Aubert v. Aubert, 86-312

• Decision Date: 05 June 1987
• Docket Number: No. 86-312,86-312
• Citation: 529 A.2d 909,129 N.H. 422
• Parties: Armand AUBERT v. Jean AUBERT.
• Court: New Hampshire Supreme Court

Page 909

529 A.2d 909

129 N.H. 422

Armand AUBERT v. Jean AUBERT.

No. 86-312.

Supreme Court of New Hampshire.

June 5, 1987.

Burns, Bryant, Hinchey, Cox & Shea P.A., Dover (Paul R. Cox and Stephen E. Gaige, orally, on the brief), for plaintiff.

Fisher, Moran, Willoughby & Clancy, Dover (Karl O. Durand on the brief, and Robert E. Fisher, orally), for defendant.

JOHNSON, Justice.

The defendant appeals a jury verdict rendered on May 14, 1986, in favor of the plaintiff in the amount of $343,000. The following issues are presented for our review: (1) whether a prior action for divorce precludes a subsequent action for personal injuries in tort between the same parties, where the plaintiff in the tort action based his cross-libel for divorce upon the same act involved in the tort suit; (2) whether the Trial Court (Nadeau, J.) erred in ruling that the defendant's criminal conviction for the attempted murder of her husband collaterally estops her from litigating the issues of liability and causation in a subsequent tort suit based upon the same wrong; (3) whether the trial court erred in admitting certain medical records, the defendant's prior criminal conviction, and real evidence in the form of a gun and a sample bullet; and (4) whether the jury verdict in this case was erroneous because it was punitive rather than compensatory in nature. We affirm.

The parties were married on August 7, 1953, and resided together until December 31, 1978. On that date, in the wake of an argument with his wife, the plaintiff left home at approximately 11:00 p.m. to have a New Year's drink at his neighbor's house. Within a few minutes of his arrival there, his wife appeared, wielding the family .38 caliber revolver. The parties struggled, and the plaintiff was shot in the face. He suffered severe and permanent facial injury, as well as scarring. Despite extensive reconstructive surgery, effects of the injury are still present.

The defendant was convicted of the attempted murder of the plaintiff. That conviction was subsequently overturned by this court, in part because the trial court had not properly instructed the jury concerning the defendant's claim that the shooting was accidental. See State v. Aubert, 120 N.H. 634, 421 A.2d 124 (1980). The defendant was tried and convicted again in December, 1980.

After her first conviction, Jean Aubert brought an action for divorce based upon irreconcilable differences. Armand Aubert cross-libeled on the ground of extreme cruelty, and testified in detail about the shooting incident. In a decree dated May 1, 1980, Armand was awarded a divorce. Apparently dissatisfied with the terms of his property settlement, Armand brought an appeal to this court, which we declined to accept.

Subsequently, Armand Aubert brought this civil suit for personal injury against his former wife, asserting claims based upon negligence and intentional tortious conduct. Acting on pretrial motions, the trial court ruled that the defendant's prior criminal conviction was res judicata on the liability issue. The plaintiff requested liberal compensatory damages at the trial, which was limited to the issue of damages. The jury returned a verdict for $343,000, and this appeal followed.

We first consider whether the trial court erred in failing to dismiss Armand's suit on preclusion grounds because of the previous divorce action between the same parties. Although Jean has couched her argument in "collateral estoppel" terminology, she makes reference to claim preclusion in her brief. We therefore address the preclusion issue under both res judicata, or claim preclusion, and collateral estoppel, or issue preclusion.

It is long-settled that a prior divorce decree acts as a bar to a subsequent action for divorce, as to the same ground and every issue actually litigated. See Brown v. Brown, 37 N.H. 536 (1859) (a final decree in a libel for divorce is a bar to a subsequent libel on the same cause). However, no rule of preclusion is applicable to require that a prior divorce decree acts as a bar to a subsequent civil action in tort. Indeed, the plaintiff has conceded that, in general, such a rule would not make good law, and we decline to adopt such a rule now.

That a spouse can sue another spouse in tort cannot be questioned. See, e.g., Schneider v. Schneider, 110 N.H. 70, 260 A.2d 97, 98 (1969) (citing Morin v. Letourneau, 102 N.H. 309, 156 A.2d 131 (1959)). Nor can it be argued that a civil action in tort is the same "cause of action" for res judicata purposes. Although we have emphasized that "a change in labels is not sufficient to remove the [preclusive] effect of [a] prior adjudication," Lougee v. Beres, 113 N.H. 712, 714, 313 A.2d 422, 424 (1973) (quoting Grace v. Grace, 394 F.2d 127, 128 (2d Cir.1968)), we think it clear that a civil action in tort is fundamentally different from a divorce proceeding, and that the respective issues involved are entirely distinct.

In Eastern Marine v. First Southern Leasing Ltd., 129 N.H. 270, 525 A.2d 709 (1987), this court took a step in the direction of clarifying preclusion law in this State by adopting the Restatement (Second) of Judgments definition of cause of action for res judicata purposes. In that case we held that "cause of action" collectively "refer[s] to all theories on which relief could be claimed on the basis of the factual transaction in question." Id. at ----, 525 A.2d at 712. Thus "a subsequent suit based upon the same cause of action ... is barred 'even though the plaintiff is prepared in the second action (1) to present evidence or grounds or theories of the case not presented in the first action, or (2) to seek remedies or forms of relief not demanded in the first action.' " Id. at ----, 525 A.2d at 712.

For purposes of the present case, we must ask whether the type of relief available in a tort action is available in an action for divorce. We think the clear answer is that the same type of relief is not available in both cases, and that res judicata does not operate in this situation, notwithstanding our liberal approach to the question of what constitutes a cause of action. The purpose of a divorce action is to dissolve the marital relationship and effect the legal separation of man and wife, while a tort action is brought to recover compensation for injuries suffered as a result of a civil wrong. It is settled that damages for personal injuries cannot be requested in a divorce proceeding. Kennard v. Kennard, 87 N.H. 320, 326-27, 179 A. 414, 419 (1935). The fact that alimony is often awarded in such cases does not alter the point. As this court noted in Kennard, supra at 327, 179 A. at 419:

"[A]limony does not partake of the nature of either damages or a penalty for misconduct.... '[It] is an allowance for support and maintenance, having no other purpose and provide[s] for no other object.' ... Although it is held that the conduct of the [spouse] may be taken into account in fixing the amount of alimony ... this does not mean that damages for ill treatment are to be assessed against him...."

(Citations omitted.)

Having determined that the plaintiff's tort claim is not barred by res judicata, we now turn to the question of whether he is precluded from litigating the issue of damages under the doctrine of collateral estoppel, which precludes the relitigation in a subsequent action of issues actually litigated in a prior suit. Hopps v. Utica Mutual Ins. Co., 127 N.H. 508, 511, 506 A.2d 294, 297 (1985). We note that in New Hampshire, it is not necessary for collateral estoppel that there be mutuality of parties. Thus "[a] party who, after full litigation, has lost on an issue is ... barred from litigating the issue with new parties." Cutter v. Town of Durham, 120 N.H. 110, 111, 411 A.2d 1120, 1121 (1980). Instead, the issue turns on whether or not the party against whom preclusion is sought had a "full and fair opportunity ... to litigate the issue...." Sanderson v. Balfour, 109 N.H. 213, 216, 247 A.2d 185, 187 (1968). It is clear that Armand Aubert had no such opportunity in this case to litigate the damages question in the divorce proceeding. Although Armand testified about his injuries and his wife's conduct in shooting him at the divorce proceeding, such testimony could only have been offered in support of his libel for divorce on grounds of extreme cruelty. The issue of his right to recover damages for his injuries was not before the divorce court, and could not have been. Indeed, the divorce court would be without jurisdiction to award damages for personal injuries.

In States such as ours, where husband and wife are liable to each other for their torts, we think the correct view is that the fact of divorce does not affect such liability, and that such liability is not determined in the divorce proceeding. See 41 Am.Jur. 2d Husband and Wife § 527, at 448 (1968). We hold therefore that the divorce decree did not preclude the bringing of a subsequent action for personal injury in tort.

We next consider whether the trial court erred in its ruling that Jean Aubert's criminal conviction for the attempted murder of her husband collaterally estops her from litigating the issues of liability and causation in this case. In Hopps, supra 127 N.H. at 511, 506 A.2d at 297, this court held that a prior criminal conviction has collateral estoppel effect in a subsequent civil proceeding as to the issues actually litigated and decided in the criminal case:

"[T]here is no reason in principle why an earlier criminal judgment should not preclude a party to the criminal prosecution from relitigating an issue of fact in a later civil proceeding, if that party enjoyed a full and fair opportunity to litigate the issue in the first instance. In fact, there is a stronger rationale for applying collateral estoppel against a former criminal defendant than for applying it against a party to a prior civil case, since the criminal defendant has had the benefit of the...