# Henriksen v. Cameron

> Supreme Judicial Court of Maine · March 24, 1993 · 622 A.2d 1135

URL: https://www.frixlaw.com/law-library/cases/9516503

## Case

- **Full name:** Marie B. HENRIKSEN v. John Malcolm CAMERON
- **Court:** Supreme Judicial Court of Maine
- **Decided:** March 24, 1993
- **Citations:** 622 A.2d 1135; 1993 Me. LEXIS 44
- **Precedential status:** Published
- **Opinion:** Dissent by Glassman
- **Judges:** Wathen, Roberts, Glassman, Clifford, Collins, Rudman
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9516503

## How later opinions describe it (automated extraction)

- affirming judgment when “the exclusion of the inadmissible hearsay could not have rationally brought about a verdict of not guilty, and the error was harmless”
- recognizing the common-law tort of intentional infliction of emotional distress in the marriage context skews “a carefully constructed scheme of legislation governing the marriage relationship”
- affirming jury verdict for plaintiff in action for IIED against her former husband where the evidence showed that he had physically and emotionally abused her, including by raping and assaulting her
- holding psychiatrist could testify about reliance on another psychiatrist’s report to establish the factual foundation necessary for the admission of his opinion
- holding that trial court’s admission of hearsay document was harmless error because it was cumulative

## Opinion text

*1145 GLASSMAN, Justice,
with whom RUDMAN, J., joins, dissenting.
I must respectfully disagree with the Court’s decision that the doctrine of res judicata does not bar the present action. In the instant case, the matter presented for decision could have been litigated in the prior action for divorce. Contrary to Hen-riksen’s contention, the application of the doctrine of res judicata would not unfairly deprive her of a remedy in contravention of Art. I, § 19 of the Maine Constitution, which states: “Every person, for an injury inflicted on the person ... shall have remedy by due course of law....”
The Court today under the guise of the common law of torts intrudes into an area that since the adoption of Maine’s Constitution in 1820 has been exclusively within the province of the Legislature. It is from a composite of legislation that the present statutes governing all facets of domestic relations have evolved. See 19 M.R.S.A. § 1-1005 (1981 & Supp.1992). A review of that legislation clearly demonstrates that, unlike any other relationship between two adults, the marriage relationship in its creation, in its dissolution, in the determination of the responsibilities imposed, and the rights and the remedies afforded by reason of the existence of the relationship, has been governed by statute throughout the period of Maine’s statehood.
The legislation governing the formation of a marriage relationship from 1639 through 1820 is set forth in Commonwealth v. Munson, 127 Mass. 459, 460-66 (1879), in which that court expressly repudiated the validity of common law marriages. When the question, “Is a common law marriage valid under the laws of the State of Maine?”, was for the first time presented to this Court on certification from the United States District Court, we responded in the negative. Pierce v. Secretary of the U.S. Dep’t of Health, Education and Welfare, 254 A.2d 46, 48 (Me.1969). We specifically noted:
The Massachusetts Court was also of the view that if the law were to be changed to permit a valid marriage to be effectuated “by the mere private contract of the parties, without going before any one as a magistrate or minister,” that should properly be “a matter for legislative, and not for judicial consideration.” We are of the same view.
Id. (quoting Munson, 127 Mass. at 470 ). See also State v. Hodgskins, 19 Me. 155, 159-60 (1841) (proof of adultery dependent on proof that statutory requirements for valid marriage are met); Ligonia v. Buxton, 2 Me. 102, 108-09 (1822) (The Resolve of 1821 did not render valid purported marriage solemnized in 1814 by church elder who was not a stated and ordained minister of the gospel within meaning of Me.Stat., ch. 3 (1786). In addition, the court gave no consideration to the possible existence of a common law marriage despite the fact that the parties had cohabited as man and wife for six years.).
Through 1820, the dissolution of the marriage relationship was governed by the March 16, 1786 act of the General Court of Massachusetts, as amended in 1810. See Maine Const. Art. X, § 3 (“All laws now in force in this State, and not repugnant to this Constitution, shall remain, and be in force, until altered or repealed by the Legislature, or shall expire by their own limitation.”). In February 1821, the Maine Legislature enacted “An Act for regulating Marriage, and for the orderly solemnization thereof’ and “An Act regulating Divorces.” See Smith, Laws of the State of Maine, Vol. I, ch. 70, 71, pp. 419-30 (1834). See also Holyoke v. Holyoke, 78 Me. 404, 409-10 , 6 A. 827, 827-28 (1886) (tracing legislation governing the dissolution of the marriage relationship from 1786 to 1886).
Until 1883, the statute distinguished between those grounds for which the court was authorized to grant a divorce from the bed and board of the other spouse and those for which a complete dissolution of the marriage contract would be effected. In March 1883, the Legislature repealed the former legislation and replaced it with seven of the nine presently existing grounds for divorce and provided that all divorces would effect a complete dissolution of the marriage contract. See 19 M.R.S.A. § 691 (grounds and procedure for *1146 divorce). 1 Since 1820, the statutes governing divorce have enabled the court to provide for the support of the divorced wife by authorizing the restoration of certain properties to her, the payment to her of reasonable alimony out of her husband’s estate, or the assignment to her of all or a part of the husband’s real property or the rents and profits therefrom. Further, the court has been authorized on application of either party to make such adjustments to previously awarded alimony as it deemed necessary. See 19 M.R.S.A. §§ 721 to 722-A (governing alimony and disposition of property).
Coextensive with legislation governing the formation and dissolution of the marriage relationship, legislation was enacted governing the legal rights of married women external to the relationship itself. An exhaustive discussion of the progress of that legislation from 1821 to 1898 may be found in Haggett v. Hurley, 91 Me. 542, 551-553 , 40 A. 561, 564-65 (1898). The retention of much of that legislation together with interim legislation specifically addresses the present rights of married persons. See 19 M.R.S.A. §§ 161 to 167-A. 2 It is against this background of almost two centuries of extensive and comprehensive legislation and our application of that legislation that the issues presented by the record in the present case must be determined.
The record here reflects the following pertinent facts: On April 26, 1989, Henrik-sen filed the present complaint against Cameron seeking damages from him for injuries sustained by Henriksen for Cameron’s alleged intentional infliction on her of emotional distress from approximately 1974 to 1989. In his answer, Cameron pleaded as an affirmative defense that the doctrine of res judicata barred Henriksen’s claim. On September 4, 1990, Cameron filed a motion for a summary judgment. At the hearing on that motion, the court had before it the depositions of the parties establishing that the alleged conduct giving rise to the complaint had occurred in the period from the date of their marriage in 1974 to their separation in September 1986. In October 1986, Henriksen had filed an action against Cameron seeking a divorce from Cameron on the ground of cruel and abusive treatment, an award of alimony and his payment of her attorney fees and costs.
The divorce action was set for trial for April 20,1988. On that date, the court was advised that the parties had reached a property settlement agreement contingent on Henriksen’s receipt of a loan commitment within 30 days. Henriksen sought leave to amend her complaint to include the ground of irreconcilable differences and to proceed on that ground, stating, “[b]ut I don’t want to dismiss the ground of cruel and abusive treatment and if the agreement as outlined does, in fact, break down, I want those grounds of divorce to be alive....” 3 After securing the consent of *1147 Cameron to this condition, the court granted the amendment and heard Henriksen’s testimony which included the terms of the property settlement between the parties. Both parties advised the court of their agreement with the terms and accuracy of the property settlement as set forth in her testimony. Cameron offered no other evidence on his behalf. The court then stated that the matter had been heard de bene esse. 4
On June 26, 1988, the court issued its judgment of divorce on the ground of irreconcilable differences. Pursuant to the terms previously presented to the court, the judgment provided for the distribution of the marital personality; that Cameron would by deed release to Henriksen all his interest in the marital real property of the parties; that Henriksen would hold Cameron harmless for any obligations on said property and pay to him the sum of $389,-000, with $30,000 to be paid on or before August 25, 1988, and the remainder by annual payments of $10,000 together with interest. Although the April 20 hearing did not address these issues, the judgment further provided that neither party pay alimony, separate support or maintenance to the other and that each party would be responsible for that party’s attorney fees and costs incurred in the proceeding. Neither party appealed from this judgment.
Although the trial court in the present proceeding recognized that the issue presented had not yet been addressed by this Court, it rejected Cameron’s contention that because Henriksen’s claim against him could have been litigated in the earlier divorce action, it was barred by the doctrine of res judicata. The court, inter alia, stated:
[T]he court recognizes the well settled view in Maine that marital fault is an inappropriate consideration in the distribution of marital property, [citation] The issue of defendant’s alleged tortious conduct, therefore, was never properly before the court in the divorce hearing, nor should it have been. Thus, the tort claims are not barred by the doctrine of res judicata.
I agree with the trial court that “marital misconduct” is an inappropriate consideration in the distribution of marital property pursuant to 19 M.R.S.A. § 722-A. See Boyd v. Boyd, 421 A.2d 1356, 1357-58 (Me.1980). 5 I disagree, however, with the trial court and with this Court that Henriksen’s claim of the willful infliction of emotional distress could not have been presented to the trial court in the context of the divorce proceedings and, therefore, is not barred by the doctrine of res judicata. The law is well established that Henriksen’s present claim could have been presented had she not chosen to abandon her claim of cruel and abusive treatment as the ground for the divorce she sought. 6
In Holyoke, 78 Me. at 404 , 6 A. at 827 , three years after the 1883 legislation specifying particular grounds for the dissolution of the marriage relationship, we were called on to determine for the first time what conduct constitutes cruel and abusive treatment within the statute. The husband in that divorce action had based his claim of cruel and abusive treatment on the conduct of his wife throughout their marriage relationship that included repeatedly charging him with incidents of infidelity in the *1148 presence of their two minor children and their servant and circulating those charges to friends and acquaintances; frequently calling him a liar and a whoremaster and words of similar import in front of their children and their servant; otherwise avoiding him and refusing to speak to him; occupying a bed by herself and refusing to cohabit with him; and demonstrating a complete lack of concern for his happiness or welfare. All of which, he claimed, so affected his peace of mind and feelings as to affect his health and endanger his health in the future. We determined that cruel and abusive treatment are words of comprehensive meaning not necessarily implying physical violence though it may include it. “Temperament and character so widely differ, that conduct cruel to one, might scarcely annoy a more callous nature.... each particular case must be judged of by its own particular facts and circumstances. ” Id. at 410 , 6 A. at 828 (emphasis added).
Accordingly, whatever treatment is proved in each particular Case to seriously impair, or to seriously threaten to impair, either body or mind is cruel and abusive treatment within the meaning of that statutory ground for divorce. This definition has persisted to the present. See, e.g., Leach v. Leach, 8 A. 349 , 350 (Me.1887) (fact that husband had loathsome disease before marriage and intentionally withheld fact from wife and knowledge of fact when brought home to her was calculated to make her miserable, cause her mental pain, anguish and suffering to such degree as to endanger her life or health or cause reasonable apprehension thereof, constitutes cruel and abusive treatment within meaning of statute); Michels v. Michels, 120 Me. 395, 397 , 115 A. 161, 161 (1921) (husband’s willful and unjustified attempt to commit wife to mental institution thereby seriously affecting her health is cruel and abusive treatment within meaning of statute); Bond v. Bond, 127 Me. 117, 131-32 , 141 A. 833, 839 (1928) (husband’s motive or intent to cause wife mental pain presumed if husband knows or should have known effect of his treatment of her); Gruber v. Gruber, 161 Me. 289, 292 , 211 A.2d 583, 585 (1965) (“It must be affirmatively shown by the plaintiff in a divorce action [on ground of cruel and abusive treatment] that the acts complained of caused a consequential effect of an impairment of physical or mental health or an apprehension of danger to life.”); Cellucci v. Cellucci, 522 A.2d 1318, 1319 (Me.1987) (“[Ejvidence [of incompatibility] in this record is clearly inadequate to establish cruel and abusive treatment by the wife under the standard set forth in Gruber.”).
Nor can I agree with this Court’s statement that in the context of a divorce proceeding, no compensatory relief could be provided Henriksen for her claimed injury. At the time the divorce proceeding between Henriksen and Cameron was pending before the trial court, the statute governing the authority of the court to provide for alimony stated in pertinent part:
The court may decree to either spouse reasonable alimony out of the estate of the other spouse, having regard to that spouse’s ability to pay and may order that spouse to pay sufficient money for the defense or prosecution of hearings regarding alimony. To effect the purposes of this section, the court may order so much of one spouse’s real estate, or the rents or profits thereof, as is necessary to be assigned or set out [to] the other spouse for life. The court may order instead of alimony, a specific sum to be paid or to be payable in such manner and at such times as the court may direct. The court may at any time alter, amend or suspend a decree for alimony or specific sum when it appears that justice requires it....
19 M.R.S.A. § 721 (1981). 7 It is a well-established principle that this section vests *1149 the trial court with broad powers to order one spouse to pay alimony to the other and to determine the amount of that alimony, its source, duration and the method of payment. Torrey v. Torrey, 415 A.2d 1092, 1094 (Me.1980). 8 Moreover, section 722-A governing the division of property was not intended to abrogate or limit the discretion of the trial court to determine the amount of alimony as justice may require. See Smith v. Smith, 419 A.2d 1085 , 1039 (Me.1980) (“The fact that in the same measure that enacted section 722-A the legislature amended section 721 without any provision limiting the source of funds from which alimony may be derived, is strong evidence [that the legislature intended to leave the determination of alimony solely within the discretion of the court].”).
In determining alimony, the trial court must consider a multitude of factors, including each party’s age and health. See Cole v. Cole, 561 A.2d 1018, 1021 (Me.1989). See also 19 M.R.S.A. § 721(1)(I) (Supp.1992) (court shall consider health and disabilities of each party when determining alimony). The fact that a spouse may be able to be self supporting does not foreclose an award of alimony when evidence discloses a serious medical condition. See Dunning v. Dunning, 495 A.2d 821, 823 (Me.1985). See also Pongonis v. Pongonis, 606 A.2d 1055, 1059 (Me.1992) (alimony may be appropriate in consideration of wife’s serious medical condition notwithstanding her past uninterrupted flow of income sufficient to support herself). Thus, a review of the legislative history of section 721 and our application of that section casts considerable doubt on the accuracy of the Court’s statement in the present case that “[w]e have also held that fault could not be considered in alimony determinations.” 9
*1150 In the instant ease, the record discloses that Henriksen first experienced the symptoms from which she presently suffers sometime after Labor Day in 1986 and pri- or to filing the action for divorce. She consulted her psychiatrist, Dr. Collins. 10 As of November 5, 1986, approximately 17 months prior to a hearing on Henriksen’s action for divorce, Dr. Collins diagnosed her condition as a post traumatic stress disorder that in his opinion was causally connected with Cameron’s treatment of her in the course of the marriage relationship. 11 Henriksen has continued with the services of Dr. Collins with a varying degree of regularity. The nature of the disorder and its effect on Henriksen was fully described by both Henriksen and Dr. Collins. Dr. Collins testified as to the medication he had prescribed for Henriksen and the necessity for her continuing with that medication for an indefinite period of time in the future. He also testified as to the necessity of Henriksen continuing with psychiatric treatment for an indefinite period in the future, with the frequency of such treatment to be largely governed by “occurrences of crises or changes of events that may incite symptoms because of their symbolic connections with past events” that had occurred in the marriage relationship with Cameron. The past and future cost of psychiatric care was demonstrated by Dr. Collins’s billing to Henriksen. Henriksen’s age and life expectancy was established. There were also other witnesses who testified to Cameron’s treatment of Henriksen during the course of their marriage and the effect of such treatment on Henriksen.
Thus, the operative facts forming the basis of the present action are the same as those that Henriksen had an opportunity to litigate had she pursued her action for divorce on the ground of cruel and abusive treatment. The argument that she should not be barred from bringing this present action because the remedy she now seeks— damages — is different from the remedy that could have been afforded her — alimony or a “specific sum to be paid or payable in such manner and at such time as the court may direct” — is without merit. We have accepted the modern principles of res judicata that a party’s claim cannot be split by first seeking one type of remedy in one action and later asking for another type of relief in a second action. 12 See *1151 Kradoska v. Kipp, 397 A.2d 562, 567 (Me.1979). See also Roy v. City of Augusta, Maine, 712 F.2d 1517, 1521 (1st Cir.1983); Restatement (Second) of Judgments, §§ 24 & 25 (1982).
It is an accepted principle that the involvement of public policy is present in the unique relationship of marriage to a degree not known in any other form of relationship between two adults. This is evidenced by the careful and specific legislation that has governed the marriage relationship for almost two centuries. The authority of the courts to deal with the intentional treatment of one person directed to the other in the course of marriage and the responsibilities, rights and remedies that may flow from that treatment, has always been confined within the parameters of that schematic legislation.
By its decision today, the Court has dramatically injected a cause of action for the common law tort of the intentional infliction of emotional distress into a carefully constructed scheme of legislation governing the marriage relationship. 13 Such a sweeping embellishment of the existing law governing the marriage relationship should be left to the Legislature. Inherent in the Court’s opinion are a number of policy decisions that can be soundly made only after an opportunity for public debate. That debate should be conducted free of the court’s view as to the better policy. The Legislature, unlike the courts, is institutionally equipped for such a forum. It has the ability for exhaustive gathering of so-cio-economic facts implicit in the making of what is essentially a political judgment; whether Maine should have a cause of action not vulnerable to the application of the doctrine of res judicata, for the intentional infliction of emotional distress based on one person’s treatment directed to the other in the course of their marriage. I believe “the elected legislature, directly accountable to the citizens of Maine, is far better situated to make [that judgment] than is the unelected judiciary.” Durepo v. Fishman, 533 A.2d 264, 265 (Me.1987).
I would vacate the judgment in the instant case and remand the matter to the Superior Court with instructions to grant a summary judgment to Cameron on the ground that the doctrine of res judicata bars the present action.
. By P.L.1973, ch. 532, the Legislature amended 19 M.R.S.A. § 691 to provide irreconcilable marital differences as an additional ground for divorce. By P.L.1977, ch. 465, the Legislature further amended section 691 to provide mental illness requiring confinement in a mental institution for at least 7 consecutive years prior to the commencement of the action as the ninth ground for divorce.
. See also 14 M.R.S.A. § 6051(9) (1980) (The Superior Court shall have equity jurisdiction “[t]o hear and determine property matters between wife and husband or husband and wife as provided in Title 19, section 166-").
. As noted previously in this opinion, the Legislature amended 19 M.R.S.A. § 691 to provide as an additional ground for divorce the so-called "no fault” ground, when "marital differences are irreconcilable and the marriage has broken down.” P.L.1973, ch. 532 (effective Oct. 3, 1973). We were first called on to apply this legislation in Mattson v. Mattson, 376 A.2d 473 (Me.1977), in which the finding of the trial court as to the ground for divorce was challenged. In distinguishing the ground of irreconcilable differences from other enumerated grounds for divorce, we stated:
The necessity of a breakdown in the marriage is a legislative substitute for a required finding of fault in one of the parties in a divorce action.... Just as the fault of one partner must exist whenever a divorce is granted on any other grounds, a breakdown in the marriage must necessarily exist if the court finds the required degree of irreconcilable difference on which to premise granting a divorce.
Id. at 476 [citations omitted].
. Black's Law Dictionary, 5th ed. 1979, defines de bene esse as "proceedings which are taken provisionally and are allowed to stand ... for the present, but which may be subject to future exception or challenge, and must then stand or fall according to their intrinsic merit and regularity."
. It should be noted that in Boyd we distinguished between "marital misconduct” and "financial misconduct" occurring in the course of the marriage and did not foreclose consideration of the latter in dividing marital property. 421 A.2d at 1358 . The effect of "financial misconduct," if any, on the division of marital property has yet to be determined by this court. Cf. 19 M.R.S.A. § 721(M) (Supp.1992) (Court shall consider "[ejconomic misconduct by either party resulting in the diminution of marital property or income" when determining award of alimony (emphasis added)).
.The entire thrust of Henriksen’s claim in the present action is based on the impairment of her mental health by reason of Cameron’s treatment of her during the course of their marriage. The conduct on which she relies is specified in footnote 1 and part IV of the court’s opinion.
. As originally appearing in the 1964 revision, this section read:
When a divorce is decreed for impotence, the wife’s real estate shall be restored to her, and the court may enter judgment for her against her husband for so much of her personal property as came to him by the marriage, or its value in money, as it thinks reasonable; and may compel him to disclose, on oath, what personal estate he so received, how *1149 it has been disposed of and what then remains. When a divorce is decreed to the wife for the fault of the husband for any other cause, she shall be entitled to 'A in common and undivided of all his real estate, except wild lands, which shall descend to her as if he were dead; and the same right to a restoration of her real and personal estate, as in case of divorce for impotence.
The court may decree to her reasonable alimony out of his estate, having regard to his ability, and sufficient money for her defense or prosecution of hearings affecting alimony; and to effect the purposes aforesaid, may order so much of his real estate or the rents and profits thereof, as is necessary, to be assigned and set out to her for life; or, instead of alimony, may decree a specific sum to be paid by him to her or payable in such manner and at such times as the court may direct; and the court may at any time alter, amend or suspend a decree for alimony or specific sum when it appears that justice requires; and use all necessary legal processes to carry its decrees into effect.
19 M.R.S.A. § 721 (1964), repealed in part by, P.L.1971, ch. 399, § 1, repealed and replaced by, P.L.1977, ch. 564, § 86.
In 1971, the Legislature repealed the first paragraph of the 1964 version and simultaneously added to Title 19 a new section 722-A governing the disposition between the parties of their separate and marital property. P.L.1971, ch. 399, § 2. Then, in Beal v. Beal, 388 A.2d 72, 75 (Me.1978), we held that because section 721 subjected men and not .women to alimony claims, it unconstitutionally denied males the equal protection of the law. By the time that case was decided, however, the Legislature had replaced section 721, making either spouse eligible for alimony. P.L.1977, ch. 564, § 86. Section 721 was further amended in 1979 to clarify the court’s authority to award and alter alimony. P.L.1979, ch. 424, §§ 1 & 2.
Again, in 1989, the Legislature repealed and replaced section 721. P.L.1989, ch. 250, § 1 (effective January 1, 1990). The statement of facts attached to Committee Amendment "A” of L.D. 656 (the version enacted) states: ”Th[is] bill and amendment do not remove the discretion of the court when determining alimony; the factors serve as guidelines to the parties, the court, and any reviewing court, should a decree be appealed.”
. We will find an abuse of the trial court's broad discretion in determining the amount of alimony only if there exists a plain and unmistakable injustice so apparent as to be instantly visible without argument. Sweeney v. Sweeney, 556 A.2d 660, 661 (Me.1989). See also Prue v. Prue, 420 A.2d 257, 259 (Me.1980) (same standard of review for an award "in lieu of alimony”).
. In Skelton v. Skelton, 490 A.2d 1204 (Me.1985), on which the court relies, we vacated an award of alimony to the wife and remanded the case for redetermination of the alimony award. In the judgment granting a divorce to the parties on the ground of irreconcilable differences, the trial court awarded alimony to the wife on the stated ground that it "will compensate [wife] in the only practical way, under the circumstances, for her long service as spouse and homemaker.” We held that "the extent of the wife’s contribution to the marriage is relevant *1150 not to an award of alimony under 19 M.R.S.A. § 721 (1981), but to a disposition of property under 19 M.R.S.A. § 722-A (1981)." Id. at 1208 (quoting Baker v. Baker, 444 A.2d 982, 984 (Me.1982)). We carefully noted, however, that our holding did not mean that the effect of the wife’s fifteen years of service was irrelevant to the assessment of the need for alimony. We reaffirmed that this "assessment is an individual one in every case, ‘giving regard to the situation both at present and for the foreseeable future, of both spouses.’" Id. (quoting Bryant v. Bryant, 411 A.2d 391, 395 (Me.1980)). We further stated that ”[i]t is in the discretion of the trial court to determine whether the situation of one spouse requires an award of alimony from the other.” Id.
. Henriksen had previously consulted Dr. Collins once in 1980 and once in 1982.
. It should be noted that in the course of the trial of the present case, on the ground of the statute of limitations, Henriksen was prevented from offering evidence as to certain incidents occurring during the marriage relationship of Cameron’s cruel and abusive treatment of her that both she and her treating physician opined has a causative connection with or had exacerbated the medical condition of which she complained. A review of the cases makes clear that in the context of a divorce proceeding on the ground of cruel and abusive treatment such evidence would not have been foreclosed on that ground. See Holyoke, 78 Me. at 411-12 , 6 A. at 829 . See also P.L.1971, ch. 194 (codified in 19 M.R.S.A. § 691 (1981)) ("[CJondonation of the parties shall not be an absolute defense to any action for divorce but shall be discretionary with the court”) and P.L.1971, ch. 195, § 2 (codified in 19 M.R.S.A. § 691 (1981)) (“[rjecrim-ination shall be a comparative rather than an absolute defense in any divorce action.”).
.The Court in its reliance on Caron v. Caron, 577 A.2d 1178 (Me.1990), fails to fully disclose the posture of that case and the issues as presented to us. The most decisive and differentiating factor between Caron and the present case is that in Caron the defendant did not affirmatively plead the bar of res judicata, as required by M.R.Civ.P. 8(c), to the relitigation of all or any part of the plaintiff’s claim that was based on his treatment of her in the course of their marriage. In addition, in Caron the plaintiff’s action for assault, battery and the intentional infliction of emotional distress in connection with the defendant’s abusive treatment of her focused on an incident of the defendant's violent physical conduct toward her that occurred two years after the parties' divorce. As a result *1151 of that conduct, the plaintiff had suffered a permanent, disabling knee injury and had also developed post-traumatic stress syndrome. During the trial she also adduced evidence of certain incidents occurring in the course of the parties’ marriage. By his appeal to this Court, however, the defendant, as he had before the trial court, confined his challenge to two issues: (1) the court's admission of certain evidence over his objection that the evidence concerned acts beyond the scope of the statute of limitations and (2) the sufficiency of the evidence to support an award to plaintiff of punitive damages. Clearly, on the record and issues presented to us, we had no obligation to '‘question" unchallenged evidence, nor could our decision have rested on defenses not raised by the defendant.
. MacDonald v. MacDonald, 412 A.2d 71 (Me.1980), cited as support for Henriksen’s claim in the present action, did not involve conduct integrally a part of the marital relationship. Rather, in MacDonald , which was a consolidated appeal, the actions sought damages resulting from the negligent operation of a motor vehicle by one spouse — conduct wholly independent of and not directed toward one spouse’s treatment of the other in the course of their marital relationship.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516503. Public record. Not legal advice.