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Coppersmith v. Coppersmith
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 165
Docket:	Cum-01-308	
Submitted
 on Briefs:	November 21, 2001
Decided:	December 10, 2001

Panel:SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, and ALEXANDER, JJ.



MICHAEL R. COPPERSMITH v. DEBRA J. COPPERSMITH

RUDMAN, J.

	[¶1]  Debra Coppersmith appeals from the judgment entered in the
Superior Court (Cumberland County, Crowley, J.) affirming the judgment
entered in the District Court (Portland, Perkins, A.R.J.) amending her
divorce decree to award residential custody of her son, Kevin, to his father. 
Debra contends, inter alia, that the District Court erred in finding that a
substantial change of circumstances warranted the change in residential
custody and erred in appointing and in relying on the report of the guardian
ad litem.  We disagree and affirm the judgment of the Superior Court
affirming the judgment of the District Court.
	[¶2]  Before a change is made in a child's residential custody, the
trial court must find a "substantial change of circumstances."  Stevens v.
Stevens, 448 A.2d 1366 (Me. 1982).  The purpose of a "substantial change"
requirement is to prevent disappointed parents from bringing repeated
motions to modify divorce decrees.  Without such a requirement, the
temptation is strong for the parent who is denied custody to bring repeated
motions, "shopping" for a judge who will revise the order.  Id.
	[¶3]  As we said in Villa v. Smith, 534 A.2d 1310, 1312 (Me. 1987),
the test of substantiality is the degree of significance the change has had in
affecting the children's interest.  In the instant situation, the court found
five factors that indicated a substantial change.  First, the parties agreed that
Kevin's sister, Jennifer, would live with their father; second, both children
had special education needs that the court found would be better met by
their father; third, Kevin missed his elder sister and would benefit from
being with her; fourth, the guardian ad litem in consultation with the
family's therapist recommended that both children live with their father;
and fifth, the Cumberland school system utilizes an education program
better suited to Kevin's needs.  Substantial evidence supported the change
in circumstances.  The trial court did not err in changing Kevin's residential
custody.
	[¶4]  Debra further claims that her procedural due process rights
were violated by the court's appointment of the guardian ad litem.  We
review the appointment of a guardian ad litem for abuse of discretion. 
Kinter v. Nichols, 1999 ME 11, ¶ 10, 722 A.2d 1274, 1277-78.  The
appointment of a guardian ad litem is appropriate when the "minor's
interests require separate representation."  Cyr v. Cyr, 432 A.2d 793, 798
(Me. 1981); cf., Miller v. Miller, 677 A.2d 64, 66-67 (Me. 1996).  The
Legislature has provided a list of eight factors for the court to consider in
determining whether to appoint a guardian ad litem.  Among these factors
are the "wishes of the parties," the "age of the child," "the contentiousness
of the hearing," and "the extent to which a guardian ad litem may assist in
providing information concerning the best interest of the child." 19-A
M.R.S.A. § 1507 (1) (West 1998).  Given the extensive history of conflict
between the parents and the age of Kevin (ten) and Jennifer's age (twelve),
the District Court needed an objective and independent investigation into
the interests and desires of the Coppersmiths' children, and did not abuse
its discretion in appointing a guardian ad litem.
	[¶5]  Debra asserts that the guardian ad litem failed to provide a copy
of the guardian ad litem report fourteen days before the hearing, as required
under the statute. 19-A M.R.S.A § 1507 (5) (West 1998).  Debra gave the
District Court no indication that the late arrival of the guardian ad litem's
report would adversely affect her ability to continue with the hearing; she
never moved for a continuance nor objected to the testimony of the guardian
ad litem at the first hearing.  The hearing, however, was continued and did
not resume for another two and a half months.  Debra cross-examined the
guardian ad litem at both hearings.  By her actions, Debra has failed to
preserve any objection to the admission of the guardian ad litem's report.
	[¶6]  Debra further asserts that the court denied her Due Process
rights by excluding her from a conference in chambers and by not returning
from chambers and putting agreements and instructions to the guardian ad
litem on the record.  Debra Coppersmith is held to the strategic decisions
and omissions of her attorney.  Cutillo v. Gerstel, 477 A.2d 750, 752 (Me.
1984).  It was for Debra's attorney to insist that agreements get recorded on
the record.  M.R. Civ. P. 43 (e).
	[¶7]  Debra argues that the District Court's decision to end the
hearings without closing arguments denied her procedural due process
rights.  The Maine Rules of Civil Procedure provide that a court may in its
discretion hear argument, but this provision does not provide parties the
opportunity to argue as a matter of right.  M.R. Civ. P. 51(a) ("Counsel for
each party shall be allowed such time for argument as the court shall
order").
	[¶8]  Debra also challenges the dismissal of her complaint against
the guardian ad litem by the Chief Judge of the District Court.  Although
Debra had every right to challenge the reliability of the guardian ad litem's
report and testimony during the hearing, and did so extensively, separate
complaints concerning performance of a guardian ad litem are governed by
the guardian ad litem rules.  See M.R. Guardian Ad Litem 4.  Her complaint
in this matter is still pending and is not properly before us in this appeal. 
Debra's other assertions do not merit response.
	The entry is.
Judgment affirmed.

Attorney for plaintiff: Barry T. Woods, Esq. Beagle & Ridge, LLC P O Box 7044 Portland, ME 04112 For defendant: Debra J. Coppersmith 14 Dunlap Road Gorham, ME 04038 Guardian ad Litem: Kenneth P. Altshuler, Esq. Childs, Rundlett, Fifield, Shumway & Altshuler, LLC 257 Deering Avenue Portland, ME 04101