Dolan v. Dolan

• Decision Date: 25 November 1969
• Citation: 259 A.2d 32,52 A.L.R.3d 577
• Parties: Ronald E. DOLAN v. Lucille E. DOLAN.
• Court: Maine Supreme Court

Page 32

259 A.2d 32

52 A.L.R.3d 577

Ronald E. DOLAN v. Lucille E. DOLAN.

Supreme Judicial Court of Maine.

Nov. 25, 1969.

Laurier T. Raymond, Jr., Lewiston, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

This is an appeal by the plaintiff-husband from a judgment of the Superior Court denying an annulment of marriage upon his complaint as for divorce under 19 M.R.S.A. § 632 and from the court's order on the wife's separate motions allowing her the sum of $300 as counsel fee for the defense of the annulment proceeding and $200 to cover attorney's fee and other necessary expense in the defense of the instant appeal.

The statute, 19 M.R.S.A. § 632, provides as follows:

'When the validity of a marriage is doubted, either party may file a complaint as for divorce, and the court shall order it annulled or affirmed according to the proof; but no such order affects the rights of the defendant unless he was actually notified of the action or answered to the complaint.'

Pursuant to statutory directive, the original complaint based plaintiff's challenger respecting the validity of the marriage upon defendant's fraud allegedly perpetrated upon him at the time of marriage by reason of defendant's pre-marital fraudulent representations that she intended to consummate the marriage by normal marital sexual relations while in truth and in fact she had no such intentions. The plaintiff later moved to amend the complaint by adding the following paragraph:

'That the Defendant at the time of the marriage ceremony was psychologically or physically impotent under the purview of the laws of marriage; that she did not then, nor did she have during the period of living with the Plaintiff, the capacity to consummate her said marriage by normal sexual relations with the Plaintiff, which is the implied term and goes to the essence of a marriage contract.'

The motion to amend was allowed by the court without objection. We note that no amended complaint nor any amendment as such was filed thereafter, nor was any answer made to the allegations of the prospective amendment, the parties apparently believing that the granting of a motion to amend is tantamount to the allowance of the amendment itself. We refer to Tibbetts v. Dr. D. P. Ordway Plaster Company, 1918, 117 Me. 423, 425, 104 A. 809, and Picard v. Libby, 1956, 152 Me. 257, 127 A.2d 490, as authorities to pinpoint the difference between 'motion to amend allowed' and 'amendment allowed'. The presiding justice as it appears from his decision, however, rendered his decree on the basis that the amendment had been fully allowed, and in the light of the uncontested posture of the case thereon we review accordingly.

The presiding justice found as a fact that the defendant was not guilty of the deceit, misrepresentation or fraud, alleged against her in the original complaint. He found that defendant's resistance to sexual intercourse during the 4 1/2 months of cohabitation by the parties prior to plaintiff's separation from the home was accompanied by outbursts of uncontrollable emotional behavior, and that, whatever may have been the cause, it was 'real to her, not simulated and not a practiced deception.' He further found that such emotional disposition had not demonstrated itself before marriage and that the defendant was not then aware of such latent propensity. He concluded that the plaintiff had failed to prove his original complaint and was not entitled to an annulment of his marriage on the ground of fraud. A review of the record convinces us that this particular finding of fact by the presiding justice sitting without a jury must stand as it was not clearly erroneous. M.R.C.P., Rule 52(a); Dresser v. Dresser, 1967, Me., 225 A.2d 395; Gruber v. Gruber, 1965, 161 Me. 289, 211 A.2d 583.

The plaintiff further claims that the court below erred as a matter of law in refusing to make a finding that the defendant at the time of the marriage was psychologically and physically impotent within the meaning of the divorce and annulment statute and that said refusal to annual the marriage was clear error.

The presiding justice ruled that '(t)he plaintiff having failed to prove, by a fair preponderance of the evidence, those allegations in his complaint and amendment thereto that allege grounds for annulment, the annulment is denied and the validity of the marriage is affirmed.' This judgment must necessarily be predicated upon an implied subsidiary judicial opinion that the court had the power to annul the marriage under the plaintiff's amendment upon proof of impotency, notwithstanding the absence of fraud. The defendant raises a threshold jurisdictional objection respecting that phase of the presiding justice's decree. The wife suggests the impotency is expressly listed as a cause for divorce while the Legislature has never deemed it necessary to rest jurisdiction in annulment proceedings upon any specific grounds. She claims that the doctrine of 'expressio unius est exclusio alterius' impels the conclusion that divorce is the exclusive remedy for the dissolution of the marriage bond on the basis of impotency. This contention is without merit.

While proceedings in divorce are civil in their nature as distinguished from criminal, yet they are ecclesiastical in their origin, are regulated entirely by statute and the power of the court to deal with them is wholly derived from legislative grant. Preston v. Reed, 1945, 141 Me. 386, 392, 44 A.2d 685; Simpson v. Simpson, 1920, 119 Me. 14, 15, 109 A. 254; Belanger v. Belanger, 1968, Me., 240 A.2d 743. This Court voiced identical views concerning the action for annulment of marriage, pointing out its sui generis characteristic. See, Mitchell v. Mitchell, 1940, 136 Me. 406, at 423, 11 A.2d 898. In that case, our Court stated that under some statutes such a proceeding has been held to be a divorce suit, but surely was not a proceeding in equity.

Historically, so far as the nullification of the marital status was concerned, our Legislature equated divorce from the bonds of matrimony with the dissolution of the marriage. Originally there existed but one action, divorce, which could be decreed for causes of prohibited affinity or consanguinity, for non-eligibility to marry by reason of a former husband or wife alive at the time of the second marriage, and impotency, all causes which when proven might be thought as invalidating the marriage from the beginning. The only other cause for divorce was adultery 'in either of the parties.' R.S.1821, c. LXXI, § 3. The statute then did not provide for a specific action of annulment as distinguished from the suit for divorce. During the period between revisions, the Legislature continued this general indistinctive aspect of our divorce law. It added as causes more commonly associated with divorce proper, desertion, habitual drunkenness and sentencing to state prison. At the same time our lawmakers empowered the courts to grant divorces in cases more commonly identified with annulments, such as the granting of a like divorce to the other party to a previous divorce and decreeing the same where marital consent was obtained by gross and deliberate fraud or false pretences. See, P.L. 1834, c. 116, § 2; P.L. 1835, c. 177, § 1. In the 1840 revision of statutes, our Legislators enacted the original annulment section which read as follows: (Chapter 89, Section 21)

'Whenever the validity of a marriage is denied or doubted, either party may file a libel for annulling the same, in like manner, as a libel for a divorce; and, upon due proof of the nullity of the marriage, it shall be declared void by sentence of said court; and, upon due proof of its validity, the court, by their decree, shall affirm the marriage.'

Side by side with this express annulment proceeding, the Legislature re-enacted, as part of its comprehensive legislation regulating divorce, that a divorce could be decreed for reasons of impotency in either of the parties, existing at the time of the marriage, c. 89, § 2 (second), in cases of marital consent obtained under fraud or false pretences, c. 89, § 2 (sixth), and in situations where a like divorce was permissible to the other party to a previous divorce, c. 89, § 2 (seventh). It is obvious from the breadth of the legislative language that our legislators initially never intended any narrow and restricted limitation of the annulment provisions of our divorce laws. By the enactment of the public laws of 1850, c. 171, § 4, the Legislature repealed that part of the divorce act which enumerated the several specific causes for divorce and empowered the justices of the supreme judicial court to decree divorces

'when such justice(s) in the exercise of a sound discretion, may deem the same reasonable and proper, conducive to domestic harmony and consistent with the peace and morality of society.'

The statutory clause empowering either party to seek annulment of the marriage when its validity was denied or in doubt by filing a libel as for divorce was never modified in any material aspect and has remained the same throughout the history of our divorce law. When the Legislature removed the specific statutory causes for divorce without repealing the annulment provision, it case in manifest relief the independent posture of the annulment remedy. That the lawmakers through the public laws of 1883, c. 212, reestablished our divorce laws on the basis of specific causes for divorce in no way altered the construction to be given to the annulment section. In grounding the right to seek annulment 'whenever the validity of a marriage is denied or doubted', the Legislature chose truly sweeping terms exhibiting an intent to vouchsafe to any party to the marriage contract an independent remedy in the nature of a declaratory judgment whereby the marital status under consideration might be dissolved or affirmed according to the proof, without regard to...