Robin S. HUTCHINSON v. Jennie E. (Hutchinson) COBB
Docket No. Cum-13-200
Supreme Judicial Court of Maine
April 3, 2014
2014 ME 53
MEAD, J.
Submitted on Briefs: Feb. 11, 2014.
John Wm. Martin,
Jennie Cobb, pro se appellee.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
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 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
[¶ 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 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.
II. DISCUSSION
[¶ 6] The trial court has broad discretion in controlling the presentation of evidence. See
[¶ 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
[¶ 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. Resnik 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.,
[¶ 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
[¶ 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.,
[¶ 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, 234 Ga. 117, 214 S.E.2d 551, 552 (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., 268 Neb. 870, 689 N.W.2d 184, 189 (2004) (same). Others, however, refuse to condone the practice. See, e.g., Ex Parte Berryhill, 410 So.2d 416, 418 (Ala.1982) (“Nothing in American law allows private trials. That custom went
[¶ 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 could have been conducted with the father’s consent); Berrier, at 97 S.E.2d 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
[¶ 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
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
The entry is:
Judgment vacated. Remanded to the District Court for further proceedings consistent with this opinion.
Notes
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.