MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	31	
Docket:	   Yor-16-72	
Argued:	   September	15,	2016	
Decided:	  February	24,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                    GUARDIANSHIP	OF	ALISHA	K.	GOLODNER	
	
	
PER	CURIAM

	     [¶1]		Daniel	Golodner	has	appealed	from	a	judgment	of	the	York	County	

Probate	Court	(Longley,	J.)	denying	his	petition	to	terminate	the	guardianship	

of	his	minor	daughter,	Alisha	K.	Golodner.		We	dismiss	the	appeal	to	the	extent	

that	it	presents	issues	that	have	become	moot;	vacate	and	remand	the	portion	

of	the	judgment	relating	to	the	sole	issue	that	has	not	become	moot—the	court’s	

order	 regarding	 guardian	 ad	 litem	 (GAL)	 fees	 as	 a	 sanction;	 vacate	 any	 stay	

currently	in	effect	in	the	Probate	Court	arising	out	of	this	appeal;	and	order	the	

immediate	return	of	the	case	file	to	the	Probate	Court	with	a	directive	that	it	

take	action	regarding	Alisha’s	care.	

                                   I.		BACKGROUND	

      [¶2]		In	March	2011,	the	York	County	Probate	Court	(Bailey,	J.)	appointed	

Daniel’s	 stepmother,	 Gail	 Golodner,	 as	 Alisha’s	 full,	 permanent	 guardian.		
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See	 18-A	 M.R.S.	 §	 5-204	 (2016).	 	 Daniel	 filed	 a	 petition	 to	 terminate	 the	

guardianship	in	June	of	2014.1		See	18-A	M.R.S.	§	5-212	(2016).	

         [¶3]		In	November	of	2015,	Ashley	T.	Birkbeck	and	Donald	L.	Birkbeck	

filed	a	petition	“to	be	appointed	as	standby	or	alternate	guardians	in	the	case	of	

incapacity	o[r]	death	of	the	current	guardian,”	which	Daniel	opposed.	

         [¶4]		In	January	of	2016,	the	court	(Longley,	J.)	held	a	two-day	hearing	

that	it	described,	in	a	pretrial	order,	as	“possibly	one	long,	consolidated	hearing	

day	for	all	pending	matters.”		On	the	second	day	of	the	hearing,	the	GAL	testified	

that	 Daniel	 had	 left	 a	 telephone	 message	 for	 him	 after	 the	 first	 day	 of	 the	

hearing	 accusing	 him	 of	 “slander”	 and	 “libel”	 and	 threatening	 to	 “fil[e]	 a	

grievance	with	the	Maine	Bar”	depending	on	“how	[he]	perform[ed]	between	

now	and	the	end	of	the	trial	or	the	end	of	the	matter.”	

         [¶5]		After	the	hearing,	the	court	denied	Daniel’s	petition	to	terminate	the	

guardianship	 upon	 finding	 that	 (1)	 Gail	 proved,	 by	 clear	 and	 convincing	

evidence,	that	Daniel	is	unfit	to	parent	Alisha	and	(2)	Daniel	failed	to	prove,	by	

a	preponderance	of	the	evidence,	that	termination	of	the	guardianship	would	


     1		In	December	of	2014,	while	his	petition	to	terminate	the	guardianship	was	pending,	Daniel	also	

filed	 a	 “motion	 for	 immediate	 relief”	 from	 the	 judgment	 establishing	 the	 guardianship.	 	 See	 M.R.	
Prob.	P.	60(b);	M.R.	Civ.	P.	60(b)(3),	(4),	(6).		After	a	hearing,	the	court	(Longley,	J.)	denied	that	motion.		
All	Rule	60(b)	motions	must	“be	made	within	a	reasonable	time,”	and	a	motion	for	relief	based	on	
fraud	 or	 misrepresentation	 must	 be	 made	 “not	 more	 than	 one	 year	 after	 the	 judgment,	 order,	 or	
proceeding	was	entered	or	taken.”		M.R.	Civ.	P.	60(b).		It	is	not	clear	from	the	record	why	the	court	
authorized	 and	 entertained	 Daniel’s	 Rule	 60(b)	 motion,	 years	 after	 the	 order	 establishing	 the	
guardianship	 was	 entered	 and	 while	 Daniel’s	 petition	 for	 termination	 of	 the	 guardianship	 was	
pending.	
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be	in	Alisha’s	best	interest.		The	court	also	ordered	that	Daniel	pay	fees	for	work	

performed	by	the	GAL	as	“a	necessary	consequence”	for	Daniel’s	threatening	

conduct	 between	 the	 first	 and	 second	 days	 of	 the	 hearing.	 	 No	 evidence	 was	

presented	 concerning	 the	 issue	 of	 whether	 appointing	 the	 Birkbecks	 as	

co-guardians	 or	 “standby	 or	 alternate”	 guardians	 would	 be	 in	 Alisha’s	 best	

interest,	and	the	court	did	not	rule	on	the	Birkbecks’	petition.	

      [¶6]		Daniel	timely	appealed	from	the	denial	of	his	petition	to	terminate	

the	 guardianship,	 challenging	 the	 sufficiency	 of	 the	 evidence	 supporting	 the	

court’s	 unfitness	 determination	 and	 its	 decisions	 (1)	 denying	 “transitional	

arrangements”	and	(2)	ordering	payment	of	the	GAL’s	fees.		He	also	challenged,	

on	several	grounds,	the	court’s	denial	of	his	motion	for	immediate	relief	from	

the	judgment	appointing	Gail	as	Alisha’s	full	guardian.	

      [¶7]		On	February	17,	2017,	Gail’s	attorney	notified	us	that	Gail	died	on	

February	13,	2017.		Daniel	has	presented	us	with	a	motion	for	relief	from	the	

Probate	 Court’s	 order	 asking	 us	 to	 “clarify	 and	 settle	 his	 status	 as	 sole	

custodian.”	 	 In	 response,	 Gail’s	 attorney	 urges	 us	 to	 reach	 the	 merits	 of	 the	

appeal	or,	in	the	alternative,	remand	the	case	to	the	Probate	Court	for	a	hearing	

on	the	Birkbecks’	petition.	
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                                    II.		DISCUSSION	

A.	    Mootness	
	
       [¶8]	 	 “An	 issue	 is	 moot	 when	 there	 remains	 no	 real	 and	 substantial	

controversy,	 admitting	 of	 specific	 relief	 through	 a	 judgment	 of	 conclusive	

character.”		Mainers	for	Fair	Bear	Hunting	v.	Dep’t	of	Inland	Fisheries	&	Wildlife,	

2016	ME	57,	¶	5,	136	A.3d	714	(quotation	marks	omitted);	see	Alexander,	Maine	

Appellate	Practice	§	205	at	211	(4th	ed.	2013)	(“When	no	decision	on	the	appeal	

can	 afford	 the	 appellant	 any	 effective	 relief,	 the	 appeal	 will	 be	 dismissed	 as	

moot.”).		By	operation	of	law,	a	guardianship	terminates	when	the	guardian	dies	

because	the	guardian	can	no	longer	exercise	her	“authority	and	responsibility.”		

18-A	M.R.S.	§	5-210	(2016);	see	Guardianship	of	Chamberlain,	2015	ME	76,	¶	27,	

118	 A.3d	 229.	 	 Because	 Gail’s	 guardianship	 of	 Alisha	 terminated	 upon	 Gail’s	

death,	a	decision	on	Daniel’s	appeal	from	the	denial	of	his	petition	to	terminate	

the	guardianship	would	not	provide	him	any	effective	relief.		The	substance	of	

Daniel’s	 appeal,	 including	 his	 challenge	 to	 the	 denial	 of	 his	 motion	 for	 relief	

from	the	judgment	establishing	Gail’s	guardianship,	is	therefore	moot.	

       [¶9]		In	limited	circumstances,	we	will	still	address	the	merits	of	a	moot	

issue	on	appeal.		See	Bailey	v.	Dep’t	of	Marine	Res.,	2015	ME	128,	¶	4,	124	A.3d	

1125	(discussing	the	“three	generally	recognized	exceptions	to	the	mootness	

doctrine	that	may	justify	addressing	the	merits	of	an	otherwise	moot	issue	on	
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appeal”).		Here,	however,	we	are	not	persuaded	by	Gail’s	attorney’s	argument	

that	 the	 “public	 interest”	 exception	 to	 the	 mootness	 doctrine	 applies,	

see	 Mainers	 for	 Fair	 Bear	 Hunting,	 2016	 ME	 57,	 ¶	 9	 &	 n.4,	 136	 A.3d	 714;	

cf.	In	re	Walter	R.,	2004	ME	77,	¶	12,	850	A.2d	346,	and	neither	party	has	urged	

or	 demonstrated	 that	 any	 other	 exception	 applies.2	 	 Accordingly,	 we	 dismiss	

Daniel’s	appeal,	with	the	single	exception	of	the	issue	of	the	court’s	order	that	

Daniel	pay	GAL	fees	as	a	sanction,	as	discussed	below.		Daniel’s	motion	for	relief	

before	us	is	denied.	

      [¶10]		In	order	to	facilitate	a	swift	transition	of	care	for	Alisha,	any	stay	

of	 proceedings	 currently	 in	 effect	 in	 the	 Probate	 Court	 by	 virtue	 of	 Daniel’s	

appeal	is	hereby	vacated.		We	also	order	the	immediate	return	of	the	case	file	

to	 the	 Probate	 Court	 and	 immediate	 action	 in	 the	 Probate	 Court	 regarding	

Alisha’s	care.	

B.	   Payment	of	GAL	Fees	as	a	Sanction	

      [¶11]	 	 To	 the	 extent	 that	 the	 court	 erred	 or	 abused	 its	 discretion	 by	

ordering	Daniel	to	pay	GAL	fees	as	a	sanction,	our	decision	on	Daniel’s	challenge	

to	that	portion	of	the	court’s	judgment	could	afford	Daniel	effective	relief.		This	

issue	therefore	still	presents	a	“real	and	substantial	controversy,”	Mainers	for	




  2		In	fact,	Daniel	appears	to	argue	affirmatively	that	his	appeal	is	moot.	
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Fair	Bear	Hunting,	2016	ME	57,	¶	5,	136	A.3d	714	(quotation	marks	omitted),	

and	is	not	moot,	so	we	address	it	here.	

      [¶12]		The	court	stated,	in	relevant	part:	

      Concerning	 a	 necessary	 consequence	 for	 [Daniel]’s	 threat	 to	 the	
      [GAL],	this	[c]ourt	also	orders	that	the	GAL	tally	his	hours	in	writing	
      his	 [r]eport	 for	 this	 [c]ourt	 and	 his	 post-Jan.	 15,	 2015	 hours	 in	
      fielding	 [Daniel]’s	 threatening	 phone	 messages	 and	 his	 having	 to	
      appear	in	court	today	as	a	witness,	use	his	usual	professional	rate	
      of	 compensation	 and	 add	 the	 total	 resulting	 amount	 to	 his	 bill,	
      which	this	[c]ourt	orders	[Daniel]	to	pay.	
      	
In	general,	we	review	an	award	of	fees	based	on	a	party’s	misconduct	for	an	

abuse	of	discretion.		Woolridge	v.	Woolridge,	2008	ME	11,	¶	11,	940	A.2d	1082.	

	     [¶13]		Several	aspects	of	the	court’s	order	in	this	case	compromise	our	

ability	to	undertake	meaningful	review.		First,	the	court	has	not	yet	entered	an	

order	stating	the	specific	amount	owed	as	a	sanction.		See	Conservatorship	&	

Guardianship	of	Ann	B.	Thomas,	2017	ME	11,	¶¶	5-7,	10,	---	A.3d	---.		Second,	the	

order	does	not	make	clear	what	rate	of	pay	is	to	be	used	or	what	hours	are	to	

be	compensated.		It	is	unclear	whether	the	court	intended	to	require	Daniel	to	

pay	only	the	fees	associated	with	the	specific	tasks	mentioned	(one	of	which—

preparing	 the	 GAL	 report—is	 unrelated	 to	 Daniel’s	 threatening	 telephone	

message),	 or	 whether	 it	 intended	 to	 require	 him	 to	 pay	 for	 all	 GAL	 fees	
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generated	throughout	the	proceedings.3		Third,	the	nature	of	the	sanction—the	

court’s	source	of	authority—is	also	unclear.		We	cannot	tell,	from	the	order	or	

the	transcript	of	the	hearing,	whether	the	court	intended	to	impose	the	sanction	

pursuant	to	its	contempt	power,	see	M.R.	Civ.	P.	66,	pursuant	to	its	“inherent	

authority	to	sanction	parties	.	.	.	for	abuse	of	the	litigation	process,”	see	Cimenian	

v.	 Lumb,	 2008	 ME	 107,	 ¶	 11,	 951	 A.2d	 817	 (quotation	 marks	 omitted),	 or	

pursuant	 to	 some	 other	 basis	 of	 authority.	 	 In	 any	 case,	 in	 order	 to	 protect	

Daniel’s	due	process	rights,	see,	e.g.,	Kirkpatrick	v.	City	of	Bangor,	1999	ME	73,	

¶	 15,	 728	 A.2d	 1268,	 the	 court	 should	 have	 afforded	 him	 an	 opportunity	 to	

respond	to	the	evidence	against	him.		See	M.R.	Civ.	P.	66(c),	(d)	(setting	forth	

procedures,	 including	 notice	 and	 hearing,	 that	 apply	 when	 contempt	 occurs	

outside	the	presence	of	the	court);	Guardianship	of	Isabella	Ard,	2017	ME	12,	

¶¶	17-24,	---	A.3d	---	(vacating	a	sanction	sounding	in	contempt	where	the	court	

did	not	implement	the	process	required	by	M.R.	Civ.	P.	66);	see	also	Chambers	v.	

NASCO,	Inc.,	501	U.S.	32,	57	(1991)	(“As	long	as	a	party	receives	an	appropriate	

hearing,	 .	 .	 .	 the	 party	 may	 be	 sanctioned	 [pursuant	 to	 the	 court’s	 inherent	

authority]	 for	 abuses	 of	 process	 occurring	 beyond	 the	 courtroom	 .	 .	 .	 .”	

(emphasis	added)).	




   3		The	issue	is	further	confused	by	the	fact	that	the	order	appointing	the	GAL	provided	that	Daniel	

was	to	be	responsible	for	one	hundred	percent	of	the	GAL’s	fees.	
8	

	        [¶14]		In	sum,	although	we	otherwise	dismiss	the	appeal,	we	vacate	the	

portion	of	the	court’s	order	relating	to	the	payment	of	GAL	fees	and	remand	the	

matter	for	the	court	to	reconsider	that	issue.		In	addition,	we	vacate	any	stay	

currently	in	effect	in	the	Probate	Court	arising	out	of	this	appeal	and	order	the	

immediate	return	of	the	case	file	to	the	Probate	Court	with	the	directive	that	it	

take	action	regarding	Alisha’s	care.		Finally,	we	deny	Daniel’s	motion	for	relief	

from	judgment	presented	to	us.	

         The	entry	is:	

                            Order	 vacated	 with	 respect	 to	 the	 payment	 of	
                            GAL	 fees	 and	 remanded	 for	 reconsideration	 of	
                            that	 issue.	 	 In	 all	 other	 respects,	 appeal	
                            dismissed.	 	 Any	 stay	 arising	 out	 of	 the	 appeal	
                            vacated.		Case	file	to	be	returned	immediately	to	
                            the	Probate	Court	with	the	directive	that	it	take	
                            expedited	action	regarding	Alisha’s	care.		Motion	
                            for	 relief	 from	 judgment	 denied.	 	 Decision	 to	
                            certify	 immediately.	 MANDATE	 TO	 ISSUE	
                            IMMEDIATELY.			
	
	     	     	      	      	      	
	
David	 P.	 Mooney,	 Esq.	 (orally),	 Portsmouth,	 New	 Hampshire,	 for	 appellant	
Daniel	Golodner	
	
Dana	E.	Prescott,	Esq.	(orally),	Prescott	Jamieson	Murphy	Law	Group,	LLC,	Saco,	
for	appellee	Gail	Golodner	
	
	
York	County	Probate	Court	docket	number	2010-0676(1)	
FOR	CLERK	REFERENCE	ONLY	
	
