Shaw v. Packard , 2005 Me. LEXIS 134 ( 2005 )

ALEXANDER, J.,

with whom CALKINS, J., joins dissenting.

[¶ 16] I concur in the Court’s conclusion that the mandate in 19-A M.R.S.A. § 4006(1) (1998) that hearings be held within twenty-one days does not preclude a court from exercising its discretion to grant a continuance of the final hearing on a protection from abuse complaint beyond the twenty-one-day limit. However, in my view, the court’s decision to deny Packard’s continuance request was within the range of the court’s discretion, considering Packard’s decision to seek both a dissolution of the temporary order of protection from abuse and a continuance of the hearing to make that order a final order. Accordingly, I respectfully dissent from the result reached by the Court.

[¶ 17] There is a strong public policy favoring a prompt hearing for individuals claiming domestic violence and seeking protection from an alleged abuser. There is a statutory mandate that individuals seeking to dissolve ex parte temporary protection orders receive a prompt hearing. There is a court scheduling practice that disfavors continuances when the party seeking a continuance makes no offer of proof as to what specific evidence might be gained from a continuance and demonstrates no specific prejudice that might befall the party or the process by denial of the continuance. All these policies supported denial of the continuance here and made any error in the court’s wording of the denial harmless.

[¶ 18] The record indicates that after the temporary protection from abuse order issued and a hearing on the final protection from abuse order was scheduled, Packard, on the day before the scheduled hearing, filed a motion seeking to both dissolve the temporary order and continue the hearing on the final order for protection from abuse. At the hearing, Packard offered only a brief argument in support of his motion to continue, stating to the court that: “There’s a mature⁴ witness who’s not available, your Honor.” The statement — and the underlying motion to continue — contained no offer of proof of the unavailable witness’s anticipated testimony or any indication of specific prejudice that Packard would face by proceeding to hearing.

[¶ 19] Shaw only learned of the motion at the start of the scheduled hearing. In response to the court’s inquiry, Shaw indicated that she wanted the hearing to be held that day. Hearing Packard’s argument, followed by Shaw’s objection to Packard’s motion, the court denied the continuance request and proceeded to conduct the scheduled hearing.

[¶ 20] Packard’s motion to dissolve had triggered the court’s obligation, pursuant to 19-A M.R.S.A. § 4006(7) (1998), to schedule a hearing on Packard’s request for dissolution “upon 2 days’ notice to the plaintiff or upon such shorter notice as the court may order .... ” The court’s statement denying the continuance may have combined its obligation to conduct a prompt hearing on the motion to dissolve with the twenty-one-day hearing requirement for final hearings. By giving Packard a hearing on one day’s notice after the filing of his motion to dissolve, the court granted Packard one of the wishes expressed in his motion and, at the same time, complied with the statutory mandate that a motion for dissolution triggers a right to a prompt hearing. Faced with the statutory mandate to accord a prompt hearing on the motion to dissolve, and offered only a brief and general statement in support of the motion to continue, the court’s decision to proceed with the hearing as scheduled and meet its statutory obligation was neither an abuse of discretion nor an error of law.

[¶ 21] At oral argument before us, counsel for Packard suggested that the trial court has a general practice of denying continuances because of the twenty-one-day hearing mandate in 19-A M.R.S.A. § 4006(1). Nothing about such other cases appears in the record, thus nothing indicates whether the court in any other cases was faced with both a motion to dissolve, mandating a prompt hearing, and a motion to continue. Only this case is before us for decision, and on the facts of this case, with no offer of proof of anticipated testimony and no demonstration of specific prejudice from proceeding to hearing, the trial court did not err or abuse its discretion in denying the continuance. Accordingly, I would affirm the judgment of the court.

4 . Mature is the word that appears in the transcript. The actual word used may have been something like "essential" or “important.”