KATHY J. BANKS
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.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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.
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.
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.
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.
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.
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 ...