Henriksen v. Cameron

622 A.2d 1135, 1993 Me. LEXIS 44

• Court: Supreme Judicial Court of Maine
• Decided: March 24, 1993
• Status: Published

Opinions

COLLINS, Justice.

In this case, we are asked to decide whether a spouse, now divorced, may recover for emotional suffering intentionally inflicted by the former spouse during their marital relationship through physical violence and accompanying verbal abuse. A jury returned a verdict in favor of the injured plaintiff, Marie B. Henriksen, in her action for intentional infliction of emotional distress against her former husband, John Malcolm Cameron. Cameron appealed asserting two evidentiary challenges and raising the question whether Henriksen’s tort action is barred after the parties’ divorce judgment by the doctrine of res judicata. In addition, he argues that the action is barred by the doctrine of interspousal immunity. We hold that Henriksen’s action for intentional infliction of emotional distress is not barred either by the doctrine of interspousal immunity or res judicata. We also find that the evidentiary issues raised by Cameron did not constitute reversible error. Therefore, we affirm the judgment.

Facts and Procedure

The parties met in England in November 1973 and were married in March 1974. They lived in Goose Rocks Beach where they operated Henriksen’s seasonal hotel, the Tides Inn. Henriksen and Cameron separated in the fall of 1986. During the course of their marriage, Cameron physically and emotionally abused Henriksen. This abuse ranged from Cameron’s accusing Henriksen of “sleeping with” his brother to his raping and assaulting her.¹ Following the separation, Henriksen filed a complaint for divorce on the ground of cruel and abusive treatment. On the day the divorce was scheduled to be heard, the parties engaged in settlement negotiations, and agreed that Henriksen would amend the ground of her divorce complaint to irreconcilable differences. In July 1988, the Superior Court (York County, Cole, J.) granted the parties a divorce on the ground of irreconcilable differences and, following the parties’ oral settlement agreement, divided their marital property and ordered that neither party was required to pay alimony, separate support, or maintenance to the other.

In April 1989, Henriksen sued Cameron for intentional and negligent infliction of emotional distress resulting from physical and psychological abuse. At the close of Henriksen’s case, the Superior Court (Fritzsche, /.) granted a directed verdict in favor of the defendant on the negligent infliction of emotional distress claim.² Since we are not vacating the judgment, only the intentional infliction of emotional distress claim is before us.

The jury found in favor of Henriksen on the intentional infliction of emotional distress claim and awarded her $75,000 in compensatory damages and $40,000 in punitive damages. Cameron appeals from that judgment.

I.

Interspousal Immunity

In 1877, we embraced the doctrine of interspousal immunity, holding that “the general principle of the common law [is] that husband and wife are one person ... and ... being one person, one cannot sue the other.” Abbott v. Abbott, 67 Me. 304, 306 (1877). In Abbott we reasoned, “it is better to draw the curtain, shut out the public gaze, and leave the parties to forgive and forget.” Id. at 307. The Abbott court held that a tort remedy was not necessary, stating:

Practically, the married woman has remedy enough. The criminal courts are open to her ... [and] [a]s a last resort, if need be, she can prosecute at her husband’s expense a suit for divorce.

Id. See also Moulton v. Moulton, 309 A.2d 224 (Me.1973) (interspousal immunity did not bar action for conduct prior to marriage but did bar action for conduct occurring during marriage).

In a 1980 negligence action by a wife against her husband for injuries sustained in an automobile accident, however, we overruled Abbott, holding:

[O]ne person is not precluded from maintaining an action to recover damages caused by the alleged tortious conduct of another person solely because the conduct complained of occurred while they were husband and wife.

MacDonald v. MacDonald, 412 A.2d 71, 73 (Me.1980). We adopted a cautious approach, however, and in a footnote, said:

[T]his decision does not extend to other areas of the law where the special nature of the marital relationship may have impact for various other reasons of policy. Examples of such different considerations of policy are ... the treatment of particular conduct between husband and wife, by virtue of the mutual concessions that may be implicit in the marital relationship, as privileged or not tortious, even though such conduct as between persons not married to each other may not be so regarded.

Id. at 75 n. 5.³ The issue before us then, is whether physical violence accompanied by verbal abuse that was intended to inflict emotional distress is, by virtue of the mutual concessions implicit in marriage, privileged or not tortious because the parties were married to each other when that violence occurred. We hold that it is not so privileged.

In Vicnire v. Ford Motor Credit Co., 401 A.2d 148 (Me.1979), we recognized the tort of intentional infliction of emotional distress and adopted the definition provided by the Restatement (Second) of Torts § 46. Accordingly, a plaintiff asserting intentional infliction of emotional distress is required to show:

(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain that such distress would result from his conduct; (2) the conduct was so “extreme and outrageous” as to exceed “all possible bounds of decency” and must be regarded as “atrocious, and utterly intolerable in a civilized community;” (3) the actions of the defendant caused the plaintiff’s emotional distress; and (4) the emotional distress suffered by the plaintiff was so “severe” that “no reasonable man could be expected to endure it.”

Id. at 154 (citations omitted). We later recognized that “[a] person’s psychic well-being is as much entitled to legal protection as is his physical well-being.” Gammon v. Osteopathic Hosp. of Me., Inc., 534 A.2d 1282, 1283 (Me.1987).

Deciding actions for intentional infliction of emotional distress arising from conduct occurring within the marital setting requires special caution. Policy concerns raised in Abbott over 100 years ago remain important today. Certainly we no longer consider the husband and wife a single legal entity barring all suits between them.⁴ Nevertheless, we do recognize the desire to preserve marital harmony. In this case, brought after the parties were divorced, there is clearly no marital harmony remaining to be preserved. Moreover, behavior that is “utterly intolerable in a civilized society” and is intended to cause severe emotional distress is not behavior that should be protected in order to promote marital harmony and peace.⁵

A second policy concern is the threat of excessive and frivolous litigation intruding into the marital lives of the parties. Admittedly, this is of particular concern after a divorce since the events leading to most divorces involve some level of emotional distress and the likelihood of vindictive post-divorce litigation may be especially high. One court has expressed this concern as follows:

[I]n determining when the tort of outrage [i.e. intentional infliction of emotional distress] should be recognized in the marital setting, the threshold of outra-geousness should be set high enough — or the circumstances in which the tort is recognized be described precisely enough ... — that the social good from recognizing the tort will not be outweighed by unseemly and invasive litigation of merit-less claims.

Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320, 1326 (App.1991). The showing required of a plaintiff in order to recover damages for intentional infliction of emotional distress provides a built-in safeguard against excessive and frivolous litigation. The plaintiff must prove that the defendant’s conduct was so “extreme and outrageous” it exceeded “all possible bounds of decency.” Restatement (Second) of Torts § 46. Jurors, many of whom are themselves married, are in the best possible position to determine what behavior between spouses is “atrocious and utterly intolerable in a civilized community,” id., and what behavior is within the “ebb and flow” of married life. In order to protect defendants from the possibility of long and intrusive trials on meritless claims, motions for summary judgment should also be viewed sympathetically in interspousal cases. See Hakkila, 812 P.2d at 1327.

Another policy concern raised in Abbott was that a tort action for compensation was simply redundant. Abbott, 67 Me. at 307. In Maine, a spouse may seek the cessation of abuse via a protective order or a consent agreement. 19 M.R.S.A. § 766 (1981 & Supp.1992). Violation of a protective order or consent agreement constitutes a Class D crime. 19 M.R.S.A. § 769 (1981 & Supp.1992). These provisions, however, provide no compensatory relief for injuries sustained. Id.; see also Merenoff v. Merenoff 76 N.J. 535, 388 A.2d 951, 962 (1978) (“The criminal law may vindicate society’s interest in punishing a wrongdoer but it cannot compensate an injured spouse for her or his suffering or injury.”).

Divorce also provides no compensatory relief. See Merenoff 388 A.2d at 962 (“Divorce or separation provide escape from tortious abuse but can hardly be equated with a civil right to redress and compensate for personal injuries.”). In Maine, courts are not allowed to consider fault in the distribution of property on divorce. Eaton v. Eaton, 447 A.2d 829, 831 (Me.1982) (citing Boyd v. Boyd, 421 A.2d 1356, 1357-58 (1980)). We have also stated that “[ajlimony is intended to fill the needs of the future, not to compensate for the deeds of the past.” Skelton v. Skelton, 490 A.2d 1204, 1207 (Me.1985).⁶

Courts around the country have recognized that public policy considerations should not bar actions for intentional infliction of emotional distress between spouses or former spouses based on conduct occurring during the marriage. See, e.g., Hakkila, 812 P.2d at 1320 (action for the tort of outrage, i.e. intentional infliction of emotional distress, is not barred in interspousal context); McCoy v. Cooke, 165 Mich.App. 662, 419 N.W.2d 44 (1988) (reversing trial court’s dismissal of wife’s action for assault and battery and intentional infliction of emotional distress against her former husband for his conduct during marriage); Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418, 420 (1991) (same); Stuart v. Stuart, 143 Wis.2d 347, 421 N.W.2d 505 (1988) (same).

Even this court, without addressing in-terspousal immunity, has upheld a jury award in favor of a wife' who sued her former husband for assault and battery and intentional infliction of emotional distress based in part on conduct occurring during the marriage. Caron v. Caron, 577 A.2d 1178 (Me.1990). Mr. Caron did not challenge nor did we question the admissibility of evidence of conduct occurring pri- or to the parties’ divorce but within the scope of the statute of limitations to prove his former wife’s case of intentional infliction of emotional distress. Id. Nor did we mention in Caron any bar against recovery for intentional infliction of emotional distress occurring during the marriage.

No valid public policy suggests making the intentional infliction of emotional distress through physical violence and accompanying verbal abuse during the marriage privileged conduct. Nor do our decisions or those of a majority of other courts support such a conclusion. We hold, therefore, that such an action between spouses is not barred by interspousal immunity.

ii.

Res Judicata

Cameron asserts that the doctrine of res judicata bars a tort action brought subsequent to a divorce judgment between the two parties. We disagree.

A prior civil action will bar a subsequent civil claim if:

1) the same parties, or their privies, are involved; 2) a valid final judgment was entered in the prior action; and 3) the matters presented for decision were, or might have been, litigated in the prior action.

Beegan v. Schmidt, 451 A.2d 642, 644 (Me.1982) (quoting Kradoska v. Kipp, 397 A.2d 562, 565 (Me.1979)). Clearly the parties are the same and a final divorce judgment was entered.⁷

More difficult is determining whether the matters presented for decision were, or might have been, litigated in the prior action. Although Cameron’s conduct could probably have been grounds for a divorce based on cruel and abusive treatment, raising that issue in an action for divorce does not make that action the “same cause of action” as a tort action especially when that action was completely dropped. The New Hampshire Supreme Court has held and we agree that:

Although we have emphasized that ‘a change in labels is not sufficient to remove the [preclusive] effect of [a] prior adjudication/ [citation], 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.

Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909, 911 (1987) (emphasis added) (holding that divorce granted on ground of extreme cruelty did not bar husband’s subsequent tort action against former wife). An action for divorce, even based on the ground of cruel and abusive treatment, is not based on the same underlying claim as an action in tort:

The purpose of a tort action is to redress a legal wrong in damages; that of a divorce action is to sever the marital relationship between the parties, and where appropriate, to fix the parties’ respective rights and obligations with regard to alimony and support, and to divide the marital estate.

Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151, 153 (1988) (citations omitted).

Furthermore, Maine’s substantive divorce law is hostile to a divorce court’s consideration of, not to mention determination of, tortious conduct. In divorce actions, the court’s inquiry is limited to the determination of a valid basis for divorce. Maine courts are prohibited from considering fault in dividing marital property, see Eaton, 447 A.2d at 831, or in awarding alimony, see Skelton, 490 A.2d at 1207. Requiring a party to raise tort claims in a divorce action would inject a detailed examination of fault into the litigation; a result the legislature clearly did not intend. In fact, such a requirement would undermine the policy premises of no-fault divorce.

The special procedure involved in divorce actions, which are traditionally equitable in nature, also makes joining tort claims impracticable. The most problematic procedural difference between tort and divorce actions is the right to a jury trial in tort actions that would require bifurcation of at least part of the trial. As one court has expressed:

Resolution of tort claims may necessarily involve numerous witnesses and other parties such as joint tortfeasors and insurance carriers whose interests are at stake. Consequently, requiring joinder of tort claims in a divorce action could unduly lengthen the period of time before a spouse could obtain a divorce and result in such adverse consequences as delayed child custody and support determinations.

Stuart, 421 N.W.2d at 508.⁸

The res judicata question before us today has been considered in a number of other jurisdictions. The majority of courts agree that tort claims are not barred subsequent to a divorce judgment because of res judicata. See Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24 Fam.L.Q. 127, 180-31 (1990); see, e.g. Simmons v. Simmons, 773 P.2d 602 (Colo.App.1988) (wife’s post-dissolution claim for intentional infliction of emotional distress against former husband not barred by res judicata); Waite v. Waite, 593 So.2d 222 (Fla.App.3d Dist.1991) (same; assault and battery claim); McCoy v. Cooke, 165 Mich.App. 662, 419 N.W.2d 44, 46 (1988) (same; assault and battery and intentional infliction of emotional distress claim not barred even when divorce court divided marital property according to parties’ fault); Aubert, 529 A.2d at 911 (husband’s tort claim against former wife for damages caused by her shooting him in the face not barred under res judicata by divorce judgment even though divorce granted on basis of shooting incident); Noble v. Noble, 761 P.2d 1369 (Utah 1988) (wife’s intentional tort claim, including a claim for the intentional infliction of emotional distress, against her former husband was not barred by claim preclusion after divorce action); Stuart, 421 N.W.2d at 508-09 (same).

Cameron asserts that the divorce settlement resolved all disputes and grievances arising out of the marriage so that the parties would be free to “get on with their lives.” Cameron’s interest in finality is better left to statutes of limitations that are specifically intended to reconcile the injured party’s interest in compensation with the liable party’s interest in a terminal date to possible litigation. Harvie v. Bath Iron Works Corp., 561 A.2d 1023, 1025 (Me.1989). Furthermore, nothing prevented Cameron from including a general release in the divorce settlement agreement. At least in some states, “[sjuch broad general releases seem to be standard operation in sophisticated matrimonial settlement agreements.” Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24 Fam.L.Q. 127, 154 n. 126 (noting New York practice).

III.

Statute of Limitations

The Superior Court (York County, Fritzsche J.) ruled that Henriksen could not recover damages for any physical acts of violence by Cameron because these acts were subject to the two-year statute of limitations for assault and battery. Cameron contends that because the “underlying” claim is barred, Henriksen’s claim for intentional infliction of emotional distress is also barred. We disagree.

Nothing in our opinions suggests that a claim for intentional infliction of emotional distress cannot stand as an independent claim. Nor have we suggested that these claims should be limited to the statute of limitations of other tort claims brought simultaneously by a plaintiff. In fact, in an action between former spouses for the intentional infliction of emotional distress and for assault and battery, we used a six-year statute of limitations period to determine what evidence was time-barred. Caron v. Caron, 577 A.2d at 1178. The appropriate limitations period for intentional infliction of emotional distress claims is six years, not two. 14 M.R.S.A. § 752 (1980).

IV.

Evidence of Physical Abuse

Outside of the presence of the jury, Henriksen testified about six assaults and three rapes perpetrated by Cameron. The Superior Court only allowed Henriksen to testify before the jury as to two incidents of physical abuse: a 1986 rape and a 1980 assault. The court instructed the jury that the admission of these incidents was only to show the reasonableness of Henriksen’s emotional response to Cameron’s threats and to show Cameron’s motive and intent with respect to the non-physical conduct. The trial court further instructed the jury not to award damages for those physical acts.⁹ Cameron argues that he should be granted a new trial because this time-barred evidence was unduly prejudicial.

First at issue is whether the evidence is beyond the scope of the statute of limitations at all. Henriksen’s complaint was filed on April 25, 1989. Therefore, the 1980 incident was clearly beyond the scope of the statute of limitations. The disagreement arises over the 1986 incident. Cameron argues the two-year statute of limitations for assault and battery should bar all evidence of physical abuse. We disagree.

As discussed above, the statute of limitations period for intentional infliction of emotional abuse is six years. Although the two-year limitation bars Henriksen from recovering any damages for the physical injury she suffered from the assault and battery inflicted by Cameron; it does not bar her from recovering for emotional injuries sustained from those physical assaults occurring within six years of her action. The evidence of physical abuse between 1983-1986, therefore, was not beyond the statute of limitations period and should have been admitted as substantive evidence of her claim.

Even though the 1980 assault was beyond the statute of limitations period, the trial court did not abuse its discretion by admitting that evidence. In an action for assault and battery and intentional infliction of emotional distress, we have said that it is sometimes appropriate to admit evidence of conduct occurring beyond the six-year statute of limitations

for the purposes of establishing the defendant’s intent or motivation as well as on the issue of whether or not [the plaintiff] reasonably believed any threats that may have been made by [the defendant].

Caron, 577 A.2d at 1180. In the case at bar, the trial court admitted the evidence of the 1980 assault for precisely such purposes. Cameron argues that the admission of the 1980 assault was overly prejudicial. Because Henriksen was prevented from introducing to the jury at least six events of physical abuse occurring between 1983 and 1986 as substantive support for her claim, however, we cannot say that the introduction of the 1980 assault was overly prejudicial to Cameron especially in light of the proper limiting instructions.

V.

Dr. Collins’ Testimony

Dr. Jerome Collins testified as Henrik-sen’s only expert witness that as a result of Cameron’s abusive behavior, Henriksen was suffering from post-traumatic stress syndrome. When asked whether he had consulted with anyone else regarding his diagnosis and treatment of Henriksen, Dr. Collins testified, over objection, that another psychiatrist, Dr. Carlyle Voss, prepared a “diagnostic evaluation” that agreed with his opinion “on virtually all aspects of the case.” The trial court admitted this testimony regarding Dr. Voss’s report, notwithstanding its hearsay nature, pursuant to M.R.Evid. 703. Two subsequent references to Dr. Voss’s report were also admitted: one on direct examination¹⁰ and one in closing arguments.¹¹ Cameron argues that Dr. Collins’ testimony about the substance of Dr. Voss’s opinion was hearsay that should have been excluded and this prejudicial error calls for a new trial. Although we agree that this evidence should have been excluded, we find its admission harmless error. See M.R.Civ.P. 61.

Once the trial court has determined that an expert is qualified to render an opinion relevant to the pending case, it must then determine whether the opinion is based on a proper factual foundation. State v. Thompson, 503 A.2d 689, 692 (Me.1986); see also M.R.Evid. 703 & 705. Rule 703 reads in full as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(emphasis added). A trial court’s decision to admit opinion evidence pursuant to Rule 703 will not be reversed unless it is clearly erroneous. McLellan v. Morrison, 434 A.2d 28, 30 (Me.1981).

In the case before us, the parties agreed that Dr. Collins was a “qualified licensed doctor who is qualified and licensed and practices in the area of psychiatry.” Dr. Collins’ opinion also met the requirements of Rule 703 because it was supported by, among other things, Dr. Voss's report. The report of another physician constitutes “facts or data ... of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” M.R.Evid. 703; see McLellan, 434 A.2d at 30 (“In conferring with another medical expert, [the expert witness] was merely following a procedure similar to consulting a medical textbook to obtain a confirmation of his own tentative conclusion.”).

Pursuant to Rule 703, Dr. Collins could testify that he relied on Dr. Voss’s report in order to establish the factual foundation necessary for the admissibility of his opinion. Testimony regarding the substance of Dr. Voss’s report, however, is not necessary to establish factual foundation under Rule 703 and remains hearsay not within any exception. See M.R.Evid. 801-804. Rule 703 does not make the substance of Dr. Voss’s report admissible and, therefore, admitting Dr. Collins’ testimony about the substance of the report was error.

The trial court’s error in admitting this evidence, however, was harmless. See M.R.Civ.P. 61.¹² From Dr. Collins’ testimony that he relied on Dr. Voss’s report which was properly admitted, a jury could infer that Dr. Voss’s report essentially supported Dr. Collins’ opinion. Therefore, the admission of evidence confirming that Dr. Voss agreed with Dr. Collins was cumulative and thus its admission constitutes harmless error not requiring reversal.

The entry is:

Judgment affirmed.

WATHEN, C.J., and ROBERTS and CLIFFORD, JJ., concur.

1 . Cameron’s actions included, for example: shattering the doors of kitchen cabinets while he "came after” her meanwhile calling her a “lying, whoring bitch" who was "stealing money from him;” calling Henriksen at a friend’s house where she was staying because she was afraid to come home and threatening to burn down the inn; tearing down a wall in the dining room before she returned; swaying over her bed and threatening to “get” her; threatening that Henriksen would get what his mother got (referring to his father’s beating his mother); and pulling the telephone out of the wall and telling Henriksen he did so to prevent her from calling for help. Most of this conduct occurred while Cameron was intoxicated.

2 . On cross appeal, Henriksen asserts that if this court remands for a new trial, this claim should be reinstated.

3 . In fact, this approach to interspousal immunity is a common one. One commentator has stated:

With the general extinguishment of inter-spousal immunity, there has been a concern that every divorce action could become a tort action_ Even with the elimination of immunity there is general agreement that not every act between strangers should be tortious between spouses. There are "mutual concessions implied in the marital relationship.” The courts must respect the "ebb and flow of married life.” Liability is usually limited to those situations where a clear abuse of marital privilege exists.

Robert G. Spector, Marital Torts: Actions for Tortious Conduct Occurring During the Marriage, 5 AmJ. of Fam.L. 71, 72 (1991).

4 . That married couples were ever considered one legal entity, i.e., the husband, demonstrates the difficulty women have faced in the courts of this country. The 1988 Conferences of the Chief Justices, held in Rockland, Maine and representing courts throughout the country, adopted a significant resolution urging positive action by chief justices to address the issue of gender bias in the court system. Resolution XVIII, Conferences of the Chief Justices (Aug. 4, 1988). Because the existence of gender bias has been well documented nationally, this court has promulgated an order, effective January 1, 1993, establishing a Commission on Gender, Justice, and the Courts. This Commission will consider how gender affects the treatment of women and men in the legal and judicial environment and will develop a program to ensure that gender-based myths, biases, and stereotypes do not affect judicial decision making. ■ One area of study for the Commission will also be domestic violence.

5 . The Legislature has moved in a similar direction by expanding the State’s rape statute to include non-consensual intercourse between spouses as criminal conduct. See 17-A M.R.S.A. § 253 (Supp.1992).

6 . This decision is clearly, supported by the legislative history surrounding the alimony statutes. The Legislature’s recent efforts to establish more specific alimony guidelines were intended to prevent fault from being a consideration in alimony awards without eliminating the discretion of the courts completely. The primary sponsor of this legislation testified that:

[A]lthough divorce is supposed to be no-fault in Maine and most of the rest of the country, we can all name a case where the economic impact was clearly derived at by a judge who did make a determination of who was mostly to blame. To say that this is inappropriate for a number of reasons ... doesn’t detract from the fact that we all know it happens occasionally and having few guidelines enhances the probability that a [judgment] will be [affected] by the judge’s perception of fault. It is also impossible to prove that the economic decision was rendered with fault in mind in [order] to appeal on those grounds.

Testimony of Rep. Dore before the Judiciary Committee on March 29, 1989 on L.D. 656 (114th Legis.1989) (emphasis in original).

7 . Cameron also argues that through their settlement agreement, the parties had reached an accord and satisfaction on Henriksen's tort claim. That issue was properly submitted to the jury, and from the record before us we cannot say that the jury was compelled to find that the parties came to a "meeting of the minds” on the issue of accord and satisfaction. See Rosenthal v. Rosenthal, 543 A.2d 348, 354 (Me.1988).

8 . Maine has further procedural restrictions on divorce actions which, although not expressly precluding the joinder of a tort claim, make the two actions incompatible. For example, M.R.Civ.P. 80(b) prohibits all counterclaims in divorce actions except those for “divorce, annulment, separate support, or a determination of parental rights and responsibilities.” Additionally, M.R.Civ.P. 80(g) limits discovery to “issues of alimony, support, counsel fees, and disposition of property” unless by order for good cause shown. Given these limitations, the preclusion of tort claims in a divorce action can be inferred from the structure of M.R.Civ.P. 80. See Ward v. Ward, 155 Vt. 242, 583 A.2d 577, 580 (1990) (interpreting Vermont's Rule 80 (virtually identical to Maine’s) to preclude tort claims brought in a divorce action); see also Windauer v. O’Connor, 107 Ariz. 267, 485 P.2d 1157, 1158 (1971) ("peculiar and special nature of a divorce action speaks against the bringing of [it together with a tort action] in one litigation”).

9 . The Superior Court stated:

I will also instruct that no damages ... can be awarded for any physical violence at any time, or for any pre-April 25, 1983, incidents of any nature. Again, the purpose would simply be for the jury to understand ... the reasonableness of her reactions to ... any other incidents they find to be truthful, and his intentions in doing those things.

10 .Later in the direct examination of Dr. Collins the following exchange occurred:

Q. You've also just spoken, Doctor, about the severity of [Henriksen’s] condition, is it possible to quantify, if you will the nature of her emotional distress?

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Q. Her symptoms?

A. The degree of the stressors ... I think both Dr. Voss and myself have adjudged those to be severe.... I would concur with his judgment that they're moderate) ] to severe ....

[Counsel]: Objection ... this is clearly an abuse ... his again and again using Dr. Voss as substantive evidence ...

11 . In closing arguments, counsel for Henriksen stated: "We know that Dr. Voss, the head of the Maine Medical Psychiatric Unit agrees with, has written a report that confirms everything that Dr. Collins believes.” No objection was apparent from the record on appeal.

12 . M.R.Civ.P. 61 provides in relevant part:

No error in either the admission or the exclusion of evidence ... is grounds for granting a new trial or setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.