90 A.3d 438
Me.2014Background
- 2008 divorce judgment awarded primary residence and sole parental rights of the parties’ minor child to Cobb; Hutchinson received limited supervised visitation that was later expanded to include overnight visits.
- Multiple post-judgment motions followed; in March 2013 Cobb moved to modify custody/visitation and a hearing was held in Bridgton District Court.
- The court determined the six-year-old child was competent to testify and announced the child would be questioned in chambers without either parent present; parties submitted proposed questions.
- Unknown to the parties, the in‑chambers interview was taken off the record; the court later summarized the child’s statements in its findings, including statements about bruising and behavior at Hutchinson’s home.
- The court relied on that in‑chambers testimony and Cobb’s testimony to modify the prior order: eliminating overnight visits and requiring supervised visitation.
- Hutchinson appealed; the Supreme Judicial Court considered whether a trial court may take off‑the‑record, in‑chambers testimony from a child in a civil proceeding without statutory authority or the parties’ valid consent.
Issues
| Issue | Hutchinson's Argument | Cobb's Argument | Held |
|---|---|---|---|
| Whether a trial court may take testimony from a child witness in chambers and off the record in a civil proceeding absent statutory authority | Rule 43(a) requires testimony in open court; in‑chambers, off‑record testimony violated M.R. Civ. P. 43(a) and deprived him of ability to respond or seek review | Court’s protective interview was permissible to avoid forcing the child to testify in open court; parties agreed to chambers questioning | Court held Rule 43(a) prohibits in‑chambers, off‑the‑record interviews absent statutory exception; vacated order because testimony was not on the record and no statute authorized closure |
| Whether parties’ consent to in‑chambers questioning waives Rule 43 protections | Consent to chambers questioning cannot cure absence of a record when testimony is off the record | Parties submitted questions and acquiesced to the interview; thus Hutchinson waived objection to chambers procedure | Court held Hutchinson consented to the child testifying in chambers, so he cannot contest the in‑chambers procedure itself, but consent does not excuse the court’s failure to record the testimony |
| Whether statutory exception permitted in‑chambers testimony here | No Maine statute allowed in‑chambers child testimony in civil custody modification proceedings (22 M.R.S. § 4007(2) limited to child protective proceedings) | Court relied on protective motivations and some states’ practice allowing in‑chambers interviews | Court held no applicable statutory exception existed for taking child testimony in chambers in this civil proceeding |
| Whether the failure to record the in‑chambers testimony was harmless error | Lack of record prevents meaningful response or appellate review; court relied heavily on that testimony | The court’s findings summarized the child’s statements; parties had proposed questions | Court held absence of any record was not harmless and required vacatur and remand for proceedings consistent with Rule 43 and recording requirements |
Key Cases Cited
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (U.S. 1980) (history and values of public trials and open proceedings)
- Jusseaume v. Ducatt, 15 A.3d 714 (Me. 2011) (right to cross‑examine adverse witnesses is essential where facts are pivotal)
- C.E.T. v. K.M.T., 880 So. 2d 466 (Ala. Civ. App. 2003) (parties may consent to in‑chambers interview)
- Kohler v. Kromer, 214 S.E.2d 551 (Ga. 1975) (permitting judge to speak to children in chambers)
- In re Brian B., 689 N.W.2d 184 (Neb. 2004) (upholding in‑chambers child interview in certain circumstances)
- Ex Parte Barryhill, 410 So. 2d 416 (Ala. 1982) (private trials and in‑chambers witness interviews disfavored)
- Raper v. Berrier, 97 S.E.2d 782 (N.C. 1957) (error to interview child witness in chambers)
- Robison v. Lanford, 841 So. 2d 1119 (Miss. 2003) (court must make record of private interview with child to preserve basis for findings)
- Deutsche Nat’l Bank Trust Co. v. Wilk, 76 A.3d 363 (Me. 2013) (non‑harmless error standard where record is inadequate)
- State v. Ford, 82 A.3d 75 (Me. 2013) (consent/strategy principles and review limitations)