                                                         
                  Thus, in the instant case, we must determine: (1) Whether                              
            John maintained before the Florida State courts that the                                     
            provision of the Stipulation and Final Judgment requiring him to                             
            pay $2,500 per month was a property settlement under Florida law;                            
            and, if so, (2) whether this position was accepted by the State                              
            courts in their rulings.  Unless both requirements are satisfied,                            
            Faye's argument must fail.                                                                   
                  In his motion to dismiss, filed in the Fourth Judicial                                 
            Circuit on or about January 12, 1982, John stated that "the Wife                             
            is attempting to modify a property settlement agreement, which is                            
            a non-modifiable document under the laws of the State of                                     




                  9In Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th                             
            Cir. 1982), the Court of Appeals for the Sixth Circuit stated:                               
                  Absent judicial acceptance of the inconsistent                                         
                  position, application of the rule is unwarranted                                       
                  because no risk of inconsistent results exists.  Thus,                                 
                  the integrity of the judicial process is unaffected;                                   
                  the perception that either the first or the second                                     
                  court was misled is not present.  [Citations omitted.]                                 

            See also Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th                             
            Cir. 1990).                                                                                  




Page:  Previous  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  Next

Last modified: May 25, 2011