Lausier v. Lausier

• Decision Date: 24 May 1924
• Citation: 124 A. 582
• Parties: LAUSIER v. LAUSIER.
• Court: Maine Supreme Court

124 A. 582

LAUSIER

v. LAUSIER.

Supreme Judicial Court of Maine.

May 24, 1924.

Exceptions and Appeal from Supreme Judicial Court, York County, at Law.

Petition by Louis B. Lausier against Aline M. Lausier for judicial separation. Judgment reversing decree of the probate court for petitioner, and petitioner appeals and excepts. Exceptions sustained.

Argued before CORNISH, C. J., and PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Francis W. Sullivan and Henry Cleaves Sullivan, both of Portland, for appellant.

Willard & Ford, of Sanford, for appellee.

WILSON, J. This case originated in the probate court of York county, on petition of the appellee for a judicial separation from the appellant under sections 10-13, c. 66, R. S. The judge of probate, after having found that the respondent in that court, Aline M. Lausier, on August 13, 1921, deserted the petitioner without just cause and had lived apart from him for more than one year prior to the filing of his petition, entered a decree in accordance with section 11 of the above chapter.

From this decree the respondent appealed to the Supreme Court of Probate, alleging in part as her reasons for appeal (1) that she did not desert her husband, Louis B. Lausier, without just cause, but because of his continuous and unfounded cruel and abusive treatment of her; (2) that said Louis B. Lausier was not deserted without just cause; (3) that said Louis B. Lausier has not lived apart from her for just cause for a period of at least a year prior to the filing of his petition.

The other reasons assigned are not valid reasons of appeal and need not be considered.

At the hearing before the Supreme Court of Probate the sitting justice reversed the decree of the judge of probate, holding that the appellant had just cause for living apart from the appellee, and solely upon the ground of his impotency, expressly stating in his decree:

"The issue upon which I base my conclusions is whether the petitioner and appellee was able to consummate the marriage relations by having sexual intercourse with the appellant, his wife. She alleges (claims) that she left him on August 13, 1921, because he was unable to accomplish that end."

To this decree and the rulings of law involved therein, the appellee excepted, and the ease is before this court on his exceptions. The real issue presented by the exceptions is whether the appellant is now estopped from relying, and the Supreme Court of Probate erred in basing its decree, upon the alleged impotency of the appellee as a justification for her leaving his bed and board; the appellant having prior to the filing of the appellee's petition in the probate court brought a libel for divorce against the appellee, alleging as one of the grounds for divorce his impotency existing from the time of their marriage, upon which libel a divorce was denied.

It is a familiar rule of law that, in a subsequent proceeding between the same parties for the same cause of action, both parties are concluded by a prior judgment, not only upon all issues which were actually tried in the former proceedings, but also upon all which the record shows might have been tried. Cromwell v. Sac. County, 91 U. S. 351, 24 L. Ed. 195.

Where, however, although the parties are the same, the cause of action or issue is different, a prior judgment is only, conclusive upon such issues as were actually tried, and the burden is on the party setting up the judgment as an estoppel to show that the same issue was involved and determined on its merits in the prior proceeding. Foye v. Patch, 132 Mass. 110; Russell v. Place, 94 U. S. 606, 24 L. Ed. 214; Cromwell v. Sac. County, supra; Embdem v. Lisherness, 89 Me. 581, 36 Atl. 1101, 56 Am. St. Rep. 442; Smith v. Brunswick, 80 Me. 193, 13 Atl. 890.

The appellant contends that the issue in these proceedings is not necessarily the same as in the libel for divorce; that a curable or temporary impotency, or abusive treatment, or habits of intoxication which might not be sufficient to constitute grounds for divorce, might justify a wife in leaving her husband's bed and board. Lyster v. Lyster, Ill. Mass. 327, 330; Newman's Case, 222 Mass. 563, 567, Ill. N. E. 359.

The issue, however, presented by appellee's exceptions, relates solely to the question of the husband's impotency. Although the appellant stated in her testimony that she left her husband in part because of his treatment of her and his habits, the decree of the Supreme Court of Probate rests solely on the impotency of the husband as a justification of her deserting him and living apart from him since August 13, 1921. Either because he did not deem the evidence warranted it, or because he deemed it unnecessary, the justice presiding in the Supreme Court of Probate made no finding as to alleged abuse by the husband, or his habits, but expressly based his decree upon his inability to consummate the marriage relations, which he refers to as "the vital issue in the case."

The appellee urges in support of his exceptions that, inasmuch as the appellant in her libel for divorce, brought soon after she left her husband in August, 1921, when required to file specifications, finally relied upon cruel and abusive treatment, gross and confirmed habits of intoxication, and impotency, which she described in her specifications as permanent and incurable and existing prior to the marriage, and her divorce being denied, she is now estopped from setting up this same...