In re Estate of Peters

In re Estate of Peters (99-154 & 99-258); 171 Vt. 381; 769 A.2d 630 

[Filed 20-Oct-2000]
[Motion for Reargument Denied 28-Nov-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                            Nos. 99-154 & 99-258


In re Estate of Cheryl Peters	                 Supreme Court

                                                 On Appeal from
    	                                         Lamoille Superior Court

                                                 June Term, 2000


Alan W. Cook, J. (99-154)
Ben W. Joseph, J. (99-258)

Kurt M. Hughes of Murdoch & Hughes, Burlington, for Plaintiff-Appellee.

Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Defendant Carroll Peters appeals from a Lamoille
  Superior Court jury  verdict for plaintiff in a civil action for a sexual
  battery he allegedly committed against Cheryl  Peters.  Defendant raises
  six arguments on appeal: (1) the action is barred by the statute of 
  limitations; (2) in a tort action for battery between spouses, a finding
  that consent to sexual  intercourse has been withdrawn is a prerequisite to
  liability; (3) the trial court erred by allowing out-of-court statements
  made by Mrs. Peters, the deceased victim, to be admitted; (4) the
  compensatory  damages are excessive; (5) the trial court erred in
  submitting the issue of punitive damages to the  jury without first
  allowing defendant to disclose his lack of wealth; and (6) the trial court
  erred in  awarding attorney's fees without any evidence to support the
  award.  We affirm.

 

       The following evidence was introduced at trial.  Defendant and Cheryl
  Peters were married  on July 13, 1990 and lived together in Hyde Park,
  Vermont.  Mrs. Peters had several children who  were not related to
  defendant.  The Peters began having marital problems, and in January 1993 
  separated.  Mrs. Peters moved in with her daughter, Raemarie Lamare, who
  lived in Morrisville.   Several months later, in the summer of 1993, Mrs.
  Peters rented a house in Morrisville with her  cousin, Richard Fitzgerald. 
  In July of that year, Mrs. Peters quit-claimed her rights to the Hyde Park 
  house.  Defendant filed for divorce on August 4, 1993, and Mrs. Peters
  accepted service of the  divorce papers. 

       On Sunday, August 8, 1993, defendant arrived at Mrs. Peters's
  residence in Morrisville at  approximately 9:00 p.m.  Mrs. Peters was not
  there.  Nicole Deuso, Ms. Peters' daughter, was there.   Ms. Deuso
  testified that she and her boyfriend, Bryant Pierce, asked defendant to
  leave several times,  but that he refused, and remained in the living room
  reading letters and poems he had written for  Mrs. Peters.  Eventually, Ms.
  Deuso turned out the lights in the living room to go to sleep, and 
  defendant went into Mrs. Peters' bedroom.  

       According to Ms. Deuso, Mrs. Peters arrived home that morning at about
  1:30 a.m.,  intoxicated.  Ms. Deuso told her that defendant was in her
  bedroom, so Mrs. Peters went into her  cousin's unoccupied bedroom. 
  Defendant followed Mrs. Peters into the bedroom and then  throughout the
  house as Mrs. Peters attempted to evade him, screaming "[i]t's my house!"  
  Eventually, Mrs. Peters went into her bedroom, and defendant followed. 
  According to Ms. Deuso,  she told him, "[i]f you're going to be here, then
  just shut up and let me get some sleep."  

       The next morning Ms. Deuso heard Mrs. Peters ask defendant what he was
  doing there.  She  saw Mrs. Peters come out of the bedroom in the same
  dress she had worn the night before and go 

 

  into the bathroom to get dressed for work.  Defendant then came out of the
  bedroom in his t-shirt and  underwear.  Mr. Fitzgerald arrived home that
  morning.  He testified that he was surprised to see  defendant there, and
  felt that something was wrong. 

       At approximately 10:00 a.m. on Tuesday morning, August 10th, defendant
  visited Mrs.  Peters' daughter, Ms. Lamare, at her apartment.  Ms. Lamare
  testified that defendant told her that he  "violated [her] mother" when he
  had gone to her house "the other night."  Ms. Lamare recounted that 
  defendant explained that when Mrs. Peters was passed out, he crawled into
  the bed and "made her  accessible to him," and that he "couldn't get it in
  very far, but it was good for him and that he  ejaculated."  Defendant then
  asked Ms. Lamare whether he should call Mrs. Peters at work before  she
  received a letter he had sent to her, confessing to what he had done.  Ms.
  Lamare suggested that  he call Mrs. Peters before she received his letter. 
  Ms. Lamare told defendant that she hoped her  mother "nailed his ass to the
  wall" for what he had done, to which defendant responded, "I'll do 
  anything I can to get away with it."

       Around 1:00 p.m. that same day, Mrs. Peters arrived at Ms. Lamare's
  apartment.  Ms. Lamare  testified that she could tell that something was
  wrong as soon as she saw her mother, and that Mrs.  Peters immediately
  informed her that defendant had called her at work and told her that he had 
  "violated" her.  She stated that Mrs. Peters was "devastated," and cried
  repeatedly, "I can't believe he  raped me" as she rocked back and forth on
  the couch.  Ms. Lamare encouraged her mother to call the  police, but Mrs.
  Peters responded that she "didn't dare" to report the incident.

       The next day, Mrs. Peters returned to Ms. Lamare's house with
  defendant's letter in which he  confessed to the assault.  The letter
  states, "I took advantage of you without your permission - sorry . . . ." 
  The letter, which was admitted into evidence and read into the record by
  Ms. Lamare, 

 

  graphically described the incident and defendant's explanation for his
  conduct.  In the weeks that  followed, defendant continually called and
  sent letters to Mrs. Peters.  Ms. Lamare testified that her  mother was
  frightened and hurt, and that her foremost concern "was to go where she
  couldn't be  found."

       Linda Briggs, Mrs. Peters' co-worker, testified that she had a
  conversation with Mrs. Peters  "on a day in August of 1993," but did not
  specify the date.  She noticed Mrs. Peters was upset and  acting
  differently, and that her emotional state interfered with her work.  When
  Ms. Briggs asked  Mrs. Peters what was wrong, she responded that defendant
  "broke into [her] house the other night  and raped [her]."

       Mrs. Peters's cousin and roommate, Mr. Fitzgerald, testified that he
  met Mrs. Peters at the  V.F.W. club to find out what had been bothering her
  when he saw her at their house on the morning  at issue.  She told Mr.
  Fitzgerald that defendant had raped her "the other morning."  She stated
  that  she did not want to get the police involved because she was scared,
  and that she was going to move  out of town.  Mr. Fitzgerald testified that
  Mrs. Peters was scared as she discussed this with him.   However, he could
  not recall whether this conversation occurred on the evening of the
  early-morning  assault or on the evening immediately after.

       A few weeks later, Mrs. Peters went to the home of another of her
  daughters, Tina Teale, to  borrow a truck for her move to Montpelier the
  following week.  Ms. Teale testified that her mother  was visibly upset and
  told Tina that defendant had raped her.  Mrs. Peters showed Ms. Teale 
  defendant's confession letter.

       Mrs. Peters died on September 2, 1993, as a result of an unsolved
  homicide in the Morrisville  home she shared with Mr. Fitzgerald.  On June
  10, 1996, Mrs. Peters' five children and her estate 

 

  filed a complaint against defendant alleging wrongful death, sexual assault
  and battery.  Defendant  filed an answer and affirmative defenses on July
  10, 1996.  On July 31, 1996, defendant filed a  motion to dismiss for
  failure to state a claim, arguing that the wrongful death claim was barred
  by the  statute of limitations, and that the sexual assault and battery
  claim did not allege a tort recognized by  Vermont common or statutory law. 
  The trial court dismissed the wrongful death claim because it  was
  time-barred, but denied defendant's motion to dismiss the assault and
  battery claim.  The estate  was the only remaining plaintiff. 

       A three-day jury trial began on November 23, 1998.  The
  above-mentioned witnesses  testified, and several letters written by
  defendant, including the confession letter, were entered into  evidence. 
  Defendant's sole witness was a urologist whose testimony was limited to
  defendant's  sexual capabilities.  At the close of plaintiff's case,
  defendant moved for a directed verdict.  In  denying defendant's motion,
  the court stated, "I think the evidence is overwhelming, and this jury, if 
  it believes the witnesses, would be well justified in finding that there
  was involuntary sexual  intercourse, and that that amounted to a battery. .
  . ."

       After the charge conference and at the close of both parties'
  evidence, the court gave the jury  instructions.  Defendant objected to the
  charge on punitive damages, arguing that the trial should  have been
  bifurcated on this issue because defendant had not been given an
  opportunity to present  his financial status.  The court denied the
  objection, noting that defendant had not raised this issue at  the charge
  conference, and that defendant was absent from a majority of the trial. 
  After  deliberations, the jury returned a verdict for plaintiff of $125,000
  in compensatory damages and  $480,000 in punitive damages.  Defendant moved
  for judgment notwithstanding the verdict and for a  new trial.  The court
  denied the motion and entered judgment on the verdict.  This appeal
  followed.

 

                                     I.

       Defendant first argues that plaintiff's battery claim is barred
  because it was not brought  within the two-year statute of limitations for
  survival actions.  See 12 V.S.A. § 557(a).  Plaintiff  implicitly concedes
  the applicability of the limitation, but contends that the statute of
  limitations has  been waived in this case by defendant's failure to assert
  it.  We agree that defendant has not  preserved a statute of limitations
  defense to plaintiff's battery claim.

       Letters of administration memorializing Mrs. Peters' death were issued
  on September 10,  1993.  Plaintiff's complaint alleging that defendant
  "committed a sexual assault and battery" on  decedent (Count I), and did
  "willfully, deliberately and with premeditation kill . . . decedent" (Count 
  II), was filed on June 10, 1996.  Defendant filed a motion to dismiss,
  asserting that Count II should  be dismissed because of plaintiff's failure
  to bring an action for wrongful death within two years, as  required by 14
  V.S.A. § 1492(a).  Notably, defendant made no assertion that Count I was
  barred by  12 V.S.A. § 557(a) nor any other limitation, but argued instead
  that Count I "[did] not allege a tort  recognized by the common or
  statutory law of the State of Vermont."  Defendant's subsequent  memorandum
  of law in support of his motion to dismiss reiterated at length his
  argument that Count  II  was barred by § 1492(a), but again failed to
  assert any statute of limitations defense to Count I.  The trial court
  dismissed Count II, concluding that it was barred by § 1492(a). (FN1) 
  Defendant's  motion to dismiss Count I on the grounds that the facts
  alleged did not state a cause of action was  denied.

       "[I]n Vermont, a statute of limitations is an affirmative defense that
  provides repose for a  prospective defendant, and its expiration does not
  affect a court's jurisdiction to hear the case."  

 

  Hixson v. Plump, 167 Vt. 202, 206, 704 A.2d 1159, 1162 (1997).  The primary
  purpose of a  limitations period is fairness to a defendant.  See id.
  (citing Duffy v. Horton Mem. Hosp., 488 N.E.2d 820, 822 (N.Y. 1985)). 
  Failure to plead statute of limitations as an affirmative defense in an 
  answer or appropriate motion means that it is waived.  See id. (citing In
  re Augenblick, 488 N.E.2d 109, 110 (N.Y. 1985); V.R.C.P. 8(c)). 
  Defendant's contention on appeal that he asserted the statute  of
  limitations in his answer, and requested the trial court to dismiss both
  counts on the basis of a  statute of limitations defense, is not supported
  by the record.  Although defendant included "[s]tatute  of [l]imitations"
  in a list of seven "affirmative defenses" set forth in his answer, the
  statute he now  relies upon, 12 V.S.A. § 557(a), was never asserted below. 
  The bare assertion of an intention to raise  the statute of limitations is
  insufficient to preserve the defense where, as here, defendant failed to 
  identify either the statute of limitations upon which he relied or the
  Count to which it applied.

                                     II.
  
       Defendant next argues that consent to sexual contact must be presumed
  in a tort action for  sexual battery between spouses.  To support this
  assertion, defendant cites arcane common law  upholding the implied consent
  by a married woman to sexual intercourse.  Defendant contends that  courts
  have rejected implied marital consent as a defense to rape only in those
  cases where a  separation decree has been issued, or where violence or
  force was used to achieve sexual contact.  
	
       We reject entirely the notion that marriage creates any kind of
  implied "blanket consent to  sexual contact."  The distinction between
  marital and nonmarital criminal rape is based on archaic  "common law
  doctrines that a woman was the property of her husband."  People v.
  Liberta, 474 N.E.2d 567, 573 (N.Y. 1984).  "A married woman has the same
  right to control her own body as 

 

  does an unmarried woman."  Id. at 164.

       Defendant's recommendation that we adopt a bar to any civil action for
  sexual battery  between spouses who are not under a separation order,
  unless the withdrawal of consent prior to the  sexual contact is "clear and
  unambiguous," is without basis in the law.  Marital status makes no 
  difference under Vermont's criminal provision for sexual assault.  See 13
  V.S.A. § 3252. (FN2)  In  fact, § 3252 was specifically amended in 1985 to
  remove the exemption for those who commit  sexual assaults against their
  spouses, see 1985, No. 83, § 2, and now expressly prohibits the  compulsion
  of another person to engage in a sexual act without the other person's
  consent, regardless  of the marital status between the parties.  See id. at
  § 3252(a)(1)(A), (a)(3).  

       Moreover, defendant's arguments that his proposed rule prevents
  governmental intrusion into  marital privacy and promotes reconciliation of
  the spouses are unpersuasive.  As the court stated in  Liberta:

    [T]here is no rational relation between allowing a husband to
    forcibly  rape his wife and these interests.  The marital
    exemption simply does  not further marital privacy because this
    right of privacy protects  consensual acts, not violent sexual
    assaults.  Just as a husband cannot  invoke a right of marital
    privacy to escape liability for beating his  wife, he cannot
    justifiably rape his wife under the guise of a right to  privacy.

  Liberta, 474 N.E.2d  at 574.  Defendant's reconciliation rationale is
  similarly flawed.  In this case,  there is extensive evidence indicating
  that Mrs. Peters continually rejected defendant's attempts at 
  reconciliation:  she quit-claimed her rights on the Hyde Park home, signed
  the divorce papers when  they were served, entered into a relationship with
  another person, and made plans to move to another 

 

  town.  

       The jury reasonably concluded that plaintiff proved intentional
  battery. (FN3)  "A bodily  contact is offensive if it offends a reasonable
  sense of personal dignity."  Restatement (Second) of  Torts § 19 (1965);
  see also Rogers v. Bigelow, 90 Vt. 41, 46, 96 A. 417, 419 (1916) ("It is
  very  generally held that in actions for intentional wrongs, such as
  trespass for assault and battery, damages  are recoverable for mental
  suffering consisting in a sense of insult, indignity, humiliation or injury
  to  the feelings.").  In the instant case, the testimony of Ms. Lamare, Mr.
  Fitzgerald, Ms. Briggs, and Ms.  Teale presented significant evidence to
  the jury that Mrs. Peters was greatly upset by the sexual  battery. 
  Defendant's statement in his letter that he "took advantage" of Mrs. Peters
  "without [her]  permission," constitutes significant evidence to support
  the jury's verdict on the battery claim.  The  evidence of bodily contact
  inflicted upon Mrs. Peters without her consent is more than sufficient to 
  offend a reasonable sense of personal dignity.  See Restatement (Second) of
  Torts § 18 cmt. d, illus.  2 (1965) ("A kisses B while asleep but does not
  waken or harm her.  A is subject to liability to B.").   We will not
  disturb the jury's verdict that Mrs. Peters suffered such injury.

                                    III.

       Defendant next contends-without specifically identifying the
  statements to which he objects  or indeed, the witnesses who made them-that
  the admission of testimony violated the prohibition  against hearsay under
  V.R.E. 802.  Defendant's blanket claim of error asserts that the trial
  court 

 

  abused its discretion in admitting testimony of Mrs. Peters' reaction to
  learning of the battery. (FN4) 

                       1.  Testimony of Mr. Fitzgerald

       At the outset, we agree with the trial court's observation that
  defendant failed to object to the  hearsay testimony of Mr. Fitzgerald. 
  Defendant raised hearsay objections during the testimony of  Ms. Briggs and
  Ms. Lamare, but did not do so when Mr. Fitzgerald testified following these
  two  witnesses.  Defendant argues that his "continuing objection" to all
  hearsay statements introduced by  plaintiff's witnesses regarding Mrs.
  Peters' reaction to learning of the sexual battery preserved his  claim of
  error regarding Mr. Fitzgerald's testimony.  We disagree.

       In order to preserve a claim of error in the introduction of evidence,
  the party opposing the  introduction must make "a timely objection or
  motion to strike."  V.R.E. 103(a)(1).  This means that  "[t]he objection
  must have been made at the time the evidence was offered or the question
  was  asked."  State v. Fisher, 167 Vt. 36, 43, 702 A.2d 41, 45 (1997). 
  Ordinarily it must be made when  the grounds become apparent.  1 K.S. Broun
  et al., McCormick on Evidence § 52, at 200-01 (J.W.  Strong ed., 4th ed.
  1992).  Neither V.R.C.P. 46, nor relevant case law on the necessity of
  subsequent  objections to the same legal concern, can be reasonably
  construed to allow a continuing objection as  open ended as defendant seeks
  here.  An objection must be entered, at the very least, each time a new 
  witness testifies, even if the objection is on the same grounds as a
  continuing objection to the  testimony of a prior witness or witnesses. 
  The purpose of requiring a timely objection is to bring the 

 

  error to the attention of the trial court so that the court may have "an
  opportunity to rule."  State v.  Chambers, 144 Vt. 234, 242, 477 A.2d 110,
  114 (1984).  Where the aggrieved party fails to make a  "specific
  objection, including a clear statement of the matter to which he objects
  and the grounds of  the objection" at trial, the issue is not preserved for
  consideration on appeal.  Deyo v. Kinley, 152 Vt.  196, 200, 565 A.2d 1286,
  1289 (1989) (quoting State v. Lettieri, 149 Vt. 340, 342, 543 A.2d 683, 
  685 (1988)).  Defendant did not meet his burden to note his "specific
  objection" to Mr. Fitzgerald's  testimony.  See id.

                 2.  Testimony of Ms. Lamare and Ms. Briggs


       With respect to the testimony of Ms. Lamare and Ms. Briggs, defendant
  contends the trial  court erred in admitting hearsay statements of Mrs.
  Peters under the "excited utterance" exception to  the hearsay rule.  See
  V.R.E. 803(2).  Defendant contends that the "excited utterance" exception
  to  the hearsay rule must be construed to relate only to the "underlying"
  startling event or condition.   Defendant reasons that because the admitted
  hearsay statements were uttered upon learning of the  battery, rather than
  upon the event of the battery, the declarant could not, as a matter of law,
  be  "under the stress of excitement caused by the event or condition."  Id.

       The "excited utterance" exception to the hearsay rule under V.R.E.
  803(2) is characterized  by: "A statement relating to a startling event or
  condition made while the declarant was under the  stress of excitement
  caused by the event or condition."  There are two essential requirements
  for the  excited utterance exception: (1) a startling event or condition,
  and (2) a spontaneous utterance in  reaction to the event or condition made
  under the stress of excitement and not as a result of reflective  thought. 
  See State v. Solomon, 144 Vt. 269, 272, 476 A.2d 122, 124 (1984).  The
  underlying  rationale for the exception lies in the assumption that a
  person's powers of reflection and fabrication 

 

  will be suspended when she is subject to the excitement of a startling
  event, and any utterances she  makes will be spontaneous and trustworthy. 
  See id.; State v. Ayers, 148 Vt. 421, 424, 535 A.2d 330,  332 (1987). 

       We have previously rejected the argument that a declarant's excited
  utterance under V.R.E.  803(2) must be contemporaneous with a sexual
  assault.  See State v. Shaw, 149 Vt. 275, 281, 542 A.2d 1106, 109 (1988)
  ("contemporaneousness with the exciting event is not required for
  statements  to be admissible as excited utterances"); State v. Longe, 133
  Vt. 624, 626, 349 A.2d 232, 234 (1975)  ("modern legal thinking is that the
  term 'contemporaneous' is not used in a completely restrictive  sense, but
  rather in a broadly descriptive one").  In Shaw, we noted "the key
  consideration is the  condition of the declarant."  Shaw, 149 Vt. at 281,
  542 A.2d  at 1109.  "Rule 803(2), relies [for  trustworthiness] on the
  exciting quality of the event.  The statement must thus have been made
  while  the declarant's state of excitement continued, on the theory that
  his mental condition prevents  fabrication."  Reporter's Notes, V.R.E. 803.

       The relevant inquiry is whether Ms. Peters' statements were made while
  she was in a "highly  excited, agitated state" sufficient to suspend her
  powers of reflection and fabrication.  Shaw, 149 Vt.  at 281, 542 A.2d  at
  1109.  Ms. Lamare's testimony established that there was, at most, a
  three-hour  gap between the time defendant called Mrs. Peters to inform her
  that he had violated her, and the  time Mrs. Peters arrived at her
  daughter's apartment.  Ms. Lamare's testimony that Mrs. Peters was  visibly
  upset, crying and rocking back and forth as she repeatedly said "I can't
  believe he raped me,"  supports the trial court's determination that the
  declarant was under the influence of the startling  event.  See Ayers, 148
  Vt. at 424, 535 A.2d  at 332 (trial courts have "wide discretion" to
  determine  whether declarant was under the influence of the excited event). 
  See also United States v. Napier, 

 

  518 F.2d 316, 317-18 (9th Cir. 1975) (admitting exclamation "He killed me,
  he killed me!" by  kidnap victim hospitalized for seven weeks with head
  injuries, upon seeing newspaper picture of  defendant for first time one
  week after returning home); State v. Moats, 457 N.W.2d 299, 309-10  (Wis.
  1990) (admitting testimony offered by mother of five-year-old assault
  victim who learned  about sexual assault on daughter one week afterward). 
  Accordingly, Ms. Lamare's testimony  regarding her exchange with Ms. Peters
  on August 10th was properly admitted.

       Ms. Lamare's testimony that, in the weeks that followed, Mrs. Peters
  told her that she was  frightened by defendant and wanted to get away from
  him, was not admissible under the excited  utterance exception.  Although
  she was understandably still upset from learning of the battery, this 
  conversation was too remote to fall within the exception.  Similarly, Ms.
  Briggs's testimony that   Mrs. Peters told her on a day in August 1993 that
  defendant had raped her "the other night" should  not have been admitted
  under 803(2). (FN5)

       Although portions of Ms. Lamare's testimony, as well as the testimony
  of Ms. Briggs, were  not admissible under the excited utterance exception,
  the trial court's error was harmless.  See  V.R.C.P. 61; Imported Car
  Center, Inc. v. Billings, 163 Vt. 76, 83, 653 A.2d 765, 770 (1994).  Given 
  the overwhelming, admissible evidence produced from witnesses Ms. Lamare,
  Mr. Fitzgerald and  Ms. Teale, in addition to the critical fact that
  defendant admitted in writing to "[taking] advantage" of  Mrs. Peters
  without her consent, the admission of the erroneous portion of Ms. Lamare's
  and Ms.  Briggs' testimony did not affect the substantial rights of
  defendant nor cause manifest injustice.  See 

 

  Imported Car Center, 163 Vt. at 83, 653 A.2d  at 770; State v. Weller, 162
  Vt. 79, 84, 644 A.2d 839,  842 (1994). 

                                     IV.

       Defendant next argues that the jury's award of $125,000 in
  compensatory damages for the  sexual battery is grossly excessive.  "In
  evaluating this claim, we must consider the evidence in the  light most
  favorable to the damages found by the jury and uphold the verdict if there
  was evidence  reasonably supporting it."  Winey v. William E. Dailey, Inc.,
  161 Vt. 129, 144, 636 A.2d 744, 753  (1993) (citation omitted).  "To
  overturn a jury award, an appellant must demonstrate that the verdict  was
  "entirely excessive."  Turgeon v. Schneider, 150 Vt. 268, 272, 553 A.2d 548, 551 (1988)  (internal quotations omitted).

       Plaintiff sued defendant for battery to recover damages suffered by
  Mrs. Peters stemming  from harmful and offensive bodily contact.  Mrs.
  Peters' condition, as described by witnesses who  testified regarding her
  reaction to learning of defendant's assault, constitutes the type of injury
  for  which damages are recoverable in a sexual battery action.  There was
  ample evidence for the jury to  reasonably conclude that Mrs. Peters'
  estate was entitled to damages for her "mental suffering  consisting in a
  sense of insult, indignity, humiliation or injury to the feelings." 
  Rogers, 90 Vt. at 46,  96 A.  at 419.

       Defendant argues that the award's excessiveness is demonstrated simply
  by dividing  $125,000 by the number of days before Mrs. Peters' death,
  which amounts to $7000 per day.  We  hesitate to attempt to place a per
  diem monetary value on a person's sense of dignity, as damages for  such an
  injury are not capable of precise calculation.  See Imported Car Center,
  Inc., 163 Vt. at 82,  653 A.2d  at 770 (court will not interfere with an
  award of damages where exact computation is 

 

  impossible).  Calculating damages is the jury's duty, and considering Mrs.
  Peters' humiliation and  emotional suffering, the size of the verdict alone
  does not show that the award was "entirely  excessive."  See Turgeon, 150
  Vt. at 272, 553 A.2d  at 551; Lewis v. Gagne, 123 Vt. 217, 221, 185 A.2d 468, 470-71 (1962) (trial court did not abuse its discretion denying motion
  to set aside verdict  based on its size).  Accordingly, the court properly
  denied defendant's motion to set aside or reduce  the damage award.

                                     V.

       Defendant next argues that the trial court erred in submitting the
  issue of punitive damages to  the jury without providing defendant an
  opportunity to disclose his lack of wealth.  He claims that  "[d]uring
  pre-trial proceedings, the court specifically postponed disclosure of
  defendant's wealth until  the jury returned a verdict for compensatory
  damages,"  and that, relying upon that ruling, he  presented no evidence
  regarding his wealth during the trial.  Following the court's instructions
  to the  jury, defendant raised an objection to the charge on punitive
  damages arguing that the trial should  have been bifurcated on this issue
  because defendant had not been given an opportunity to present  his
  financial status.  The court noted that defendant did not raise his
  objection at the charge  conference and was absent from a majority of the
  trial, and ruled that defendant's objection to the  issue had been waived. 
  We agree.  

       The record contains no order stating that a bifurcated trial was to
  take place after a verdict for  plaintiff on compensatory damages. (FN6) 
  Furthermore, we note that we have never held that proof 

 

  of a defendant's actual means or wealth is essential to the recovery of
  punitive damages.  In Parker v.  Hoefer, 118 Vt. 1, 20-21, 100 A.2d 434,
  447 (1953), we stated that a defendant's "ability to pay is a  proper
  element for consideration, but . . . proof of actual means is [not]
  essential to the recovery of  exemplary damages.  No Vermont case has been
  called to our attention that so holds."  This Court  has not altered its
  position on this issue since Parker, and we decline to do so now.  See Lent
  v.  Huntoon, 143 Vt. 539, 550, 470 A.2d 1162, 1170 (1983) ("Where exemplary
  damages are awardable  . . . the defendant's pecuniary ability may be
  considered in order to determine what would be a just  punishment for
  him.") (quoting Kidder v. Bacon, 74 Vt. 263, 274, 52 A. 322, 324 (1902)); 
  Annotation, View that Evidence of Defendant's Wealth is a Relevant Factor
  to be Considered-In  General, 87 A.L.R. 4th 166, 177 (1991) (including
  Vermont among the states in which "evidence of  the defendant's financial
  circumstances, although not mandatory, is a relevant factor to be
  considered  when assessing the amount of punitive damages").	

                                     VI.
 
       Defendant's final argument is that the court erred in awarding
  attorney fees of $650.00 to  plaintiff without any evidence to support the
  award.  The court ordered these fees to cover, among  other things, travel
  time to and from Hyde Park, and the legal research, dictation and
  preparation  time required to oppose defendant's motion to dissolve,
  modify, and discharge issuance of a trustee  process on defendant's
  corporation.  "When an award of attorney's fees is not supported by the 
  evidence, it cannot stand, unless the award is not large and can be
  calculated in light of a court's  experience and knowledge."  Hodgeman v.
  Jard Co., 157 Vt. 461, 466, 599 A.2d 1371, 1374 (1991)  (emphasis added)
  (citations omitted).  The amount awarded here was not as large, either in 
  proportion to the damage award or in total amount, as those we have allowed
  in other cases.  See id. 

 

  at 463, 599 A.2d  at 1372 (twenty percent of award, up to $3,000); Gokey v.
  Bessette, 154 Vt. 560,  567, 580 A.2d 488, 493 (1990) ($700 in fees on
  award of $5000).  The court did not abuse its  discretion in awarding the
  fees.   

       Affirmed.



 	                               FOR THE COURT:


                                       _______________________________________
                                       Chief Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  The trial court rejected plaintiff's contention that a 1996 amendment
  to § 1492 extending,  under certain circumstances, the statute of
  limitations for wrongful death claims to seven years  should be applied
  retroactively.  The trial court's decision was not appealed.

FN2.  Section 3252(a)(3) excepts from the sexual assault provisions
  consensual sexual acts  between married persons where one is under the age
  of 16. 

FN3.  Although plaintiff's complaint alleged both assault and battery, the
  court charged only on  battery, and instructed the jury that in order to
  find defendant liable, plaintiff had to demonstrate that  Mrs. Peters did
  not consent to the offensive contact. 

FN4.  Defendant's brief states only that the defendant "objected to the
  hearsay statements of Mrs.  Peters as recounted by her daughter, her cousin
  and her co-worker."  Defendant, as we note below,  failed to preserve his
  claim of error as to Mr. Fitzgerald, the decedent's cousin.  Two of the 
  decedent's daughters, Ms. Lamare and Ms. Teale, testified, as did Mrs.
  Peters' co-worker, Ms.  Briggs.  Defendant failed to object specifically on
  hearsay grounds to the testimony of Ms. Teale.   Defendant's claim of error
  on appeal as to hearsay statements of Mrs. Peters "as recounted by her 
  daughter" presumably refers to the testimony of Ms. Lamare.

FN5.  Appellee contends that this testimony, if inadmissible under the
  excited utterance  exception, is admissible under the V.R.E. 803(3) hearsay
  exception as a statement of declarant's then  existing mental, emotional or
  physical condition.  It is unnecessary to reach this issue in light of our 
  determination that admission of the testimony was harmless.

FN6.  Defendant asserts that the trial court issued a "ruling" during
  pre-trial proceedings to  bifurcate the trial to allow him to present
  evidence in order to limit punitive damages.  It appears,  however, that
  the order to which defendant refers was merely a prospective statement from
  the bench  which took place at discovery, over one year before trial, and
  issued from a judge different from the  one who presided at trial.