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Guardianship of Ard

Supreme Court of Maine

January 19, 2017


          Argued: October 25, 2016

         Reporter of Decisions

          Susan C. Thiem, Esq. (orally), Law Office of Susan C. Thiem, Esq., Lincolnville, appellant pro se and for appellant Nicole Tucker

          Roger L. Hurley, Esq. (orally), Camden, for appellee Serena Ard.


          HJELM, J.

         [¶l] In 2012, the Waldo County Probate Court [Longley, J.) appointed Nicole Tucker as the guardian of her niece, Isabella Ard, who is now five years old, and awarded Isabella's paternal grandmother, Serena Ard, rights of contact with the child. In 2015 and 2016, Tucker and Ard[1] filed a series of motions relating to the terms of the guardianship and Ard's contact rights. After hearing, the court denied the motions. Additionally, on a motion filed by Ard, the court found Tucker's attorney, Susan Thiem, in contempt and sanctioned her. Both Tucker and Attorney Thiem appeal the judgment. We affirm the order denying Tucker's motion but vacate the contempt finding and order of sanctions against Attorney Thiem.

         I. BACKGROUND

         [¶2] This case stems from an ongoing conflict between relatives of Isabella regarding who should be the child's guardian due to her parents' inability to care for her. Shortly after Isabella was born in June 2011, Tucker, her maternal aunt, filed a petition to be appointed Isabella's guardian, to which the parents agreed. Ard initially contested the petition but ultimately also consented to it. The resulting order, issued in May 2012, appointed Tucker as Isabella's full guardian and granted Ard specified rights of contact with the child.[2] The court appointed Attorney Thiem to represent Tucker in February 2013, when several motions relating to the guardianship were pending and subsequently adjudicated.[3]

         [¶3] In April 2015, Ard filed a motion seeking to increase her contact with Isabella, and in May 2015, Ard filed a motion for the court to hold Tucker in contempt based on an allegation that Tucker was not permitting her to see Isabella. Three months later, Tucker moved to terminate Ard's contact rights until counselors at a family treatment facility determined whether such contact was in Isabella's best interest following an allegation that Isabella had been assaulted by another child during a visit with Ard.

         [¶4] The court began a hearing on those motions on September 8, 2015. A transcript of that hearing date has not been included in the record on appeal. The hearing was not completed that day, and the court scheduled it to resume on October 27. On October 19, Tucker filed a motion pro se to continue the hearing on the ground that Attorney Thiem had told her that the Probate Court judge was biased against Attorney Thiem, and thus that it would not be in Tucker's interest for that representation to continue. The court rescheduled the hearing for November 24, 2015. Attorney Thiem then filed a motion to withdraw as Tucker's counsel on October 27.

         [¶5] The court addressed the motion to withdraw at the November 24 hearing, where Ard's attorney argued that Attorney Thiem should be ordered to pay Ard's attorney fees for time spent preparing for the hearing. The court treated this as an oral motion for sanctions and granted Attorney Thiem time to respond in writing. The hearing proceeded, with Attorney Thiem continuing to represent Tucker despite the pending withdrawal motion. At the hearing, Tucker testified that she knew her decision to prevent subsequent contact between Isabella and Ard violated the court's order, but she nonetheless sought to suspend the contact pending an investigation into the assault allegation.

         [¶6] Several days later, on December 1, Ard filed a "motion for attorney fees" of $7, 764, later corrected to $7, 964. In the written motion, Ard stated that she was withdrawing the oral motion for attorney fees against Attorney Thiem but was seeking attorney fees from Tucker under Rule 66, based on Tucker's testimony that she had prevented Ard from having contact with Isabella in violation of the court order. See M.R. Civ. P. 66. Through Attorney Thiem, Tucker objected to the motion, arguing in part that the motion seeking sanctions should be denied because it did not comply with the Rule 66 procedure for contempt motions.

         [¶7] Having not yet issued a final decision on the pending motions relating to Ard's rights of contact, the court issued three "interim orders" in December 2015, and January and February 2016, setting out specific contact schedules between Ard and Isabella. Ard filed motions in January and February 2016 "for hearing [and] additional sanctions" and for "an immediate hearing for additional sanctions" against Tucker for her alleged contempt of court. The court held a hearing on those motions on February 11. Attorney Thiem was absent due to a scheduling conflict, but Tucker was present and ...

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