MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:   2014 ME 53
Docket:     Cum-13-200
Submitted
 On Briefs: February 11, 2014
Decided:    April 3, 2014

Panel:          SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
                JABAR, JJ.


                              ROBIN S. HUTCHINSON

                                           v.

                          JENNIE E. (HUTCHINSON) COBB

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
2

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 motion to modify. Both Hutchinson and Cobb

appeared pro se.

        [¶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


    1
     A review of the docket record in this case shows that the parties have filed six motions for contempt,
five motions to modify, two motions to change venue, and a motion to recuse three different judges.
    2
      Hutchinson objected generally to his child being called as a witness, but he did not object to the
in-chambers procedure itself. When the court asked Hutchinson to state the grounds for his objection, he
stated: “Based on my [child] has been put through enough on frivolous things.”
                                                                                                 3

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.




  3
      The court later reported that the parties’ proposed questions were asked “in substance.”
4

                                          II. DISCUSSION

        [¶6] The trial court has broad discretion in controlling the presentation of

evidence. See M.R. Evid. 611(a). A court’s control over where a witness may be

examined, however, is sharply limited by M.R. Civ. P. 43(a), which provides that

“the testimony of witnesses shall be taken in open court, unless a statute, these

rules or the Rules of Evidence provide otherwise.” (Emphasis added.) This rule,

Hutchinson argues, was violated when the court took his child’s testimony in

chambers instead of in the courtroom.4

        [¶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 based on

secret bias or partiality. Richmond Newspapers, 448 U.S. at 569-70. Indeed, many

    4
       We note that the term “open court” in this context is not necessarily limited to the four walls of a
traditional courtroom or some other specific location. Proceedings may take place in a variety of
locations as special needs may require and still satisfy the open-court requirement as long as the locations
are consistent with traditional notions of open-court proceedings: the proceeding must be accessible to the
parties and the public, and the proceedings ordinarily must take place on the record as provided by
applicable rules and law.
                                                                                    5

of the cornerstones of the Anglo-American judicial system are founded upon open

and accessible public proceedings, and without open-court testimony, many

important procedural processes, including cross-examination, are either limited or

eliminated. See Jusseaume v. Ducatt, 2011 ME 43, ¶ 13, 15 A.3d 714 (“[T]he right

to cross-examine adverse witnesses . . . is constitutionally required in almost every

setting where important decisions turn on questions of fact.” (quotation marks

omitted)).

      [¶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. Resnick 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.,

Ala. R. Civ. P. 43(a) (“In all trials the testimony of witnesses shall be taken orally

in open court . . . .”); M.R. Civ. P. 43(a) (“[T]he testimony of witnesses shall be

taken in open court . . . .”); Vt. R. Civ. P. 43(a) (In all trials the testimony of

witnesses shall be taken orally in open court . . . .”). The Federal Rules of Civil

Procedure impose a similar requirement. See Fed. R. Civ. P. 43.
6

          [¶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 M.R. Civ. P. 43’s clear requirement of

“open court” testimony.

          [¶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., Cal. Fam. Code § 7892 (West, Westlaw through Ch. 4 of

2014 Reg. Sess.) (allowing a child’s testimony to be taken in chambers if certain

circumstances exist); Ky. Rev. Stat. Ann. § 403.290 (West, Westlaw through 2013

Sess.) (allowing the court to interview a child in chambers to ascertain his or her

wishes). In Maine, 22 M.R.S. § 4007(2) (2013) permits, as an exception to M.R.

Civ. P. 43(a), child testimony to be taken in chambers with only the guardian

ad litem and counsel present, provided that the statements are a matter of record.5

Section 4007(2)’s application is limited to child protective proceedings, however,

and no other exception to Rule 43 exists that would allow in-chambers testimony

under the circumstances of this case.



    5
        Section 4007(2) provides:

          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.
                                                                                  7

      [¶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, 214 S.E.2d 551, 552 (Ga. 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., 689 N.W.2d 184, 189 (Neb. 2004) (same).           Others,

however, refuse to condone the practice.          See, e.g., Ex Parte Barryhill,

410 So. 2d 416, 418 (Ala. 1982) (“Nothing in American law allows private trials.

That custom went out with the abolishment of the Star Chamber, and the right to a

public trial . . . remains the fundamental law of our land.”); Raper v. Berrier,

97 S.E.2d. 782, 784 (N.C. 1957) (holding that it was error for the trial court to

interview a child witness in chambers). We agree with the latter approach. By

allowing the child in this case to be interviewed without either party present, the

court departed from the clear mandate of M.R. Civ. P. 43(a). We wholeheartedly

recognize the trial court’s commendable efforts to protect the child from facing her

parents in open court and possibly having to “pick sides,” but those efforts must be

considered in the context of litigants’ procedural rights and the requirements of

M.R. Civ. P. 43.

      [¶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
8

could have been conducted with the father’s consent); Berrier, 97 S.E.2d at 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 M.R.

Civ. P. 43(a), we will not now allow Hutchinson to challenge a process to which he

openly acquiesced.             See State v. Ford, 2013 ME 96, ¶ 16, 82 A.3d 75

(re-emphasizing that obvious-error review does not provide an opportunity for

review of a requested but failed trial strategy).7

        [¶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 M.R. Civ. P. 76H(c)).8 Testimony taken in

chambers is not excepted from this requirement.                           To the contrary, when a

    6
     As noted in footnote 2, although Hutchinson objected generally to his child testifying at trial, he
voiced no specific objection to the court’s intention to take the testimony in chambers without the parties
and counsel being present. Indeed, he proposed questions for the judge to ask in chambers.
    7
      We note that even when the parties consent and thus waive their objections to Rule 43, the best
practice is for the court to ensure that there are procedural protections in place similar to those required by
22 M.R.S. 4007(2): allowing attorneys for each party (if both parties are represented) to be present and
question the witness, and taking the child’s testimony on the record.
    8
    Me. Admin. Order JB-12-1 became effective on February 1, 2012. It was amended for the third time
on November 22, 2013.
                                                                                  9

proceeding is closed, the recording requirement becomes even more vital. See

Robison v. Lanford, 841 So. 2d 1119, 1124-25 (Miss. 2003) (“A trial court’s

refusal to make a record of a private conversation between the court and the child

left the father with no means of knowing the basis for any findings the court might

make.” (quotation marks omitted)).

      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 Hutchinson’s rights of contact, we cannot say that the error resulting from

the absence of a record was harmless. See Deutsche Nat’l. Bank Trust Co. v. Wilk,

2013 ME 79, ¶ 21, 76 A.3d 363. Therefore, we vacate the court’s order of

March 6, 2013, and remand this matter to the trial court for further proceedings

consistent with this opinion. We do not reach Hutchinson’s other arguments.

      The entry is:

                      Judgment vacated. Remanded to the District Court
                      for further proceedings consistent with this
                      opinion.
10

On the briefs:

        John Wm. Martin, Esq., The Law Offices of John Wm. Martin,
        Skowhegan, for appellant Robin S. Hutchinson

        Jennie Cobb, pro se appellee



Bridgton District Court docket number FM-2012-185
FOR CLERK REFERENCE ONLY
