Littlefield v. Littlefield

• Decision Date: 30 June 1972
• Citation: 292 A.2d 204
• Parties: Brita Violet Hanson LITTLEFIELD a/k/a Violet H. Littlefield v. Clayton O. LITTLEFIELD.
• Court: Maine Supreme Court

Page 204

292 A.2d 204

Brita Violet Hanson LITTLEFIELD a/k/a Violet H. Littlefield v. Clayton O. LITTLEFIELD.

Supreme Judicial Court of Maine.

June 30, 1972.

Eaton, Glass, Marsano & Hammond by Francis C. Marsano, Belfast, for plaintiff.

Grossman, Faber & Miller 'P.A.' by A. Alan Grossman, Barry M. Faber, Rockland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY and WERNICK, JJ.

WEATHERBEE, Justice.

This complaint for divorce in which the Plaintiff wife is also seeking custody of the minor child, support, alimony, and counsel fees, was heard before a Judge of the District Court. After hearing the testimony of the Plaintiff, the Court found that there was a ground for divorce 'in the physical abuse and resulting physical suffering and mental anguish visited upon the Plaintiff by the actions of the Defendant' but dismissed the complaint because the Court also found condonation as a result of occasional instances of sexual intercourse between the parties while the suit for divorce was pending.

The Plaintiff was the only witness heard in the District Court. She testified to numerous acts of physical violence upon her by her husband during the eleven and a half years of their marriage which culminated in her bringing the present action. She said that while she and her husband were living apart and while her complaint for divorce was awaiting hearing in the District Court, she went three or four times to their camp where her husband was staying. She testified, on cross-examination:

'A Well, I went up to the camp with the idea of trying to come at some reasonable solution to our problems and settlement of all our difficulties-

Q So during the month of July you saw your husband how many times?

A Three or four times.

Q Now, tell us what happened on these three or four times?

A Well, we tried to talk about our problems, about the children, and we had a few drinks-

Q Was it all a sociable evening?

A I think that it was a sociable evening, yes.

Q And then what happened, if anything?

A Well, on a few of the occasions I stayed there with him.

Q And when you stayed there with him will you tell the court what you had?

A We had marital relations.

Q How many times?

A Three or four times, approximately.

Q And that was during the month of July?

A Yes.

Q And when you-did you have relations more than once on a visit on each visit?

A I don't recall exactly once possibly, twice possibly.

Q Your husband didn't force you?

A No.

Q This was a mutual-

A Yes, it was.

Q -thing, and there were no promises made to one another?

A No.'

Upon being pressed to explain her willingness to engage in sexual intercourse with her husband in view of her professed desire to be separated from him, the Plaintiff said:

'There is more to marriage than just the physical part of marriage but that part of our marriage was always very satisfactory, I still have a physical attraction towards him.'

The District Court Judge dismissed the Plaintiff's complaint, finding that the Plaintiff had sustained her burden of proving cruel and abusive treatment and that there was no recrimination but ruling that her three or four acts of sexual intercourse with her husband constituted condonation 'The sexual relationship entered into without expressed reservations is a restoration of all marital rights, and is, therefore, condonation.'

which was a bar to her action for divorce. He said:

The Plaintiff's appeal was later considered on the record by a Justice in the Superior Court. The Justice held that the District Court Judge's finding that the Plaintiff had satisfactorily presented proof of cruel and abusive treatment was demonstrated by the record but that the Judge's conclusion that condonation existed which required dismissal of the complaint was based upon an erroneous application of law. The Justice granted the divorce and remanded the matter to the District Court for further proceedings concerning custody, support, alimony and counsel fees.

The Defendant's appeal presents three issues for our consideration:

1) Is the Defendant-not having cross-appealed-now entitled to attack the finding of the Judge that the Plaintiff had proved cruel and abusive treatment by the Defendant which would entitle her to a divorce?

2) Was the Judge in error in ruling that the undisputed testimony of the Plaintiff demonstrates condonation which is a bar to her action for divorce?

3) If the Judge's finding of condonation was erroneous, is the Defendant now entitled to present further evidence in defense in the District Court?

THE RIGHT OF THE DEFENDANT APPELLEE TO ATTACK THE FINDINGS OF THE JUDGE ON PLAINTIFF'S APPEAL TO THE SUPERIOR COURT

Although the Judge denied Plaintiff's complaint for divorce her made a specific finding that cruel and abusive treatment had been proved. The Plaintiff appealed from the judgment denying the decree of divorce, claiming as error the Judge's finding of condonation. The Defendant-successful in that the judgment was in his favor-did not cross-appeal. (He did appeal later from the judgment of the Superior Court Justice and then assigned the finding of cruel and abusive treatment as a claimed error of the Justice.) He now urges us that the Judge was in error in finding that Plaintiff had proved cruel and abusive treatment and that the Justice was in error in holding, on appeal, that the record supported the Judge's finding.

The issue raised is one of novel impression under our rules. We are now required to construe our Rules of Civil Procedure and our District Court Civil Rules to determine for the first time what issues are available on appeal to the winning party who seeks only to protect the judgment in his favor but who has not cross-appealed.

M.R.C.P. Rule 73(a) supplies the proper procedure for filing cross-appeals to the Law Court and District Court Civil Rule 73 provides that

'. . . (I)f a timely notice of appeal is filed by a party, any other party may file a notice of appeal . . .'

Both rules provide machinery for cross-appeals but neither rule sets forth the circumstances under which the appellee should cross-appeal. Field, McKusick & Wroth, Maine Civil Practice, § 73.10 makes this analysis of the situation:

'. . . The federal cases make it clear that the appellee, if he wishes to do more than defend the judgment on any ground available on the record, must file a cross-appeal. Otherwise the appellee cannot on the appeal enlarge his rights under the judgment appealed from, or lessen the rights of the appellant thereunder. The Maine statute which previously declared the contrary rule in appeals of equity cases ¹ was repealed Our section (e) is substantially the same in this respect as Federal Rule 74, which is now Rule 3(a) of the Federal Rules of Appellate Procedure. Professor Wright has described the construction which the Federal Courts have generally given their rule in this manner:

in 1959, and thus the law declared by the federal cases (and also previously applied in Maine in actions at law) is now applicable generally on appeals. . . .' (Footnote added.)

'The ancient doctrine can be simply stated, even if not so simply applied in every case. The appellee may, despite a failure to file a cross appeal, defend a judgment on any ground consistent with the record, even if rejected in the lower court. But he cannot attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary unless he files a cross appeal, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.' Wright, Federal Practice & Procedure; Barron and Holtzoff, Vol. 3A § 1572.

This analysis appears to be supported by the holdings in Abel v. Brayton Flying Service, 248 F.2d 713 (5th Cir. 1957); Kirby Lumber Corporation v. State of Louisiana, 293 F.2d 82 (5th Cir. 1961); United States ex rel. Carter-Schneider-Nelson, Inc. v. Campbell, 293 F.2d 816 (9th Cir. 1961), cert. denied, 368 U.S. 987, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962); Swig v. Tremont Trust Co., 8 F.2d 943 (1st Cir. 1925) and Tillman & Bendel v. California Packing Corporation, 63 F.2d 498 (9th Cir. 1933).

In Waterman Steamship Corporation v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969), the Court permitted a non-appealing party, successful below, to attack the Judge's findings, saying:

'Appellees contend that the denial of limitation of liability can be affirmed on other grounds. Although they filed no cross-appeals, they argue that certain of the District Court's findings of fact were clearly erroneous. This they may do. A cross-appeal is needed only when a party seeks to change or add to the relief afforded below, but not when a party merely seeks to sustain a judgment for reasons presented at trial but not relied upon by the trial judge (or even determined by the judge adversely to the appellee). An appellee may urge any matter appearing in the record to support a judgment.'

In Cook v. Hirschberg, 258 F.2d 56 (2d Cir. 1958), the appellee was permitted on his opponent's appeal to attack the ruling of the Judge below rejecting one of his three defenses.

On the other hand, in Schildhaus v. Moe, 319 F.2d 587 (2d Cir. 1963), the Circuit Court refused to review findings adverse to the non-cross-appealing appellee. In United States Potash Co. v. McNutt, 70 F.2d 126 (10th Cir. 1934) he appellee who did not cross-appeal was not permitted to claim as error the Presiding Judge's refusal to submit an issue to the jury.

Thus, while it appears certain that a Federal non-cross-appealing appellee cannot use his opponent's appeal as a vehicle with which to enlarge his judgment-for example, he may not seek to increase a monetary award of damages-it is by no means clear what grounds apparent on the record are available to him in the Federal Courts when he seeks only to defend his judgment.

On the other hand, the State Court decisions on this issue appear almost unanimously to hold...