# Tanya J. McMahon v. Christopher P. McMahon

> Supreme Judicial Court of Maine · January 24, 2019 · 200 A.3d 789

URL: https://www.frixlaw.com/law-library/cases/4361623

## Case

- **Full name:** Tanya J. MCMAHON v. Christopher P. MCMAHON
- **Court:** Supreme Judicial Court of Maine
- **Decided:** January 24, 2019
- **Citations:** 200 A.3d 789; 2019 ME 11
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Saufley, Alexander, Mead, Gorman, Jabar, Hjelm, Humphrey
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4361623

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4361623. Public record. Not legal advice.
