Tanya J. McMahon v. Christopher P. McMahon

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 11
Docket: And-18-74
Submitted
On Briefs: September 26, 2018
Decided: January 24, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM and HUMPHREY, JJ.
Concurrence/
Dissent: ALEXANDER, J.


TANYA J. MCMAHON

v.

CHRISTOPHER P. MCMAHON


JABAR, J.

[¶1] Christopher P. McMahon appeals from a judgment of the District

Court (Lewiston, Ende, J.) denying his motion for contempt and granting Tanya

J. McMahon’s motion to modify a 2010 divorce judgment and the court’s order

(Sparaco, D.C.J.)1 denying his motion to alter or amend the judgment and

1 A judge may not “entertain a motion to alter or amend the judgment, decree or order of another

judge of the same court except in extraordinary circumstances such as in the case of the decreeing
judge’s death, resignation, sickness or other disability.” In re C.P., 2016 ME 18, ¶¶ 24-25,
132 A.3d 174 (alterations omitted) (quotation marks omitted); see also Burrow v. Burrow,
2014 ME 111, ¶ 26, 100 A.3d 1104. Here, the judge who issued the judgment on the motion for
contempt and motion for modification retired shortly afterward and was not available to act on the
post-judgment motions. The successor judge reviewed the entirety of the record and determined
that the record was sufficient for the court to address Christopher’s post-judgment motions. See
In re C.P, 2016 ME 18, ¶ 28, 132 A.3d 174.
2

granting in part his motion for additional findings of fact and conclusions of law.

See M.R. Civ. P. 52(b), 59(e).

[¶2] Christopher argues that the court committed error and abused its

discretion by (1) denying his motion for contempt, (2) failing to implement a

partial mediation agreement, (3) ordering him to pay attorney and guardian

ad litem fees, (4) denying a deviation from the child support guidelines, and

(5) imposing conditions on his visitation rights. Discerning no error or abuse

of discretion in the court’s actions, we affirm the judgment.

I. BACKGROUND

[¶3] The following facts, all of which are supported by competent

evidence, were found by the court. Because Christopher moved for additional

findings of fact pursuant to M.R. Civ. P. 52(b), we do not infer any findings, and

consider only the findings and conclusions explicitly rendered by the court. See

Ehret v. Ehret, 2016 ME 43, ¶ 9, 135 A.3d 101

[¶4] Christopher and Tanya McMahon, parents of three children now

ranging from eleven to eighteen years of age, were divorced through a 2010

judgment entered by the District Court (Ende, J.). The judgment conferred both

shared parental rights and shared primary residence for all three children.
3

Christopher moved to Connecticut in early 2012, but neither party sought to

amend the divorce judgment.

[¶5] Over the next few years, Christopher’s relationship with his two

eldest children began to deteriorate, in part because of conflicts between the

children and his new wife. In 2016, the youngest child expressed a wish to try

school in Connecticut, and Tanya and Christopher began to discuss the

possibility of making the move happen. To this end, Christopher sent a written

agreement to Tanya stating that the child would remain with him in

Connecticut for the entire school year. Tanya added additional language stating

that the child could move back to Maine without hesitation if the child so

desired, and sent a signed copy back to Christopher. Christopher neither read

nor replied to Tanya’s version of the agreement, and no further discussions

took place. The child moved to Connecticut later that year.

[¶6] While the youngest child was in Maine for the holidays in late 2016,

Tanya sent a letter to Christopher stating that their “temporary arrangement”

had been rescinded, and that the child would remain in Maine. Concurrently,

Tanya filed a motion to modify the 2010 divorce judgment, seeking to provide

the sole primary residence for the three children and a recalculation of child

support. In response, Christopher filed a motion for contempt, alleging that
4

Tanya breached the 2010 divorce judgment by relocating the residence of the

youngest child without thirty days’ notice. Both parties attended mediation in

May 2017, which culminated in a partial agreement.

[¶7] The court held a hearing on the parties’ motions a half day at a time

on three days in late August and early September. Following the hearings, the

court granted Tanya’s motion to modify the divorce judgment, giving her the

right to provide the sole primary residence for all three children. The court

denied Christopher’s motion for contempt. The court (Sparaco, D.C.J.) denied

Christopher’s subsequent motion to alter or amend and granted in part his

motion for additional findings of fact and conclusions of law. Christopher

timely appealed. See 14 M.R.S. § 1901 (2017); 19-A M.R.S. § 104 (2017);

M.R. App. P. 2B(c).

II. DISCUSSION

A. Motion for Contempt

[¶8] Christopher first argues that the court erred and abused its

discretion by denying his motion for contempt. We review the findings of fact

“that form a basis for [the] court’s decision regarding civil contempt for clear

error.” Lewin v. Skehan, 2012 ME 31, ¶ 18, 39 A.3d 58. The court’s finding is

“clearly erroneous when there is no competent evidence in the record to
5

support it.” Id. If review of the factual findings reveals no clear error, the court’s

decision is reviewed for an abuse of discretion. Id.

[¶9] “For a court to find a party in contempt, the complaining party must

establish by clear and convincing evidence that the alleged contemnor failed or

refused to comply with a court order and presently has the ability to comply

with that order.” Efstathiou v. Efstathiou, 2009 ME 107, ¶ 11, 982 A.2d 339.

Further, the “court order must inform the person in definite terms what duties

the order imposes upon him.” Lewin, 2012 ME 31, ¶ 19, 39 A.3d 58.

[¶10] Here, Christopher moved to Connecticut following the issuance of

the original divorce judgment, making compliance with its shared residence

provision all but impossible. Neither party sought to alter that judgment, and

the parties’ informal agreement about the youngest child’s move to Connecticut

in 2016 was not an enforceable order. See Fisco v. Dep’t of Human Servs.,

659 A.2d 274, 275 (Me. 1995) (holding that reliance on an informal agreement

between parties as to child support “is unreasonable and unjustifiable” because

it frustrates the power of the court); Ashley v. State, 642 A.2d 176, 176

(Me. 1994) (same). Accordingly, the court found that both parties shared the

responsibility for the sequence of events that transpired; that there was no

court order that specified the youngest child’s primary residence in light of the
6

changed circumstances; and therefore, that there was no court order that could

have been violated. Because competent evidence in the record supports that

determination, it was not an abuse of discretion for the court to deny

Christopher’s motion for contempt.

B. Mediated Agreement

[¶11] Christopher next argues that the court erred when it failed to

implement provisions of a mediated partial agreement between him and Tanya

regarding his summer contact with their youngest child. Contrary to

Christopher’s assertion, “[a] family matter agreement does not become an

order of the court until it is presented to and approved by the court.” Cloutier

v. Cloutier, 2003 ME 4, ¶ 8, 814 A.2d 979. Although “in the normal course, the

court should honor an agreement reached by the parties,” it may, “acting within

its discretion, conclude[] that there is a basis for setting aside an agreement that

has not been incorporated in a court order.” Id. ¶¶ 9-10. Among other bases,

the court may consider “what [effect] the enforcement or setting aside of the

agreement would have on the best interests of the children.” Id. ¶ 11.

[¶12] The mediated agreement was created three months prior to the

final hearing, and during that time, the guardian ad litem expressed her opinion

that she did not believe the agreement was in the best interest of the youngest
7

child. It was well within the court’s discretion to examine the mediated

agreement in order to determine if it was in the child’s best interest and to

ultimately find that it was not. See id.

C. Attorney and Guardian ad Litem Fees

[¶13] Finally, Christopher contends that it was error for the court to

order him to pay a portion of Tanya’s attorney fees and to apportion more than

half of the guardian ad litem fees to him. Christopher argues that the court

erred by finding that he was able to afford such payments. We review the

award and apportionment of attorney and guardian ad litem fees for an abuse

of discretion. See McBride v. Worth, 2018 ME 54, ¶ 20, 184 A.3d 14; Akers v.

Akers, 2012 ME 75, ¶ 10, 44 A.3d 311.

[¶14] In making its determination, the court found that Christopher

made almost twice as much as Tanya and thus was better able to absorb the

cost of litigation. See 19-A M.R.S. § 1507(7)(A), (E) (2017). The court’s finding

is based firmly on the financial affidavits that both parties provided to the court.

Although Christopher has attempted to introduce new evidence on appeal of an

allegedly lower income, we do not “consider new facts, new exhibits or other

material relating to the merits of the appeal that was not presented to the trial

court and included in the trial court record.” Beane v. Me. Ins. Guar. Ass’n,
8

2005 ME 104, ¶ 9, 880 A.2d 284. In relying on the financial information

available to it, the court did not abuse its discretion.

[¶15] Although concurring in all other respects, the dissent would

conclude that the court erred by straying from the maximum fee and equal

sharing arrangement contemplated in the orders appointing the guardian

ad litem. Dissenting Opinion ¶ 21. It is important to note, however, that other

than Christopher’s argument on appeal that he could not afford the payments,

he did not raise any issues surrounding the guardian ad litem fees.

[¶16] In Teel v. Colson, we said

The general rule governing proper appellate procedure is that a
party who seeks to raise an issue for the first time at the appellate
level is held, in legal effect, to have “waived” the issue insofar as he
utilizes it to attack a judgment already entered and from which an
appeal is taken; therefore, appellate review will be denied to such
question.

396 A.2d 529, 533 (Me. 1979) (quoting Reville v. Reville, 289 A.2d 695, 697

(Me. 1972)). To that point, we further stated that

Specifically, proper appellate practice will not allow a party to shift
his ground on appeal and come up with new theories after being
unsuccessful on the theory presented in the trial court. It is a well
settled universal rule of appellate procedure that a case will not be
reviewed by an appellate court on a theory different from that on
which it was tried in the court below.

Id. at 534.
9

[¶17] In this case, the appellant did not challenge the total amount of the

guardian ad litem’s fees at trial and is not raising any issue regarding the final

amount of the guardian ad litem’s fees in this appeal. Nonetheless, the dissent

sua sponte raises the issue. Dissenting Opinion ¶¶ 24-43. Moreover, at the

conclusion of the hearing, Christopher’s attorney noted that he had reviewed

the bill and there was “really no objection [he could] make to it.” Although it is

not clear which guardian ad litem bill was being discussed, the record

establishes that the guardian submitted an affidavit regarding her fees on

September 11, 2017, and the court acted well within its discretion in

considering Christopher’s litigation strategy and choices as increasing the time

required of the guardian ad litem.

[¶18] In his motion for additional findings and conclusions, Christopher

did not question the guardian’s total fees as being over the initial cap, nor did

he question the uneven allocation. Finally, on this appeal, other than claiming

that he could not afford the attorney and guardian ad litem fees, Christopher

has not raised the issue of the guardian’s fees being over the initially authorized

amount allowed or the uneven allocation of the payment of the guardian’s bill.

Although we do not disagree with the principle addressed by the dissent

regarding the need for clarity of orders setting the amounts and expectations
10

of guardian ad litem fees, that issue has not been raised in this appeal.

Accordingly, we deem the issue waived. See id. at 533-34.

D. Christopher’s Remaining Arguments

[¶19] Christopher’s remaining arguments are also unpersuasive. It was

well within the court’s discretion to determine that the several weeks the

youngest child spends in his father’s care during the summer was an

insufficient basis to deviate from the child support guidelines.2 See Wong v.

Hawk, 2012 ME 125, ¶ 17, 55 A.3d 425 (stating that we review the “decision not

to deviate from the child support guidelines for an abuse of discretion”).

[¶20] Similarly, it was not an abuse of discretion for the court to

determine, based on previous interactions between the two eldest children and

Christopher’s new wife, that it was in the best interests of the children to

impose a condition on Christopher’s visitation with them that the stepmother

not be present. See Jackson v. MacLeod, 2014 ME 110, ¶ 23, 100 A.3d 484

2 Christopher also argues that he is entitled to a deviation from the child support guidelines

because of the increased cost of transportation related to his contact with the children because of his
newly reduced income. See 19-M.R.S. § 2007(3)(P) (2017). Neither this argument nor evidence of
increased costs of transportation and reduced income were presented to the trial court, and they are
not part of the record on appeal. See Beane v. Me. Ins. Guar. Ass’n, 2005 ME 104, ¶ 9, 880 A.2d 284.
As a result, we do not address this issue. See Foster v. Oral Surgery Assocs., P.A., 2008 ME 21, ¶ 22,
940 A.2d 1102 (“An issue raised for the first time on appeal is not properly preserved for appellate
review.”).
11

(“We review a trial court’s decision on a motion to modify a divorce judgment

for an abuse of discretion or errors of law.”).

The entry is:

Judgment affirmed.

ALEXANDER, J., concurring in part and dissenting in part.

[¶21] I concur in those portions of the Court’s opinion affirming the trial

court’s determinations regarding parent/child contact, child support, and the

allocation of attorney fees. I respectfully dissent from that portion of the

Court’s opinion affirming the trial court’s disregard of the payment caps and

equal allocation of payment responsibility for guardian ad litem fees, which

were specified in previously agreed-to orders and acknowledged at the hearing.

[¶22] The development of practice in the Family Division over the past

two decades has seen increasing numbers of guardian ad litem appointments,

usually by magistrates, sometimes by judges, to evaluate families and provide

advice to the parties and the court as to resolutions that might serve the best

interests of the children involved. In early practice, most guardian ad litem

appointment orders included only vague and general guidance as to the tasks
12

the guardians ad litem were to perform and set no caps on the fees guardians

ad litem might charge for their services.

[¶23] These open-ended orders led to significant abuses, with some

guardians ad litem performing tasks unanticipated by the parties and/or

seeking payment for fees that sometimes were well beyond parties’ ability to

pay. These abuses, particularly to middle-income litigants, were documented

in our opinions in Douglas v. Douglas, 2012 ME 67, ¶¶ 10-12, 19-28,

43 A.3d 965, and Desmond v. Desmond, 2011 ME 57, ¶ 7, 17 A.3d 1234.

Following those opinions, the courts adopted form guardian ad litem

appointment orders, such as were approved in this case, that (1) required

consideration of parties’ ability to pay, (2) specified the rates to be charged,

(3) set strict caps on payment and hours to be worked, and (4) allocated

payment responsibility between the parties. These orders were supported by

rules, adopted in 2015, that confirmed the importance of the fee limitations and

payment responsibility allocations set in the form guardian ad litem

appointment orders. Maine Rules for Guardians Ad Litem (Tower, 2018).

[¶24] Here, the guardian ad litem claimed to have worked hours and

sought payment for fees far in excess of the caps set in the appointment orders.
13

The history of the guardian ad litem’s appointment, the payment cap, and the

fee sharing arrangement is addressed below.

[¶25] After the competing post-judgment motions at issue in this appeal

had been filed, the court entered several orders reflected in the docket entries.

One of those orders, entered February 2, 2017 (Ham-Thompson, M.), was an

expanded appointment order for a guardian ad litem. See M.R.G.A.L. 4(a)(3)

and 4(b)(4)(D)(iii)(a). Maine Rule for Guardians Ad Litem 4(b)(4)(A) requires

that such an appointment order “specify the guardian ad litem’s length of

appointment; duties, including the filing of a written report . . . ; and fee

arrangements, including hourly rates, timing of payments to be made by the

parties, and the maximum amount of fees that may be charged for the case

without further order of the court.”

[¶26] The February 2 order, entered on the standard court guardian

ad litem appointment form, complied with M.R.G.A.L. 4(b)(4)(A). The order

specified a $120 hourly rate for the guardian ad litem, a 20-hour cap on the

guardian ad litem’s work, and a maximum amount of fees to be charged of

$2,400. The order required that each party pay half of the fees—$1,200. The

order also specified that the guardian ad litem would not be expected to travel

to Connecticut, where Christopher McMahon resided.
14

[¶27] Three months later, on May 1, 2017, the court (Mulhern, J.), again

utilizing the standard court form, amended the original guardian ad litem

appointment order particularly to authorize the guardian ad litem to travel to

Connecticut. The order recognized that the guardian ad litem’s travel time to

and from Connecticut would be compensated at a rate of $50 per hour;

extended the cap on the guardian ad litem’s hours by ten hours; and expanded

the payment obligation for the guardian ad litem’s fees by $1,000 for each party.

As a result of these amendments, each party’s specified total payment

obligation became $2,200, with the total fees to be paid to the guardian ad litem

to be “no more than” $4,400.

[¶28] The case file includes a brief order of the court (Ende, J.) purporting

to amend the May 1 guardian ad litem appointment order to remove the

Connecticut travel authorization and to direct the guardian ad litem to call one

of the children in Connecticut twice before August 1, 2017. That order, dated

August 31, 2017, also included a notation by the court (Ende, J.) dated

September 1, 2017, stating, “vacated as moot when signed.” Neither the

August 31 amendment order nor the September 1 order vacating the August 31

order as moot is reflected anywhere in the docket entries.
15

[¶29] September 1, 2017, was the last day of the court’s hearing on the

various motions. At that hearing, the court, the guardian ad litem, and the

parties discussed payments due the guardian ad litem. The guardian ad litem

noted that she had not traveled to Connecticut as anticipated by the May 1

amended appointment order. The guardian ad litem then said that “the day one

bill goes through last Friday.” Whatever document was referenced was not

marked as an exhibit. The guardian ad litem then referenced the appointment

orders: “I think that they were of $2,400 total with the parties each paying half.

No, 4,800 total, right, because they were each 24, is that right?”

[¶30] After the guardian ad litem expressed confusion as to the amounts

authorized in the appointment orders, Christopher McMahon’s counsel offered,

“I can make this probably simple. . . . I’ve reviewed the bill. And there’s really

no objection I can make to it.” The payment cap in the final appointment order

was $4,400, not $4,800 as referenced by the guardian ad litem.

[¶31] The transcript includes no suggestion by the guardian ad litem that

she was seeking payments in excess of the payment cap set in the May 1 order,

no justification offered for payments in excess of the cap, and an express

acknowledgement by the guardian ad litem that the parties are “each paying

half.” The September 1 on-the-record discussion certainly could not have
16

referenced the guardian ad litem’s bill submitted to the court around

September 11, 2017, as the Court’s opinion suggests. Court’s Opinion ¶ 17.

[¶32] Following discussion of the amount due, the court, apparently not

having referenced the appointment orders or heard the guardian ad litem’s

“each paying half” testimony, asked, “is there an agreement as to how to split

it?” Counsel for Tanya McMahon then observed, “It is—I think—is subject to

reallocation, isn’t it?” After the court asked, “Do the parties intend to be subject

to reallocation?” counsel for Christopher McMahon observed, “I don’t

remember. I’ll just let the order speak for itself.” Counsel’s statement indicated

his view that the agreed-to order providing for the equal sharing of costs

remained in effect. The guardian ad litem then observed that “mom has paid

more” and that “I’d like to get paid . . . I’m willing to talk to the parties about

this, what’s owed.” Counsel for Christopher McMahon then responded, “So we

understand. An additional submission may be made.”

[¶33] No additional filings or submissions are referenced in the docket

entries, and no other actions or amendments to the guardian ad litem

appointment orders appear in the file prior to the court’s November 13, 2017,

order that is the subject of this appeal. Thus, as of the time the court rendered

its decision, the outstanding and effective guardian ad litem appointment
17

orders, pursuant to M.R.G.A.L. 4(b)(4)(A), specified a maximum fee that may be

charged without further order of the court of $4,400 and specified that each

party pay a total of $2,200 toward the guardian ad litem fees.

[¶34] Disregarding the governing guardian ad litem appointment orders,

the court’s final order authorized total payments to the guardian ad litem of

$7,974.71, nearly $3,600 in excess of the final spending cap set in accordance

with the Rule 4(b)(4)(A) and more than triple the $2,400 spending cap agreed

to before the amendment that contemplated the travel to Connecticut that

ultimately did not occur. The final order directed Christopher McMahon to pay

the guardian ad litem over $3,400 in addition to the $1,700 that the court

recognized that Christopher McMahon had already paid to the guardian

ad litem. That final order effectively set aside the agreement for equal sharing

of costs in the original guardian ad litem appointment orders and required that

Christopher McMahon pay approximately $2,900 more than the cap of $2,200

on his payments set in the May 1, 2017, amended order.

[¶35] Neither the court’s findings nor the record contains any

justification for the guardian ad litem to perform work in excess of the thirty

hours specified in the guardian ad litem appointment orders or to charge fees

in excess of the total of $4,400 authorized in the amended guardian ad litem
18

appointment order. In fact, because the guardian ad litem did not travel to

Connecticut, as contemplated by the May 1, 2017, amended order, there is a

serious question as to whether there was authority to exceed the $2,400 cap set

in the original guardian ad litem appointment order before the change

authorizing travel to Connecticut. However, for purposes of this opinion, we

can assume that the hours cap of thirty hours and the fees cap of $4,400 govern

the work authorized and payments that can be approved for the guardian ad

litem. At the hearing, Christopher McMahon’s counsel acknowledged and

agreed to the $4,400 or $4,800 payment obligation with “each paying half.”

[¶36] Without providing the parties with notice or an opportunity to be

heard, or any findings justifying its actions, the final court order disregarded

the earlier orders setting limits on the work authorized and payments to the

guardian ad litem. The final order, in effect, signified a return to the abusive,

open-ended guardian ad litem fee-setting practices that prevailed prior to the

Douglas and Desmond opinions and the reforms that followed those opinions.

[¶37] The Court’s opinion, addressing the issues on appeal, states that

“Christopher contends that it was error for the court to order him to pay a

portion of Tanya’s attorney fees and to apportion more than half of the guardian

ad litem fees to him. Christopher argues that the court erred by finding that he
19

was able to afford such payments.” Court’s Opinion ¶ 13. Despite recognizing

that the guardian ad litem’s excessive fee request was not submitted until ten

days after trial, the Court supports its decision by asserting that “the appellant

did not challenge the total amount of the guardian ad litem’s fees at trial and is

not raising any issue regarding the final amount of the guardian ad litem’s fees

in this appeal. Nonetheless, the dissent sua sponte raises the issue.” Court’s

Opinion ¶ 17.

[¶38] Christopher McMahon is unrepresented in this appeal. During the

hearing, McMahon’s then-counsel and the guardian ad litem recognized the

continuing existence of the $4,400 or $4,800 payment cap and the continuing

validity of the agreed equal fee-sharing arrangement. The concern in this

opinion is the trial court’s sua sponte act, without any on-the-record request

from the guardian ad litem and without specific findings supporting its

unilateral action, altering the fee cap and fee sharing arrangement

acknowledged by the guardian ad litem at hearing.

[¶39] Christopher McMahon sufficiently preserved for appeal his

objections to the payment mandate in his appeal documents by generally

objecting to the guardian ad litem’s payment mandate, when the general
20

objection is combined with his then-counsel’s and the guardian’s statements on

the last day of the hearing.

[¶40] Even if the appeal filing and the on-the-record statements are

viewed as insufficient to preserve objections to the disregard of the negotiated

cap and equal sharing agreement, the trial court’s disregard of the orders

setting payment caps and specifying the fee sharing arrangement, without

providing the parties with notice and an opportunity to be heard, constitutes

obvious error.

[¶41] We have held that for us to vacate a judgment based on the obvious

error standard of review, “there must be (1) an error, (2) that is plain, and

(3) that affects substantial rights”; if those conditions are met, we have

indicated that we will exercise our discretion to notice an unpreserved error if

we also conclude that (4) the error seriously affects the fairness and integrity

or public reputation of the judicial proceedings. State v. Fahnley, 2015 ME 82,

¶ 15, 119 A.3d 727; accord Truman v. Browne, 2001 ME 182, ¶ 12, 788 A.2d 168;

Morey v. Stratton, 2000 ME 147, ¶¶ 10 & n.3, 11, 756 A.2d 496; Scott v. Lipman

& Katz, P.A., 648 A.2d 969, 974-75 (Me. 1994) (applying obvious error review

in civil cases).
21

[¶42] The trial court’s disregard of the previously agreed to and court

approved payment caps and fee sharing arrangement, requiring Christopher

McMahon to pay more than double his agreed-to commitment without advance

notice and opportunity to be heard and without findings justifying rejection of

the prior agreed to orders, meets our criteria to vacate due to obvious error.

With the past problems that had afflicted guardian ad litem fee-setting and

collection practices, problems that the Court had adopted orders and rules to

correct, the trial court should not have allowed the guardian ad litem to invite

it to return to the past, discredited fee assessment and collection practices.

[¶43] I would vacate the portion of the trial court’s judgment regarding

approval of guardian ad litem fees and imposition of payment obligations on

Christopher McMahon and remand with direction that the guardian ad litem

appointment order’s limitation on payments of $4,400 with equal sharing of

payment obligation by the parties be enforced. With this change, Christopher

McMahon would be obligated to pay $500 in addition to the $1,700 that the final

order recognized he had already paid toward the guardian ad litem fees.

22

Christopher P. McMahon, appellant pro se

Sarah C. Mitchell, Esq., and Amy Dieterich, Esq., Skelton Taintor & Abbott,
Auburn, for appellee Tanya J. McMahon


Lewiston District Court docket number FM-2009-782
FOR CLERK REFERENCE ONLY

Concurrence/Dissent: ALEXANDER, J.

JABAR, J.

[¶1] Christopher P. McMahon appeals from a judgment of the District Court (Lewiston,

Ende, J.

) denying his motion for contempt and granting Tanya J. McMahon's motion to modify a 2010 divorce judgment and the court's order
(

Sparaco, D.C.J.

)

1

denying his motion to alter or amend the judgment and granting in part his motion for additional findings of fact and conclusions of law.

See

M.R. Civ. P. 52(b), 59(e).

[¶2] Christopher argues that the court committed error and abused its discretion by (1) denying his motion for contempt, (2) failing to implement a partial mediation agreement, (3) ordering him to pay attorney and guardian ad litem fees, (4) denying a deviation from the child support guidelines, and (5) imposing conditions on his visitation rights. Discerning no error or abuse of discretion in the court's actions, we affirm the judgment.

I. BACKGROUND

[¶3] The following facts, all of which are supported by competent evidence, were found by the court. Because Christopher moved for additional findings of fact pursuant to M.R. Civ. P. 52(b), we do not infer any findings, and consider only the findings and conclusions explicitly rendered by the court.

See

Ehret v. Ehret

,

2016 ME 43

, ¶ 9,

135 A.3d 101

.

[¶4] Christopher and Tanya McMahon, parents of three children now ranging from eleven to eighteen years of age, were divorced through a 2010 judgment entered by the District Court (

Ende, J.

). The judgment conferred both shared parental rights and shared primary residence for all three children. Christopher moved to Connecticut in early 2012, but neither party sought to amend the divorce judgment.

[¶5] Over the next few years, Christopher's relationship with his two eldest children began to deteriorate, in part because of conflicts between the children and his new wife. In 2016, the youngest child expressed a wish to try school in Connecticut, and Tanya and Christopher began to discuss the possibility of making the move happen. To this end, Christopher sent a written agreement to Tanya stating that the child would remain with him in Connecticut for the entire school year. Tanya added additional language stating that the child could move back to Maine without hesitation if the child so desired, and sent a signed copy back to Christopher. Christopher neither read nor replied to Tanya's version of the agreement, and no further discussions took place. The child moved to Connecticut later that year.

[¶6] While the youngest child was in Maine for the holidays in late 2016, Tanya sent a letter to Christopher stating that their "temporary arrangement" had been rescinded, and that the child would remain in Maine. Concurrently, Tanya filed a motion to modify the 2010 divorce judgment, seeking to provide the sole primary residence for the three children and a recalculation of child support. In response, Christopher filed a motion for contempt, alleging that Tanya breached the 2010 divorce judgment by relocating the residence of the youngest child without thirty days' notice. Both parties attended mediation in May 2017, which culminated in a partial agreement.

[¶7] The court held a hearing on the parties' motions a half day at a time on three days in late August and early September. Following the hearings, the court granted Tanya's motion to modify the divorce judgment, giving her the right to provide the sole primary residence for all three children. The court denied Christopher's motion for contempt. The court (

Sparaco, D.C.J.

) denied Christopher's subsequent motion to alter or amend and granted in part his motion for additional findings of fact and conclusions of law. Christopher timely appealed.

See

14 M.R.S. § 1901 (2017) ; 19-A M.R.S. § 104 (2017) ; M.R. App. P. 2B(c).

II. DISCUSSION

A. Motion for Contempt

[¶8] Christopher first argues that the court erred and abused its discretion by denying his motion for contempt. We review the findings of fact "that form a basis for [the] court's decision regarding civil contempt for clear error."

Lewin v. Skehan

,

2012 ME 31

, ¶ 18,

39 A.3d 58

. The court's finding is "clearly erroneous when there is no competent evidence in the record to support it."

Id.

If review of the factual findings reveals no clear error, the court's decision is reviewed for an abuse of discretion.

Id.

[¶9] "For a court to find a party in contempt, the complaining party must establish by clear and convincing evidence that the alleged contemnor failed or refused to comply with a court order and presently has the ability to comply with that order."

Efstathiou v. Efstathiou

,

2009 ME 107

, ¶ 11,

982 A.2d 339

. Further, the "court order must inform the person in definite terms what duties the order imposes upon him."

Lewin

,

2012 ME 31

, ¶ 19,

39 A.3d 58

.

[¶10] Here, Christopher moved to Connecticut following the issuance of the original divorce judgment, making compliance with its shared residence provision all but impossible. Neither party sought to alter that judgment, and the parties' informal agreement about the youngest child's move to Connecticut in 2016 was not an enforceable order.

See

Fisco v. Dep't of Human Servs.

,

659 A.2d 274

, 275 (Me. 1995) (holding that reliance on an informal agreement between parties as to child support "is unreasonable and unjustifiable" because it frustrates the power of the court);

Ashley v. State

,

642 A.2d 176

, 176 (Me. 1994) (same). Accordingly, the court found that both parties shared the responsibility for the sequence of events that transpired; that there was no court order that specified the youngest child's primary residence in light of the changed circumstances; and therefore, that there was no court order that could have been violated. Because competent evidence in the record supports that determination, it was not an abuse of discretion for the court to deny Christopher's motion for contempt.

B. Mediated Agreement

[¶11] Christopher next argues that the court erred when it failed to implement provisions of a mediated partial agreement between him and Tanya regarding his summer contact with their youngest child. Contrary to Christopher's assertion, "[a] family matter agreement does not become an order of the court until it is presented to and approved by the court."

Cloutier v. Cloutier

,

2003 ME 4

, ¶ 8,

814 A.2d 979

. Although "in the normal course, the court should honor an agreement reached by the parties," it may, "acting within its discretion, conclude[ ] that there is a basis for setting aside an agreement that has not been incorporated in a court order."

Id.

¶¶ 9-10. Among other bases, the court may consider "what [effect]

the enforcement or setting aside of the agreement would have on the best interests of the children."

Id.

¶ 11.

[¶12] The mediated agreement was created three months prior to the final hearing, and during that time, the guardian ad litem expressed her opinion that she did not believe the agreement was in the best interest of the youngest child. It was well within the court's discretion to examine the mediated agreement in order to determine if it was in the child's best interest and to ultimately find that it was not.

See id.

C. Attorney and Guardian ad Litem Fees

[¶13] Finally, Christopher contends that it was error for the court to order him to pay a portion of Tanya's attorney fees and to apportion more than half of the guardian ad litem fees to him. Christopher argues that the court erred by finding that he was able to afford such payments. We review the award and apportionment of attorney and guardian ad litem fees for an abuse of discretion.

See

McBride v. Worth

,

2018 ME 54

, ¶ 20,

184 A.3d 14

;

Akers v. Akers

,

2012 ME 75

, ¶ 10,

44 A.3d 311

.

[¶14] In making its determination, the court found that Christopher made almost twice as much as Tanya and thus was better able to absorb the cost of litigation.

See

19-A M.R.S. § 1507(7)(A), (E) (2017). The court's finding is based firmly on the financial affidavits that both parties provided to the court. Although Christopher has attempted to introduce new evidence on appeal of an allegedly lower income, we do not "consider new facts, new exhibits or other material relating to the merits of the appeal that was not presented to the trial court and included in the trial court record."

Beane v. Me. Ins. Guar. Ass'n

,

2005 ME 104

, ¶ 9,

880 A.2d 284

. In relying on the financial information available to it, the court did not abuse its discretion.

[¶15] Although concurring in all other respects, the dissent would conclude that the court erred by straying from the maximum fee and equal sharing arrangement contemplated in the orders appointing the guardian ad litem. Dissenting Opinion ¶ 21. It is important to note, however, that other than Christopher's argument on appeal that he could not afford the payments, he did not raise any issues surrounding the guardian ad litem fees.

[¶16] In

Teel v. Colson

, we said

The general rule governing proper appellate procedure is that a party who seeks to raise an issue for the first time at the appellate level is held, in legal effect, to have "waived" the issue insofar as he utilizes it to attack a judgment already entered and from which an appeal is taken; therefore, appellate review will be denied to such question.

396 A.2d 529

, 533 (Me. 1979) (quoting

Reville v. Reville

,

289 A.2d 695

, 697 (Me. 1972) ). To that point, we further stated that

Specifically, proper appellate practice will not allow a party to shift his ground on appeal and come up with new theories after being unsuccessful on the theory presented in the trial court. It is a well settled universal rule of appellate procedure that a case will not be reviewed by an appellate court on a theory different from that on which it was tried in the court below.

Id.

at 534.

[¶17] In this case, the appellant did not challenge the total amount of the guardian ad litem's fees at trial and is not raising any issue regarding the final amount of the guardian ad litem's fees in this appeal. Nonetheless, the dissent

sua sponte

raises the issue. Dissenting Opinion ¶¶ 24-43.

Moreover, at the conclusion of the hearing, Christopher's attorney noted that he had reviewed the bill and there was "really no objection [he could] make to it." Although it is not clear which guardian ad litem bill was being discussed, the record establishes that the guardian submitted an affidavit regarding her fees on September 11, 2017, and the court acted well within its discretion in considering Christopher's litigation strategy and choices as increasing the time required of the guardian ad litem.

[¶18] In his motion for additional findings and conclusions, Christopher did not question the guardian's total fees as being over the initial cap, nor did he question the uneven allocation. Finally, on this appeal, other than claiming that he could not afford the attorney and guardian ad litem fees, Christopher has not raised the issue of the guardian's fees being over the initially authorized amount allowed or the uneven allocation of the payment of the guardian's bill. Although we do not disagree with the principle addressed by the dissent regarding the need for clarity of orders setting the amounts and expectations of guardian ad litem fees, that issue has not been raised in this appeal. Accordingly, we deem the issue waived.

See

id.

at 533-34.

D. Christopher's Remaining Arguments

[¶19] Christopher's remaining arguments are also unpersuasive. It was well within the court's discretion to determine that the several weeks the youngest child spends in his father's care during the summer was an insufficient basis to deviate from the child support guidelines.

2

See

Wong v. Hawk

,

2012 ME 125

, ¶ 17,

55 A.3d 425

(stating that we review the "decision not to deviate from the child support guidelines for an abuse of discretion").

[¶20] Similarly, it was not an abuse of discretion for the court to determine, based on previous interactions between the two eldest children and Christopher's new wife, that it was in the best interests of the children to impose a condition on Christopher's visitation with them that the stepmother not be present.

See

Jackson v. MacLeod

,

2014 ME 110

, ¶ 23,

100 A.3d 484

("We review a trial court's decision on a motion to modify a divorce judgment for an abuse of discretion or errors of law.").

The entry is:

Judgment affirmed.

A judge may not "entertain a motion to alter or amend the judgment, decree or order of another judge of the same court except in extraordinary circumstances such as in the case of the decreeing judge's death, resignation, sickness or other disability."

In re C.P.

,

2016 ME 18

, ¶¶ 24-25,

132 A.3d 174

(alterations omitted) (quotation marks omitted);

see also

Burrow v. Burrow

,

2014 ME 111

, ¶ 26,

100 A.3d 1104

. Here, the judge who issued the judgment on the motion for contempt and motion for modification retired shortly afterward and was not available to act on the post-judgment motions. The successor judge reviewed the entirety of the record and determined that the record was sufficient for the court to address Christopher's post-judgment motions.

See

In re C.P.

,

2016 ME 18

, ¶ 28,

132 A.3d 174

.

Christopher also argues that he is entitled to a deviation from the child support guidelines because of the increased cost of transportation related to his contact with the children because of his newly reduced income.

See

19-M.R.S. § 2007(3)(P) (2017). Neither this argument nor evidence of increased costs of transportation and reduced income were presented to the trial court, and they are not part of the record on appeal.

See

Beane v. Me. Ins. Guar. Ass'n

,

2005 ME 104

, ¶ 9,

880 A.2d 284

. As a result, we do not address this issue.

See

Foster v. Oral Surgery Assocs., P.A.

,

2008 ME 21

, ¶ 22,

940 A.2d 1102

("An issue raised for the first time on appeal is not properly preserved for appellate review.").

ALEXANDER, J., concurring in part and dissenting in part.

[¶21] I concur in those portions of the Court's opinion affirming the trial court's determinations regarding parent/child contact, child support, and the allocation of attorney fees. I respectfully dissent from that portion of the Court's opinion affirming the trial court's disregard of the payment caps and equal allocation of payment responsibility for guardian ad litem fees, which were specified in previously agreed-to
orders and acknowledged at the hearing.

[¶22] The development of practice in the Family Division over the past two decades has seen increasing numbers of guardian ad litem appointments, usually by magistrates, sometimes by judges, to evaluate families and provide advice to the parties and the court as to resolutions that might serve the best interests of the children involved. In early practice, most guardian ad litem appointment orders included only vague and general guidance as to the tasks the guardians ad litem were to perform and set no caps on the fees guardians ad litem might charge for their services.

[¶23] These open-ended orders led to significant abuses, with some guardians ad litem performing tasks unanticipated by the parties and/or seeking payment for fees that sometimes were well beyond parties' ability to pay. These abuses, particularly to middle-income litigants, were documented in our opinions in

Douglas v. Douglas

,

2012 ME 67

, ¶¶ 10-12, 19-28,

43 A.3d 965

, and

Desmond v. Desmond

,

2011 ME 57

, ¶ 7,

17 A.3d 1234

. Following those opinions, the courts adopted form guardian ad litem appointment orders, such as were approved in this case, that (1) required consideration of parties' ability to pay, (2) specified the rates to be charged, (3) set strict caps on payment and hours to be worked, and (4) allocated payment responsibility between the parties. These orders were supported by rules, adopted in 2015, that confirmed the importance of the fee limitations and payment responsibility allocations set in the form guardian ad litem appointment orders. Maine Rules for Guardians Ad Litem (Tower, 2018).

[¶24] Here, the guardian ad litem claimed to have worked hours and sought payment for fees far in excess of the caps set in the appointment orders. The history of the guardian ad litem's appointment, the payment cap, and the fee sharing arrangement is addressed below.

[¶25] After the competing post-judgment motions at issue in this appeal had been filed, the court entered several orders reflected in the docket entries. One of those orders, entered February 2, 2017 (

Ham-Thompson, M.

), was an expanded appointment order for a guardian ad litem.

See

M.R.G.A.L. 4(a)(3) and 4(b)(4)(D)(iii)(a). Maine Rule for Guardians Ad Litem 4(b)(4)(A) requires that such an appointment order "specify the guardian ad litem's length of appointment; duties, including the filing of a written report ...; and fee arrangements, including hourly rates, timing of payments to be made by the parties, and the maximum amount of fees that may be charged for the case without further order of the court."

[¶26] The February 2 order, entered on the standard court guardian ad litem appointment form, complied with M.R.G.A.L. 4(b)(4)(A). The order specified a $120 hourly rate for the guardian ad litem, a 20-hour cap on the guardian ad litem's work, and a maximum amount of fees to be charged of $2,400. The order required that each party pay half of the fees-$1,200. The order also specified that the guardian ad litem would not be expected to travel to Connecticut, where Christopher McMahon resided.

[¶27] Three months later, on May 1, 2017, the court (

Mulhern, J.

), again utilizing the standard court form, amended the original guardian ad litem appointment order particularly to authorize the guardian ad litem to travel to Connecticut. The order recognized that the guardian ad litem's travel time to and from Connecticut would be compensated at a rate of $50 per hour; extended the cap on the guardian ad litem's hours by ten hours; and expanded the payment obligation for the guardian ad litem's fees by $1,000 for each party. As a
result of these amendments, each party's specified total payment obligation became $2,200, with the total fees to be paid to the guardian ad litem to be "no more than" $4,400.

[¶28] The case file includes a brief order of the court (

Ende, J.

) purporting to amend the May 1 guardian ad litem appointment order to remove the Connecticut travel authorization and to direct the guardian ad litem to call one of the children in Connecticut twice before August 1, 2017. That order, dated August 31, 2017, also included a notation by the court (

Ende, J.

) dated September 1, 2017, stating, "vacated as moot when signed." Neither the August 31 amendment order nor the September 1 order vacating the August 31 order as moot is reflected anywhere in the docket entries.

[¶29] September 1, 2017, was the last day of the court's hearing on the various motions. At that hearing, the court, the guardian ad litem, and the parties discussed payments due the guardian ad litem. The guardian ad litem noted that she had not traveled to Connecticut as anticipated by the May 1 amended appointment order. The guardian ad litem then said that "the day one bill goes through last Friday." Whatever document was referenced was not marked as an exhibit. The guardian ad litem then referenced the appointment orders: "I think that they were of $2,400 total with the parties each paying half. No, 4,800 total, right, because they were each 24, is that right?"

[¶30] After the guardian ad litem expressed confusion as to the amounts authorized in the appointment orders, Christopher McMahon's counsel offered, "I can make this probably simple.... I've reviewed the bill. And there's really no objection I can make to it." The payment cap in the final appointment order was $4,400, not $4,800 as referenced by the guardian ad litem.

[¶31] The transcript includes no suggestion by the guardian ad litem that she was seeking payments in excess of the payment cap set in the May 1 order, no justification offered for payments in excess of the cap, and an express acknowledgement by the guardian ad litem that the parties are "each paying half." The September 1 on-the-record discussion certainly could not have referenced the guardian ad litem's bill submitted to the court around September 11, 2017, as the Court's opinion suggests. Court's Opinion ¶ 17.

[¶32] Following discussion of the amount due, the court, apparently not having referenced the appointment orders or heard the guardian ad litem's "each paying half" testimony, asked, "is there an agreement as to how to split it?" Counsel for Tanya McMahon then observed, "It is-I think-is subject to reallocation, isn't it?" After the court asked, "Do the parties intend to be subject to reallocation?" counsel for Christopher McMahon observed, "I don't remember. I'll just let the order speak for itself." Counsel's statement indicated his view that the agreed-to order providing for the equal sharing of costs remained in effect. The guardian ad litem then observed that "mom has paid more" and that "I'd like to get paid ... I'm willing to talk to the parties about this, what's owed." Counsel for Christopher McMahon then responded, "So we understand. An additional submission may be made."

[¶33] No additional filings or submissions are referenced in the docket entries, and no other actions or amendments to the guardian ad litem appointment orders appear in the file prior to the court's November 13, 2017, order that is the subject of this appeal. Thus, as of the time the court rendered its decision, the outstanding and effective guardian ad litem appointment
orders, pursuant to M.R.G.A.L. 4(b)(4)(A), specified a maximum fee that may be charged without further order of the court of $4,400 and specified that each party pay a total of $2,200 toward the guardian ad litem fees.

[¶34] Disregarding the governing guardian ad litem appointment orders, the court's final order authorized total payments to the guardian ad litem of $7,974.71, nearly $3,600 in excess of the final spending cap set in accordance with the Rule 4(b)(4)(A) and more than triple the $2,400 spending cap agreed to before the amendment that contemplated the travel to Connecticut that ultimately did not occur. The final order directed Christopher McMahon to pay the guardian ad litem over $3,400 in addition to the $1,700 that the court recognized that Christopher McMahon had already paid to the guardian ad litem. That final order effectively set aside the agreement for equal sharing of costs in the original guardian ad litem appointment orders and required that Christopher McMahon pay approximately $2,900 more than the cap of $2,200 on his payments set in the May 1, 2017, amended order.

[¶35] Neither the court's findings nor the record contains any justification for the guardian ad litem to perform work in excess of the thirty hours specified in the guardian ad litem appointment orders or to charge fees in excess of the total of $4,400 authorized in the amended guardian ad litem appointment order. In fact, because the guardian ad litem did not travel to Connecticut, as contemplated by the May 1, 2017, amended order, there is a serious question as to whether there was authority to exceed the $2,400 cap set in the original guardian ad litem appointment order before the change authorizing travel to Connecticut. However, for purposes of this opinion, we can assume that the hours cap of thirty hours and the fees cap of $4,400 govern the work authorized and payments that can be approved for the guardian ad litem. At the hearing, Christopher McMahon's counsel acknowledged and agreed to the $4,400 or $4,800 payment obligation with "each paying half."

[¶36] Without providing the parties with notice or an opportunity to be heard, or any findings justifying its actions, the final court order disregarded the earlier orders setting limits on the work authorized and payments to the guardian ad litem. The final order, in effect, signified a return to the abusive, open-ended guardian ad litem fee-setting practices that prevailed prior to the

Douglas

and

Desmond

opinions and the reforms that followed those opinions.

[¶37] The Court's opinion, addressing the issues on appeal, states that "Christopher contends that it was error for the court to order him to pay a portion of Tanya's attorney fees and to apportion more than half of the guardian ad litem fees to him. Christopher argues that the court erred by finding that he was able to afford such payments." Court's Opinion ¶ 13. Despite recognizing that the guardian ad litem's excessive fee request was not submitted until ten days after trial, the Court supports its decision by asserting that "the appellant did not challenge the total amount of the guardian ad litem's fees at trial and is not raising any issue regarding the final amount of the guardian ad litem's fees in this appeal. Nonetheless, the dissent

sua sponte

raises the issue." Court's Opinion ¶ 17.

[¶38] Christopher McMahon is unrepresented in this appeal. During the hearing, McMahon's then-counsel and the guardian ad litem recognized the continuing existence of the $4,400 or $4,800 payment cap and the continuing validity of the agreed equal fee-sharing arrangement. The concern in this opinion is the trial court's

sua

sponte

act, without any on-the-record request from the guardian ad litem and without specific findings supporting its unilateral action, altering the fee cap and fee sharing arrangement acknowledged by the guardian ad litem at hearing.

[¶39] Christopher McMahon sufficiently preserved for appeal his objections to the payment mandate in his appeal documents by generally objecting to the guardian ad litem's payment mandate, when the general objection is combined with his then-counsel's and the guardian's statements on the last day of the hearing.

[¶40] Even if the appeal filing and the on-the-record statements are viewed as insufficient to preserve objections to the disregard of the negotiated cap and equal sharing agreement, the trial court's disregard of the orders setting payment caps and specifying the fee sharing arrangement, without providing the parties with notice and an opportunity to be heard, constitutes obvious error.

[¶41] We have held that for us to vacate a judgment based on the obvious error standard of review, "there must be (1) an error, (2) that is plain, and (3) that affects substantial rights"; if those conditions are met, we have indicated that we will exercise our discretion to notice an unpreserved error if we also conclude that (4) the error seriously affects the fairness and integrity or public reputation of the judicial proceedings.

State v. Fahnley

,

2015 ME 82

, ¶ 15,

119 A.3d 727

;

accord

Truman v. Browne

,

2001 ME 182

, ¶ 12,

788 A.2d 168

;

Morey v. Stratton,

2000 ME 147

, ¶¶ 10 & n.3, 11,

756 A.2d 496

;

Scott v. Lipman & Katz, P.A.,

648 A.2d 969

, 974-75 (Me. 1994) (applying obvious error review in civil cases).

[¶42] The trial court's disregard of the previously agreed to and court approved payment caps and fee sharing arrangement, requiring Christopher McMahon to pay more than double his agreed-to commitment without advance notice and opportunity to be heard and without findings justifying rejection of the prior agreed to orders, meets our criteria to vacate due to obvious error. With the past problems that had afflicted guardian ad litem fee-setting and collection practices, problems that the Court had adopted orders and rules to correct, the trial court should not have allowed the guardian ad litem to invite it to return to the past, discredited fee assessment and collection practices.

[¶43] I would vacate the portion of the trial court's judgment regarding approval of guardian ad litem fees and imposition of payment obligations on Christopher McMahon and remand with direction that the guardian ad litem appointment order's limitation on payments of $4,400 with equal sharing of payment obligation by the parties be enforced. With this change, Christopher McMahon would be obligated to pay $500 in addition to the $1,700 that the final order recognized he had already paid toward the guardian ad litem fees.