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Banks v. Leary

Supreme Court of Maine

June 6, 2019

KATHY J. BANKS
v.
PATRICK R. LEARY

          Argued: February 5, 2019

          Roderick H. Potter, Esq. (orally), Law Office of Roderick Potter, Saco, for appellant Patrick R. Leary.

          Brittany M.R. Sawyer, Esq. (orally), Holmes Legal Group, LLC, Wells, for appellee Kathy J. Banks.

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HJELM, J.

         [¶1] Patrick R. Leary appeals from an order issued by the District Court (Biddeford, Moskowitz, J.) modifying certain provisions of the parties' divorce judgment relating to parental rights and responsibilities. Leary contends that the court erred by admitting in evidence a report submitted by the guardian ad litem after the court had excused the GAL from being present during the hearing, which prevented Leary from cross-examining the GAL about her report. Because any judicial error was harmless, we affirm the judgment.

         I. BACKGROUND

         [¶2] Viewed in the light most favorable to the court's judgment, the record supports the following facts. See McBride v. Worth, 2018 ME 54, ¶ 2, 184 A.3d 14.

         [¶3] Leary and Kathy J. Banks, who are the parents of a child, were divorced in July of 2017 pursuant to an agreed-to judgment [Adamson, M.~). Pursuant to the judgment, the parties would both continue to live in the marital residence with their child, and they would have shared parental rights and responsibilities. Subsequently, in the fall of 2017, the child engaged in some conduct that raised significant concerns about his safety. Because of Leary's insensitive and inappropriate reaction to that situation, Banks moved out of the residence, taking the child with her.

         [¶4] By January of 2018, a number of post-judgment motions had been filed, most by Leary. Through some of the motions, each party sought to modify the provisions of the divorce judgment affecting parental rights and responsibilities, including the child's primary residence, rights of parent-child contact, and child support. By agreement, the court [Najahan, M.) issued an expanded-authority order, see M.R.G.A.L. 4(b)(4)(D)(in), appointing a GAL for the minor child. See 19-A M.R.S. § 1507(1) (2018); M.R. Civ. P. 107(a)(2). Among other things, the order required the GAL to "appear at all court events in this matter unless excused by the court." Several months later, on Leary's motion, the court [Foster, /.) amended the appointment order by adding a provision that required the GAL to submit a recommendation regarding a proposed evaluation of the child.

         [¶5] On May 16, 2018, pursuant to the amended appointment, the GAL filed her written report, which summarized interviews she conducted and records she reviewed during her investigation, including the medical and mental health records of the parties and the child. In her report, the GAL recommended that the child live primarily with Banks and that Banks be granted sole decision-making authority regarding some aspects of the child's life. Approximately one week later, the parties filed witness and exhibit lists. Leary did not, in that first filing, identify the GAL report as a prospective exhibit or the GAL as a witness he might call. In an amended witness list, however, he identified the GAL report as a prospective exhibit and generically reserved the right to call any witness included on Banks's list, which did include the GAL.

         [¶6] Two weeks after the GAL filed her report with the court, on May 30, 2018, the court [Moskowitz, J.) held a contested hearing on the pending motions. Both parties appeared; Banks was with counsel, and Leary was unrepresented. The GAL was also present at the beginning of the hearing but requested to be excused. Banks stated that she had no objection, but Leary did object, leading to the following colloquy with the court:

Court: Okay. And what's the objection based upon?
Leary: The objection is as I intend to challenge the guardian ad litem's ...

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