JENNIFER A. KILTON
DARIN W. KILTON
April 6, 2016.
briefs and at oral argument: Anthony J. Sineni, III, Esq.,
Law Offices of Anthony J. Sineni, III, LLC, Portland, for
appellant Darin W. Kilton.
Pittman, Esq., Vincent, Kantz, Pittman & Thompson, Portland,
for appellee Jennifer A. Kilton.
SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and
[¶1] Darin W. Kilton appeals from a divorce
judgment entered by the District Court (Portland, Kelly,
J. ) following an uncontested hearing. He alleges
several errors in the trial court procedures, including
insufficient notice of the final hearing, inconsistency
between the parties' signed mediation agreement and the
final judgment, and lack of a recording of the uncontested
divorce hearing. Because all of these issues are raised for
the first time on appeal, without the trial court having had
any opportunity to consider the claimed errors in its
procedures, and because no error of law is apparent on the
face of the judgment, we affirm the judgment.
[¶2] Darin and Jennifer A. Kilton were
married in December 2011. They have no minor children. On
March 13, 2015, Jennifer filed a complaint for divorce. The
parties participated in mediation, see M.R. Civ. P.
92(b), 110B, which resulted in written points of agreement on
a court mediation form that purported to fully resolve the
issues in the divorce. The points of agreement, signed by the
parties, addressed the distribution of a home, several
retirement accounts, debts, several items of personal
property, and two LLCs, and indicated that Jennifer's
attorney would draft a proposed order embodying the
[¶3] An uncontested final hearing on the
divorce was initially scheduled for May 13, 2015. For reasons
that are not clear from the record, the hearing was
rescheduled to May 20, 2015. The record includes a copy of
the notice of the rescheduled hearing date sent to Darin by
Jennifer, and the court, in its judgment, found that such
notice had been provided to Darin.
[¶4] The court held an uncontested final
hearing on May 20, 2015, which Darin did not attend. As
sometimes occurs in such uncontested proceedings, the hearing
was not recorded. The court granted the parties' divorce
the same day, adopting the order drafted by Jennifer's
attorney. Neither party filed any post-judgment motions.
Darin timely filed this appeal, but he initiated no effort,
pursuant to M.R. App. P. 5(d), to create an alternative
record of the unrecorded proceeding.  See
Cates v. Donahue, 2007 ME 38, ¶ 2, 916 A.2d 941.
[¶5] On appeal, Darin bears the burden to
demonstrate error in the trial court's judgment.
See Clark v. Heald, 2009 ME 111, ¶ 2, 983
A.2d 406 (per curiam). Having the burden of persuasion on
appeal, he is responsible for providing us with an adequate
record--including any transcript of the proceedings or an
adequate substitute statement of the evidence--that is
sufficient to permit fair consideration of the issues on
appeal. State v. King, 2015 ME 41, ¶ 4, 114 A.3d
664; State v. Milliken, 2010 ME 1, ¶ 12, 985 A.2d
[¶6] Had Darin pursued appropriate
post-judgment remedies in the trial court to address his
claimed lack of notice of the hearing, or the alleged
inconsistency between the mediated agreement and the final
judgment, or had he sought to invoke M.R. App. P. 5(d) to
create an alternative statement of the evidence, his actions
in the trial court might have generated a record for appeal.
Without such a record, and where no obvious error of law
appears on the face of the judgment, Darin has failed to
carry his burden on appeal. See Clark, 2009
ME 111, ¶ 2, 983 A.2d 406.
[¶7] Responsible appellate review requires
that issues of concern be first addressed to and considered
by the trial court. This prerequisite to appropriate
appellate review is necessary for two reasons. First, it
provides the trial court and other parties notice and
opportunity to correct any perceived error, which may then
avoid the need for an appeal or avoid the result being
vacated or remanded for further proceedings after appeal.
See In re Anthony R., 2010 ME 4, ¶ 8, 987
A.2d 532; State v. Dube, 522 A.2d 904, 908-09 (Me.
1987). Second, it assures that any review on appeal will be
informed by a ruling made in the first instance by " the
judge who saw and heard the witnesses and has the feel of the
case which no appellate printed transcript can impart."
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546
U.S. 394, 401, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006).
[¶8] Because the trial court was given no
opportunity to address the concerns Darin raises for the
first time on appeal, and because there is no record of the
evidence presented to the ...