Robin S. Hutchinson v. Jennie E. (Hutchinson) Cobb , 2014 Me. LEXIS 58 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 53
Docket: Cum-13-200
Submitted
On Briefs: February 11, 2014
Decided: April 3, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
ROBIN S. HUTCHINSON
v.
JENNIE E. (HUTCHINSON) COBB
MEAD, J.
[¶1] Robin S. Hutchinson appeals from an order of the District Court
(Bridgton, Moskowitz, J.) granting Jennie E. (Hutchinson) Cobb’s motion to
modify an existing divorce judgment that had awarded primary residence of the
parties’ minor child to Cobb with specific rights of contact to Hutchinson.
Hutchinson’s appeal requires us to decide whether a trial court may, in a civil
proceeding, and in the absence of an agreement of the parties, take testimony from
a child witness in chambers and off the record. We answer the question in the
negative and vacate the order.
I. BACKGROUND
[¶2] In 2008, the District Court (Farmington, Stanfill, J.) entered a divorce
judgment on the ground of irreconcilable marital differences. In the judgment, the
2
court awarded primary residence and sole parental rights and responsibilities of the
parties’ minor child to Cobb, allowing Hutchinson one supervised two-hour
visitation period with the then eighteen-month-old child each week until the child
reached the age of five. Since the initial divorce judgment was entered,
Hutchinson and Cobb have filed multiple post-judgment motions focused on issues
of custody and visitation.1 As a result of one such motion, in July 2010, the court
(Kelly, J.) expanded Hutchinson’s rights of contact to include two daytime visits
per week. In September 2011, the court (Driscoll, J.) again expanded
Hutchinson’s rights of contact, this time to include overnight visits. In
March 2013, after this case was transferred to the Bridgton District Court, a
hearing was held on Cobb’s latest motion to modify. Both Hutchinson and Cobb
appeared pro se.
[¶3] At the hearing, the court, after determining that the child, age 6, was
sufficiently competent to testify, indicated—without specific objection2—that the
child’s testimony would be taken in chambers in the presence of the clerk but
without either party present. The parties provided the court with written proposed
1
A review of the docket record in this case shows that the parties have filed six motions for contempt,
five motions to modify, two motions to change venue, and a motion to recuse three different judges.
2
Hutchinson objected generally to his child being called as a witness, but he did not object to the
in-chambers procedure itself. When the court asked Hutchinson to state the grounds for his objection, he
stated: “Based on my [child] has been put through enough on frivolous things.”
3
questions.3 Unbeknownst to the parties, however, the child’s testimony was taken
off the record. The court recounted aspects of the behind-closed-doors testimony
in its findings.
[¶4] In its decision, the court stated that, in response to its questioning, the
child indicated that when she is at Hutchinson’s house she sleeps in his bed
wearing only a diaper, and that he wears only underwear. The child also stated that
she dislikes staying at Hutchinson’s home because he is “mean” to her. According
to the court's findings, when the court asked her what she meant by "mean," she
"indicated" black-and-blue bruises, but did not elaborate on how the bruises were
caused.
[¶5] Based on this evidence, along with Cobb’s testimony, the court
concluded that it was not in the child’s best interest to continue to have
unsupervised contact with Hutchinson. It modified the September 2011 order to
require supervised visits and eliminated overnight visits. On March 25,
Hutchinson filed a motion to extend the appeal deadline, and on April 23, after
receiving an extension, he filed a timely notice of appeal.
3
The court later reported that the parties’ proposed questions were asked “in substance.”
4
II. DISCUSSION
[¶6] The trial court has broad discretion in controlling the presentation of
evidence. See M.R. Evid. 611(a). A court’s control over where a witness may be
examined, however, is sharply limited by M.R. Civ. P. 43(a), which provides that
“the testimony of witnesses shall be taken in open court, unless a statute, these
rules or the Rules of Evidence provide otherwise.” (Emphasis added.) This rule,
Hutchinson argues, was violated when the court took his child’s testimony in
chambers instead of in the courtroom.4
[¶7] The requirement that testimony be taken in “open court” has deep roots
in our jurisprudence, reaching back to English common law. See generally
Richmond Newspapers, Inc. v. Va., 448 U.S. 555, 569-70 (1980) (discussing a
history of public proceedings in England); Judith Resnik, Bringing Back Bentham:
“Open Courts,” “Terror Trials,” and Public Sphere(s), 5 Law & Ethics Hum.
Rts. 2 (2011) (exploring the origins of public proceedings). The virtues of public
and open proceedings are many: education of the public; transparency; and
discouragement of perjury, misconduct of the participants, and decisions based on
secret bias or partiality. Richmond Newspapers, 448 U.S. at 569-70. Indeed, many
4
We note that the term “open court” in this context is not necessarily limited to the four walls of a
traditional courtroom or some other specific location. Proceedings may take place in a variety of
locations as special needs may require and still satisfy the open-court requirement as long as the locations
are consistent with traditional notions of open-court proceedings: the proceeding must be accessible to the
parties and the public, and the proceedings ordinarily must take place on the record as provided by
applicable rules and law.
5
of the cornerstones of the Anglo-American judicial system are founded upon open
and accessible public proceedings, and without open-court testimony, many
important procedural processes, including cross-examination, are either limited or
eliminated. See Jusseaume v. Ducatt, 2011 ME 43, ¶ 13, 15 A.3d 714 (“[T]he right
to cross-examine adverse witnesses . . . is constitutionally required in almost every
setting where important decisions turn on questions of fact.” (quotation marks
omitted)).
[¶8] In this country, our first legislators recognized the importance of
open-court proceedings and public trials, and they incorporated appropriate
protections, first in the laws of the original colonies, later in state laws, and
ultimately in state and the United States’ constitutions. Resnick at 6-7.
[¶9] Although the protections of the Sixth Amendment do not apply to civil
proceedings, most states, like Maine, require open-court testimony in civil matters
by statute or rule of civil procedure, typically in the form of Rule 43. See, e.g.,
Ala. R. Civ. P. 43(a) (“In all trials the testimony of witnesses shall be taken orally
in open court . . . .”); M.R. Civ. P. 43(a) (“[T]he testimony of witnesses shall be
taken in open court . . . .”); Vt. R. Civ. P. 43(a) (In all trials the testimony of
witnesses shall be taken orally in open court . . . .”). The Federal Rules of Civil
Procedure impose a similar requirement. See Fed. R. Civ. P. 43.
6
[¶10] With this precedent and history in mind, we must address the issue of
child testimony that, along with the testimony of other vulnerable witnesses,
presents a unique challenge in the face of M.R. Civ. P. 43’s clear requirement of
“open court” testimony.
[¶11] Many states, including Maine, have created statutory exceptions to
Rule 43 that allow child witnesses to testify in chambers under certain
circumstances. See, e.g., Cal. Fam. Code § 7892 (West, Westlaw through Ch. 4 of
2014 Reg. Sess.) (allowing a child’s testimony to be taken in chambers if certain
circumstances exist); Ky. Rev. Stat. Ann. § 403.290 (West, Westlaw through 2013
Sess.) (allowing the court to interview a child in chambers to ascertain his or her
wishes). In Maine, 22 M.R.S. § 4007(2) (2013) permits, as an exception to M.R.
Civ. P. 43(a), child testimony to be taken in chambers with only the guardian
ad litem and counsel present, provided that the statements are a matter of record.5
Section 4007(2)’s application is limited to child protective proceedings, however,
and no other exception to Rule 43 exists that would allow in-chambers testimony
under the circumstances of this case.
5
Section 4007(2) provides:
The court may interview a child witness in chambers, with only the guardian ad litem and
counsel present, provided that the statements made are a matter of record. The court may
admit and consider oral or written evidence of out-of-court statements made by a child,
and may rely on that evidence to the extent of its probative value.
7
[¶12] Some states allow a child to be interviewed in chambers despite the
absence of a statutory exception to the open-court mandate. See, e.g., Kohler v.
Kromer, 214 S.E.2d 551, 552 (Ga. 1975) (holding it was not error for the trial
judge to talk to the children in chambers outside the presence of counsel and the
parties); In re Brian B., 689 N.W.2d 184, 189 (Neb. 2004) (same). Others,
however, refuse to condone the practice. See, e.g., Ex Parte Barryhill,
410 So. 2d 416, 418 (Ala. 1982) (“Nothing in American law allows private trials.
That custom went out with the abolishment of the Star Chamber, and the right to a
public trial . . . remains the fundamental law of our land.”); Raper v. Berrier,
97 S.E.2d. 782, 784 (N.C. 1957) (holding that it was error for the trial court to
interview a child witness in chambers). We agree with the latter approach. By
allowing the child in this case to be interviewed without either party present, the
court departed from the clear mandate of M.R. Civ. P. 43(a). We wholeheartedly
recognize the trial court’s commendable efforts to protect the child from facing her
parents in open court and possibly having to “pick sides,” but those efforts must be
considered in the context of litigants’ procedural rights and the requirements of
M.R. Civ. P. 43.
[¶13] Like many rights that are within the province of the litigant, however,
the protections of Rule 43 can be waived. See C.E.T. v. K.M.T.,
880 So. 2d 466, 468 (Ala. Civ. App. 2003) (holding that an in-chambers interview
8
could have been conducted with the father’s consent); Berrier, 97 S.E.2d at 784
(same). In this case, both Hutchinson and Cobb agreed to have their child testify in
chambers.6 They prepared questions for the court to ask the child and were given
the opportunity to review and object to the opposing party’s questions. In light of
his clear consent to the court’s deviation from the mandatory directives of M.R.
Civ. P. 43(a), we will not now allow Hutchinson to challenge a process to which he
openly acquiesced. See State v. Ford, 2013 ME 96, ¶ 16, 82 A.3d 75
(re-emphasizing that obvious-error review does not provide an opportunity for
review of a requested but failed trial strategy).7
[¶14] Nevertheless, Hutchinson’s consent to the in-chambers interview did
not relieve the court of its responsibility to keep a record of the resulting testimony.
All testimonial proceedings in any family or civil matter must be recorded.
Recording of Trial Court Proceedings, Me. Admin. Order JB-12-1 (effective
Nov. 22, 2013) (enacted pursuant to M.R. Civ. P. 76H(c)).8 Testimony taken in
chambers is not excepted from this requirement. To the contrary, when a
6
As noted in footnote 2, although Hutchinson objected generally to his child testifying at trial, he
voiced no specific objection to the court’s intention to take the testimony in chambers without the parties
and counsel being present. Indeed, he proposed questions for the judge to ask in chambers.
7
We note that even when the parties consent and thus waive their objections to Rule 43, the best
practice is for the court to ensure that there are procedural protections in place similar to those required by
22 M.R.S. 4007(2): allowing attorneys for each party (if both parties are represented) to be present and
question the witness, and taking the child’s testimony on the record.
8
Me. Admin. Order JB-12-1 became effective on February 1, 2012. It was amended for the third time
on November 22, 2013.
9
proceeding is closed, the recording requirement becomes even more vital. See
Robison v. Lanford, 841 So. 2d 1119, 1124-25 (Miss. 2003) (“A trial court’s
refusal to make a record of a private conversation between the court and the child
left the father with no means of knowing the basis for any findings the court might
make.” (quotation marks omitted)).
Here, the lack of a record of the in-chambers testimony deprives Hutchinson
of any ability to respond to the court’s findings or to seek meaningful appellate
review. Further, the record provides no indication that Hutchinson had prior notice
that his child’s testimony would be taken off the record, and we will not infer that
he acquiesced in or otherwise consented to the same. Because the court relied
heavily on the in-chambers testimony in its findings and its ultimate decision to
modify Hutchinson’s rights of contact, we cannot say that the error resulting from
the absence of a record was harmless. See Deutsche Nat’l. Bank Trust Co. v. Wilk,
2013 ME 79, ¶ 21, 76 A.3d 363. Therefore, we vacate the court’s order of
March 6, 2013, and remand this matter to the trial court for further proceedings
consistent with this opinion. We do not reach Hutchinson’s other arguments.
The entry is:
Judgment vacated. Remanded to the District Court
for further proceedings consistent with this
opinion.
10
On the briefs:
John Wm. Martin, Esq., The Law Offices of John Wm. Martin,
Skowhegan, for appellant Robin S. Hutchinson
Jennie Cobb, pro se appellee
Bridgton District Court docket number FM-2012-185
FOR CLERK REFERENCE ONLY