MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision:    2015 ME 14
Docket:      And-14-301
Submitted
  On Briefs: December 18, 2014
Decided:     February 10, 2015

Panel:          SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.



                                  TIMOTHY TRUE et al.

                                             v.

                                 SHEENA HARMON et al.

SAUFLEY, C.J.

         [¶1]     Timothy and Philippa True, the paternal grandparents of Sheena

Harmon’s four-year-old son, appeal from a judgment entered in the District Court

(Lewiston, Beliveau, J.) in which the court awarded Harmon attorney fees of

$1,506.67 after dismissing the Trues’ motion to modify a grandparent visitation

order. The Trues contend that the court erred in awarding attorney fees without

providing them “an opportunity for hearing,” as required by 19-A M.R.S. § 105(1)

(2014). We vacate the judgment and remand for further proceedings.

                                    I. BACKGROUND

         [¶2] In 2011, Timothy and Philippa True petitioned the District Court to

establish visitation rights with their grandson pursuant to the Grandparents

Visitation Act, 19-A M.R.S. §§ 1801-1805 (2014).               An order setting out a
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visitation schedule was agreed upon by the parties and entered by the court. The

Trues moved to modify the visitation order in early 2014 after the parents moved

to Kentucky. Harmon opposed the Trues’ motion to modify, filed a cross-motion

to modify, and moved to dismiss the matter for lack of jurisdiction. All parties

requested attorney fees.

        [¶3] Following a case management conference, the family law magistrate

(Woodman, M.) entered a case management order that focused on the jurisdictional

issue and ordered the parties “to submit argument or supplemental filings within

14 days. Judge to take under advisement.” The order identified the only issue

remaining in dispute as “Rights of contact.” The box next to “Attorney’s Fees”

was not checked.        The court scheduled a status conference to be held if the

“jurisdiction issue” was resolved.            Harmon then submitted an affidavit and

supporting materials to document the parents’ residence in Kentucky and their

divorce proceedings pending in that state.

        [¶4] As anticipated by the case management order, the court (Beliveau, J.)

acted on the challenge related to jurisdiction without further hearing. The court

granted the motion to dismiss the matter because both parents had moved to

Kentucky and the court therefore lacked subject matter jurisdiction.1                         See

    1
      Although the court never explicitly ruled on Harmon’s cross-motion to modify, the court’s
conclusion that it lacked subject matter jurisdiction functioned as a final judgment on all pending
motions.
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19-A M.R.S. § 1746(1)(B) (2014) (stating that, with some exceptions not

applicable here, “a court of this State that has made a child custody determination

. . . has exclusive, continuing jurisdiction over the determination until . . . [a] court

of this State or a court of another state determines that the child, the child’s parents

and any person acting as a parent do not presently reside in this State”).

        [¶5] At the end of its order dismissing the matter for lack of jurisdiction,

and without having heard from the parties regarding attorney fees, the court

ordered the Trues to pay Harmon’s reasonable attorney fees and costs.2 The Trues

moved for clarification of the court’s authority to award attorney fees in the matter.

Harmon responded to the motion and cited to 19-A M.R.S. § 105(1) as the basis

for the attorney fee award. Her counsel also filed an affidavit setting forth her

attorney fees and costs. The Trues filed a supplement to their motion arguing that

section 105(1) did not authorize an attorney fee award because no hearing had been

held on attorney fees as the statute requires, and the court therefore had no

evidence to support any determination of the parties’ relative financial abilities to

absorb the costs of litigation. See Ellis v. Ellis, 2008 ME 191, ¶ 26, 962 A.2d 328.



   2
      Harmon did not alert the court, before it reached its decision, that the case management order failed
to include her claim for attorney fees as a pending issue. The Trues did not argue to the trial court, and do
not argue to us, that Harmon may have thereby waived her claim for attorney fees. Any issue regarding
waiver is therefore abandoned and not preserved, and we do not address the issue in this opinion. See
Holland v. Sebunya, 2000 ME 160, ¶ 9 n.6, 759 A.2d 205; see also Berg v. Bragdon, 1997 ME 129, ¶ 9,
695 A.2d 1212.
4

      [¶6] The court entered an additional order in which it stated that it was

awarding Harmon reasonable and necessary attorney fees and costs of $1,506.67

pursuant to section 105(1). It then denied the Trues’ motion for clarification,

finding that the parties had been afforded the opportunity to be heard on the issue

of attorney fees because the case management order indicated that the matter

would be decided through supplemental filings of the parties, not through a

hearing. The court therefore determined that, although the parties did not submit

any written materials with respect to their relative financial abilities to pay for

attorney fees and costs, they had been given the opportunity to do so. The court

ordered the Trues to pay $1,506.67 in attorney fees and costs consistent with its

earlier order.   The Trues appealed.     See 14 M.R.S. § 1901(1) (2014); M.R.

App. P. 2.

                                II. DISCUSSION

      [¶7] “We review the court’s authority to award attorney fees de novo.”

Kilroy v. Ne. Sunspaces, Inc., 2007 ME 119, ¶ 6, 930 A.2d 1060. Pursuant to

19-A M.R.S. § 105(1), in actions brought pursuant to Title 19-A, “including

actions to modify or enforce existing orders, the court may, after an opportunity

for hearing, order a party, including a party in interest, to pay another party or

another party’s attorney reasonable attorney’s fees, including costs, for

participation in the proceedings.” (Emphasis added.) A court “may order one
                                                                                       5

party to pay the other’s attorney fees based on the parties’ relative financial ability

to pay the costs of litigation as long as the award is ultimately fair under the

totality of the circumstances.” Ellis, 2008 ME 191, ¶ 26, 962 A.2d 328 (quotation

marks omitted).

      [¶8] The Trues do not dispute the reasonableness of the fees claimed or the

rate charged. Thus the only question on appeal is whether the court afforded the

parties the statutorily required opportunity to be heard regarding their relative

abilities to absorb the attorney fees and costs associated with litigating the matter.

See id.

      [¶9]    The court referred to the magistrate’s case management order in

support of its determinations that the parties had been afforded the opportunity for

a hearing on attorney fees and that they had agreed to submit all issues to the court

on the papers. The case management order did not, however, indicate that attorney

fees were an issue for consideration by the court through the paper submissions.

Nor did it indicate a process for determining the reasonableness of the fees or the

parties’ relative financial abilities to pay. In short, it is not evident from the record

that either party was on notice that the decision on the paper submissions would

address any issues other than the court’s jurisdiction.

      [¶10]    Thus, contrary to the court’s determination, the record does not

establish that the parties were afforded the statutorily required opportunity to be
6

heard on the issue of attorney fees. Because the court lacked the authority to

award attorney fees without affording the parties that opportunity, we must vacate

the judgment and remand for further proceedings. See 19-A M.R.S. § 105(1); see

also Thorne v. Leask, 2004 ME 145, ¶ 8, 861 A.2d 690 (holding that “parties must

be afforded an opportunity to be heard” on disputed matters). On remand, if the

court decides to award attorney fees and costs to either party, it may also consider

the attorney fees and costs arising from the appeal. See 19-A M.R.S. § 105(1)

(authorizing the award of “reasonable attorney’s fees, including costs, for

participation in the proceedings”).

        The entry is:

                           Judgment vacated.        Remanded for       further
                           proceedings consistent with this opinion.



On the briefs:

        Michael L. Dubois, Esq., Lewiston, for appellants Timothy and
        Phillipa True

        Elyse B. Segovias, Esq., Lewiston, for appellee Sheena Harman



Lewiston District Court docket number FM-2011-57
FOR CLERK REFERENCE ONLY
