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T. Richards v. L. Bruce
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Decision: 1997 ME 61
Docket: CUM-95-615
Submitted on briefs October 16, 1997
Decided April 3, 1997



	[¶1]  Lorne Bruce appeals from the judgment entered in the Superior
Court (Cumberland County, Wheeler, J., sitting by designation{1}) modifying a
divorce judgment to allow Bruce's ex-wife, Tammy Eason Richards, to move
from Maine to North Carolina with their son, David.  Finding no error, we
affirm the judgment.
	[¶2]  Bruce and Richards were divorced in July of 1992.  By the terms
of the divorce judgment, they were awarded joint custody of their child,
David, whose primary residence was with Richards.  Richards remarried
and, with her new husband, planned to move from Maine to North Carolina. 
In June of 1995, Bruce filed a motion in the Superior Court to prevent
Richards from moving to North Carolina with David.  After a two day hearing,
the court issued an order modifying the divorce judgment and allowing
Richards and David to move to North Carolina.  Although the court found
that David was "too young to have or express a meaningful preference" for
one parent over the other, the court concluded that David "has a strong,
loving relationship with both of his parents."  The court ordered that David
would live with Richards in North Carolina during the school year and with
Bruce in Maine during the summer months.  Bruce appeals from this
Discussion Notes of the Guardian ad Litem
	[¶3]  	At the hearing on the modification of the divorce decree, a
guardian ad litem for David, appointed by the court at the suggestion of both
parties, testified as to David's best interests.  Following the guardian's
testimony, the court admitted the guardian's report, which had been
prepared pursuant to 19 M.R.S.A. § 752-A (4) (Supp. 1996).{2}  Bruce asked
the court to grant him access to the notes compiled by the guardian ad litem
in preparing his report.  The court denied Bruce's request based on its
original order appointing the guardian that provided the guardian's notes
"shall be inaccessible to either party."  Although the guardian's notes were
not admitted in evidence, Bruce argues that his inability to review the notes
denied him information that would have revealed the prejudice of witnesses
interviewed by the guardian ad litem.  Because Bruce made a timely
objection to the court's denial of his motion, "we review the entire record
to determine whether the trial court's ruling affected a substantial right of
the objecting party."  Shaw v. Bolduc, 658 A.2d 229, 235 (Me. 1995); M.R.
Civ. P. 61.
	[¶4]  Bruce's argument is unavailing.  The court's order appointing the
guardian ad litem, approved by both Bruce and Richards, contained a
specific provision denying both parties access to the guardian's notes:  "It is
further ordered that the Guardian ad Litem shall keep a file which, due to
the guardian ad litem's quasi-judicial status, shall be inaccessible to either
party."{3}   In response to questioning from the court, the guardian stated that
he relied on the confidentiality provision of the order appointing him to
assure witnesses that they could speak candidly with him.
	[¶5]  In an effort to respond to Bruce's concerns, the court offered to
review the guardian's notes in camera to evaluate their relevance to the
hearing.  Bruce objected to such a review.  The court then offered to hear
the guardian's testimony before ruling on the admissibility of his notes.  The
court gave Bruce ample opportunity to examine the guardian about the
information he gathered for his report, including the potential bias of any
witnesses with whom the guardian spoke.  Bruce has failed to demonstrate
that the trial court's refusal to allow access to the guardian's notes affected a
substantial right.  Shaw, 658 A.2d at 235.
The Late Arrival of the Guardian Ad Litem
	[¶6]  On the first morning of the hearing, the guardian ad litem was
not present in the courtroom.{4}  Bruce asked the court for a recess until such
time as the guardian was present in the courtroom, arguing that the
guardian needed to hear the testimony of other witnesses at the proceeding
before testifying himself.  The guardian arrived later that afternoon and
	[¶7]  The court was not obligated to recess the hearing until the
guardian was present, and Bruce could not demonstrate any reason why the
hearing had to be delayed until the guardian arrived.   The guardian was
present at the afternoon session of the hearing, and Bruce had a full
opportunity to examine him.  No harm resulted from the guardian's delayed
arrival at the hearing.
	[¶8]  Bruce, who represented himself before the court, also argues
that the court erred in holding him to the same standard as an attorney in
refusing to delay the hearing because he had not subpoenaed the guardian ad
litem to be present in court at a certain time.  We have long recognized the
principle that pro se litigants are held to the same standards as represented
litigants.  Dufort v. Bangs, 644 A.2d 6, 7 (Me. 1994) (citing Uotinen v. Hall,
636 A.2d 991, 992 (Me. 1994)).  Neither civil nor criminal litigants are
afforded any special consideration because of their pro se status.{5}  New
England Whitewater Center, Inc. v. Department of Inland Fisheries and
Wildlife, 550 A.2d 56, 60 (Me. 1988).
Finding of Spousal Abuse
	[¶9]  Bruce contends that the court's finding that there was mutual
physical and emotional abuse on the part of Bruce and Richards was based
impermissibly on hearsay from the guardian ad litem's report.  He also
argues that the issue of Bruce's abuse of Richards was res judicata after three
previous protection from abuse orders sought by Richards against Bruce
were all denied.
	[¶10]  The court may appoint a guardian ad litem "when the court has
reason for special concern as to the welfare of a minor child."  19 M.R.S.A. §
752-A (1) (Supp. 1996).  The guardian serves as the court's agent and
prepares a report for the court detailing his or her findings.  19 M.R.S.A. §
752-A (4) and (5).  The guardian ad litem's duties can include interviewing,
subpoenaing, and examining witnesses and parties, reviewing mental health
and other medical records, and procuring counseling and evaluation services
for the child and parents.  The guardian's report offers the court a
compendium of information that aids the court in determining the best
interests of the child.  Section 752-A (4) specifically allows the court to
admit the guardian's written report as long as the parties have been
provided with an opportunity to examine the report in advance of the
hearing.{6}  In this case, the guardian's report was properly admitted.
	[¶11]  Bruce's res judicata argument is also unavailing.  The principle
of res judicata bars relitigation of a cause of action between the same parties
or their privies once a valid final judgment has been entered in an earlier
suit on the same cause of action.  Beegan v. Schmidt, 451 A.2d 642, 644
(Me. 1982).  The protection from abuse cases and the divorce judgment
modification involved the same parties but not the same cause of action. 
Gurski v. Culpovich, 540 A.2d 764, 765-66 (Me. 1988).
	The entry is:
		Judgment affirmed.
Attorney for plaintiff: John G. Richardson, Esq. Troubh, Heisler & Piampiano, P.A. P O Box 9711 Portland, ME 04104-2339 For defendant: Lorne Bruce P O Box 311 South Casco, ME 04077
FOOTNOTES******************************** {1} 4 M.R.S.A. § 157-C (1989). {2} 19 M.R.S.A. § 752-A (4) provides that a "written report of a guardian ad litem may be admitted as evidence in the proceeding for which the guardian was appointed only if the party seeking the admission of the report has furnished a copy to all parties at least 14 days prior to the hearing. The report may not be admitted as evidence without the testimony of the guardian ad litem if a party objects to the admittance of the report at least 7 days prior to the hearing." {3} The guardian ad litem serves as the court's agent for purposes of determining the best interest of the child and has "quasi-judicial immunity for acts performed within the scope of the duties of the guardian ad litem." 19 M.R.S.A. § 752-A (5) (Supp. 1996). As to the role of the guardian, we have held : "The duty of a court appointed guardian ad litem of a minor child in a divorce case is to the court, and the scope of that duty lies within the parameters of the order of appointment." Gerber v. Peters, 584 A.2d 605, 607 (Me. 1990). {4} The record reveals that the guardian had a scheduling conflict that prevented him from arriving for the hearing until the afternoon. {5} This doctrine does not prevent the court from explaining procedures to the pro se litigant. In this case, the court assisted Bruce several times by explaining certain procedures that Bruce did not understand, such as the process of admitting exhibits in evidence. {6} Although the record reflects that Bruce did not object on the basis of the guardian's failure to comply with the specific time requirements of § 752-A (4), we note that the guardian did not furnish a copy of his report to all parties at least 14 days prior to the hearing. We further note that Bruce and Richards jointly agreed to the appointment of a guardian, and the court approved the appointment on July 13, 1995, only five weeks before the August 21 hearing. The guardian completed his report on August 14, 1995, only 7 days before the hearing.