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	
