Dow (f/k/a Adams) v. Adams, corrected 3-18-98
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 48
Docket:		Cum-97-380
Submitted
on briefs:		January 8, 1998
Decided :		March 6, 1998

Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ  and SAUFLEY, JJ.

MARY (ADAMS) DOW

v.

STEPHEN D. ADAMS

CLIFFORD, J.

	[¶1]  Stephen D. Adams appeals from a judgment entered in the
Superior Court (Cumberland County, Calkins, J.) affirming a District Court
(Portland, MacNichol, J.) judgment denying his motion to amend the
divorce judgment to terminate his alimony liability to Mary (Adams) Dow as
of the date of Dow's remarriage.  On appeal Adams contends that the District
Court's enforcement of alimony was error, because it ignored an
unmistakable injustice, incorrectly placed the burden of proof on him, and
failed to apply the doctrines of laches and res judicata.  Finding no error, we
affirm.
	[¶2] The parties married in 1966.  They were divorced pursuant to a
judgment of the District Court in February of 1979.  By the terms of the
decree, Adams was to pay alimony of $20 per week.  Also pursuant to the
decree, Dow executed a $12,000 promissory note to Adams payable upon
the latter of the 18th birthday or the high school graduation of their
youngest child.  Dow remarried on June 28, 1980.  It was at that time that
Adams ceased making alimony payments.
	[¶3]  On May 14, 1991 Dow moved to enforce the original divorce
decree, requesting $960 in alimony arrearages up to the date of her
remarriage.  Pursuant to a court order entered October 5, 1992, Dow
"agree[d] to waive any entitlement she may have to arrearages in alimony
payments under the parties' Divorce Judgment."  (emphasis added).  The
divorce judgment stated that "in all other respects" the original decree
"shall remain in full force and effect." 
	[¶4]  On October 2, 1995 the $12,000 note became due.  Dow refused
to pay, and Adams brought a separate action in the District Court on the
note.  Dow counterclaimed in that action seeking an offset for alimony
arrearages from the date of her remarriage in 1980.  Adams also filed a
motion in the District Court to amend the original divorce judgment to end
Dow's right to receive alimony as of the date of her remarriage.  The court
effectively consolidated Adams's motion to amend the divorce decree and
the suit and counterclaim on the note, making a complete disposition of the
issues being litigated between the two parties.  
	[¶5]  Between her remarriage in 1980 and 1995 Dow did not request
alimony payments from Adams.  She testified to having kidney problems at
the time of her divorce, and continuing osteoporosis, preventing her from
working even twenty hours per week.  Her second husband earns $32,000
per year, and they have two children living at home.
	[¶6]  Adams introduced no evidence impeaching Dow's portrayal of
her health or financial situation, nor any evidence as to his own financial
situation or any reliance he might have had on Dow's non-enforcement of
the alimony obligation.  The court ruled that Dow waived alimony arrearages
existing as of the October 5, 1992 court order, but that there had been no
termination of her right to alimony from that date forward.  The court
further found that Dow's serious medical problems have remained ongoing
since the divorce.  The court entered judgment for Adams for the $12,000
note, and allowed Dow to offset $3,980 for the unpaid alimony.  The
Superior Court affirmed the judgment of the District Court, and this appeal
by Adams followed.

I.

	[¶7]  The District Court concluded that remarriage does not
terminate the award of alimony, and that while it had the authority to modify
the award retroactively, it was not required to do so.{1}  Adams argues that the
holding in Bubar v. Plant, 141 Me. 407, 410 (1945), that proof of remarriage
establishes a prima facie case for alimony to cease, shifts the burden to Mrs.
Dow to show "proof of some extraordinary circumstance justifying
[alimony's] continuance." Id.  He contends that the court therefore made an
error of law by stating in its findings and conclusions that he failed to meet
his burden of proof because he "chose not to testify" and that "the record is
silent as to any hardship caused [to him] by the alimony payment."
	[¶8]  When the Superior Court acts as an intermediate appellate
tribunal, we review the District Court's decision as though on initial
appellate review.  See Cole v. Cole, 561 A.2d 1018, 1019 (Me. 1989) (cited
in Terison v. Terison, 600 A.2d 1123, 1124 (Me. 1992)).  The District
Court's findings of fact will be set aside only if they are clearly erroneous,
and its judgment with respect to alimony and division of marital property
will be affirmed unless "the court has violated some positive rule of law or
has reached a result which is plainly and unmistakably an injustice."
Terison, 600 A.2d at 1124. 
	[¶9]  The alimony statute operative during the litigation of this matter
authorized the court at any time to "alter or amend a decree for
alimony . . . when it appears that justice requires it."  19 M.R.S.A. § 721(5)
(Supp. 1995).  Section 721 further required that for any alteration 
or amendment "the court shall consider" the fifteen factors listed in 
section 721(1).{2}  See also Eastman v. Eastman-Veres, 1997 ME 26,
690 A.2d 494, 496 (stating that 19 M.R.S.A. § 721 "provides the factors that
the court must consider when determining whether a modification of
alimony is appropriate.").
	[¶10]  The rule set forth in Bubar has been superseded by the
statutory factors that the court must consider in awarding and modifying
spousal support.  See 19-A M.R.S.A. § 951 (1998).  The fact of remarriage
does not shift the burden to the remarried spouse to justify the continuation
of alimony.  See Schultz v. Dellaire, 678 A.2d 46, 47 (Me. 1996) ("law is well
established that one seeking the modification of an alimony award provided
in a divorce judgment bears the burden of establishing the substantial
change in circumstances justifying the modification").  While a court may
and generally will determine that remarriage represents a substantial
change in circumstances, the trial court must determine whether that
change justifies modification in light of all other relevant facts.  The court
may continue the alimony past remarriage when it deems it just to do 
so.  19 M.R.S.A. § 721(5).
	[¶11]  In the instant case, the District Court found that Adams chose
not to testify and that the record was "silent" as to any hardship the alimony
payments would cause him.  It further accepted Dow's testimony of 
her "serious medical condition present since the divorce" and that 
due to osteoporosis she is able to work less than twenty hours per 
week as a domestic.  Because the court's findings and conclusions show "a 
considered determination" of the statutory factors, Raymond v. Raymond,
447 A.2d 70, 71 (Me. 1982), the court had legal justification to continue the
alimony despite her remarriage.  The order was not "plainly and
unmistakably an injustice."  Terison, 600 A.2d at 1124.

II.

	[¶12]  Adams next argues that laches defeats Dow's claim to
post-remarriage alimony because she waited so long to assert the purported
right, and that it was error for the District Court not to so conclude. 
Adams's claimed prejudice is that if Dow had raised the issue when she
moved to enforce the divorce judgment in 1991, it would have been settled
in 1992, efficiently and probably within the agreed order that resulted from
the motion.
	[¶13]  Laches may be a defense in alimony cases.  Jacobs v. Jacobs,
507 A.2d 596, 601 (Me. 1986) ("alimony decrees are sufficiently equitable
in character to warrant applying equitable principles such as laches to
problems of enforcement") (quoting H. Clark, Law of Domestic Relations
14.10, at 470 (1968)).  Laches may be a valid defense to the demand for
arrearages of alimony, but only if the supporting spouse shows prejudice
caused by the delay.{3}  See Dean v. Dean, 665 So.2d 244, 249 (Fla. App. 1995)
(husband prejudiced by unimpeached testimony of large financial obligations
that he would not have incurred had wife not delayed thirty years to seek
child support arrearages); Shafer v. Wegner, 254 N.W.2d 193, 197-98
(Wis. 1977) (husband prejudiced by delay because a witness died who would
have been critical in wife's arrearage action); Brown v. Brown, 108 So.2d
492 (Fla. App. 1959) (spouse who remarried and acquired children in
reliance upon his wife's eleven years of not seeking alimony was
prejudiced).{4}
	[¶14]  Adams neither articulates nor provides evidence of prejudice
caused by the delay, which is required in order to invoke the doctrine of
laches.  Adams "has not shown that he undertook any obligation that he
would have forsaken" due to Dow's delay in enforcing the obligation.  Carter
v. Carter, 611 A.2d 86, 87 (Me. 1992) (no laches defense available to paying
spouse despite wife's eleven-year delay in seeking child support, because
"court's order merely required him to pay what he had owed for many
years"); Blisset v. Blisset, 526 N.E.2d 125, 129 (Ill. 1988) (husband not
prejudiced by paying lump sum after seven years as opposed to weekly
payments).  Adams's laches argument is unpersuasive.

III.

	[¶15]  Finally, Adams contends that the October 10, 1992 order on
Dow's 1991 motion to enforce for alimony arrearages presented Dow with
the opportunity to protect her right to all future arrearages, but that since
her motion only asked for pre-remarriage arrearages, principles of res
judicata prevent her from raising her 1996 counterclaim to the post-1992
arrearages.
	[¶16]  The subsequent litigation of issues is barred by the claim
preclusion prong of res judicata if: (1) the same parties or their privies are
involved in both actions; (2) a valid and final judgment was entered in the
prior action; and (3) the matters present for decision now were, or might
have been, litigated in the prior action.  See Bezanson v. First Nat'l Bank of
Boston, 633 A.2d 75, 76 (Me. 1993); Machias Savings Bank v. Ramsdell,
1997 ME 20 ¶ 11, 689 A.2d 595, 599 (res judicata includes claim
preclusion and issue preclusion).
	[¶17]  It is true that, theoretically, the matters presented for decision
now might have been litigated in Dow's 1991 motion to enforce the original
divorce decree because the same "cause of action" was before the court in
the prior case.  Currier v. Cyr, 570 A.2d 1205, 1208 (Me. 1990).  The
measure of a "cause of action" is the "aggregate of connected operative facts
that can be handled together conveniently for purposes of trial."  Petit v. Key
Bancshares of Maine, Inc., 635 A.2d 956, 959 (Me. 1993).
	[¶18]  Although the matter could have been "conveniently" litigated
in 1991, Dow had no motivation to request a ruling on post-1992 alimony
because the order provided that "[i]n all other respects, the [original]
Divorce Judgment in this matter . . . shall remain in full force and effect."
Because the decree remained unaltered with respect to the alimony
obligation, Dow had no reason to believe that by waiving her right to
arrearages she would compromise her right to alimony.  Since she had no
reason to litigate the issue of that right in 1991, her current claim is not
precluded by res judicata.
	The entry is:
			Judgment affirmed.
                                                        
Attorney for plaintiff:
Ray R. Pallas, Esq.
425 Main Street
Westbrook, ME 04092

Attorney for defendant:

Nicholas H. Walsh, Esq.
111 Commercial Street
Portland, ME 04101

FOOTNOTES******************************** {1} A case we decided after the litigation of the instant case in the District Court limits the ability of a court to retroactively modify or cancel an alimony arrearage. See Roberts v. Roberts, 697 A.2d 62, 65 (Me. 1997) ("We note that nothing in 19 M.R.S.A. § 721 (Supp. 1996) authorizes modification or cancellation of an alimony arrearage by the retroactive application of a subsequent order."). Adams, however, was not seeking modification of an arrearage, but a ruling that no arrearage has existed since Dow's remarriage. Even if Roberts were controlling it would not bar Adams's motion. {2} Title 19 M.R.S.A. § 721 (Supp. 1995), nearly identically to current 19-A M.R.S.A. § 951 (1998), provided in pertinent part: 1. Factors. The court shall consider the following factors when determining an award of alimony: A. The length of the marriage; B. The ability of each party to pay; C. The age of each party; D. The employment history and employment potential of each party; E. The income history and income potential of each party; F. The education and training of each party; G. The provisions for retirement and health insurance benefits of each party; H. The tax consequences of the division of marital property, including the tax consequences of the sale of the marital home, if applicable; I. The health and disabilities of each party; J. The tax consequences of an alimony award; K. The contributions of either party as homemaker; L. The contributions of either party to the education or earning potential of the other party; M. Economic misconduct by either party resulting in the diminution of marital property or income; N. The standard of living of the parties during the marriage; and O. Any other factors the court considers appropriate. . . . . 5. Modification. The court, at any time, may alter or amend a decree for alimony or specific sum when it appears that justice requires it, except that a court shall not increase the alimony if the original decree prohibits an increase. In making any alteration or amendment, the court shall consider the factors listed in subsection 1. {3} We have said: Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as the parties are in the same condition, it matters little whether one presses a right promptly or slowly . . . . [W]hen, knowing his rights, [the plaintiff] takes no steps to enforce them until the condition of the other party has . . . become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as an estoppel against the assertion of the right. Leathers v. Stewart, 108 Me. 96, 79 A. 16 (1911). {4} See also Annotation, Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support, 5 A.L.R. 4th 1015 (1981 & Supp. 1991); cf. Note, Rebecca Raskin, Fisco v. Department of Human Servs.: The Inequity of Equitable Defenses in Child Support Arrearage Cases, 48 Me. L. Rev. 154 (1996).