MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 135 Docket: Aro

- 20

- 128 Submitted

On	B riefs : September	29,	2020 Decided: December	15,	2020 Panel: MEAD, GORMAN, JABAR , HUMPHREY,	HORTON , and CONNORS , JJ.

PAT	DOE

v. MARK	FORINO

HORTON ,	J. [¶1] Mark	Forino	appeals	from	a	judgment	of	the	District	Court	(Presque Isle, Dow,	J. )	entering	a	protection	from	abuse	order	against	him and	in	favor of
his	 and Pat	 Doe’s 1 two	 children after	 a	 hearing on	 Doe’s complaint	 for protection	from	abuse

. See 19

- A M.R.S. § 4007 (2020)

. He	argues	that	the	court
erred	when	it	denied	his	motion s (1) to	dismiss	Doe’s	complaint on	res	judicata grounds and	 (2)	 in	 limine	 to	 exclude	 evidence relating	 to	 the allegations in Doe’s previous complaint	against	him	for protection	from	abuse .		We	disagree and	affirm	the judgment

.

1 In	accordance	with	the	Violence	Against	Women	Act,	18	U.S.C.S.	§	2265(d)(3)	(LEXIS	through Pub.	L.	No.	116

- 1 93 ),	we	employ	the	pseudonym	“Pat	Doe”	for	the	plaintiff	in	this	matter.2 I.		BACKGROUND	AND	PROCEDURAL HISTORY [¶ 2 ] On	May	16,	2019,	Doe	filed	a	complaint	in	the	District	Court	seeking a	 protection	 from	 abuse	 order	 against	 Forino based	 on	 an	 incident	 that	 her complaint	allege d	had occurred on April	20,	2019

. Her	complaint	stated	that she	was	bringing	it individually	and	on	behalf	of	her	three	children ,	the	oldest of	whom	is	not	Forino’s	child .		The	court	( Daigle,	J. )	scheduled	a	final	hearing to be	held on June	20,	2019. Both	parties	appeared	pro	se ,	waived	their	rights	to a	hearing, and	agreed to	 the	e ntry	 of a	protection	 order	without	a	 finding	 of
abuse. The	 final	 order was	 in	 favor	 of only Doe	 and	 her	 oldest child and
excluded the two	younger	children. 2 [¶3] At	 the	 time the	court	issued	its	order ,	bail	conditions	in	a	related criminal	 case	 prohibite d	 Forino	 from	 having	 contact	 with	 the	 two	 younger children. Forino’s	bail	conditions	were	later	amended, however, pursuant	to an agreement	between him and	the	State , to	permit him	to	have contact	with	the younger	children. 3 After Doe learned that	 Forino ’s	bail	conditions	no	longer prohibited him from having contact with	the two younger	children, she brought

2 The	names	of	the	two younger children	are	not	included	in	the	docket	entry	for	the	final	hearing and	are	crossed	out	of	the	case	caption	at	the	top	of	the	final	order.

3 The	record	does	not	reflect	the	exact	date	on	which	the	amendment	to	Forino’s	bail conditions went	into	effect,	but	it	was	between	the	issuance	of	the	initial	protection	order	and the filing of	Doe’s second	complaint.3 a	 second	 complaint	 for	 protection	 from	 abuse	 against	 Forino	 on January 10, 2020.	 	 This	 second	 complaint	 was	 brought	 on	 behalf	 of	 the	 two younger	chil dren	only.		The	complaint	alleged	“the	same	incident	of	abuse	of [the	two	younger	children]” as was	alleged in	the	first	complaint. [¶4] The	court	( Dow, J. )	held	a	final	hearing	on	the second complaint	on
March 4, 2020.	 	 At	 the	 hearing,	 Forino	 moved	 to	 dismiss Doe’s	 second complaint on	the	ground	that	it	alleged	 the	same	facts	as	were	alleged	in	her first	complaint .		Forino	also	made	an	oral	motion	in	limine	to	“exclude	whatever the	allegations	were	in	the	underlyin g	order.”		The court denied	both	motions from	the	bench	and	proceeded	with	the	hearing. [¶ 5 ] At	the	conclusion	of	the	parties’ evidentiary	presentations,	Forino again	moved	 for	dismissal.		The	court	denied	 that	motion	 from	 the	bench	as well.	 	 Immediately following	 the	 hearing,	 the	 court	issued	 a	 protection	 from
abuse	 order in	 favor	 of the	 two	 younger	 children,	 finding that both	 children
were	abused as	that	term	is	defined	in 19

- A M.R.S.	§ 4002 (1) (2020) .		Forino moved for	further	findings	of	fact	and	conclusions	of	law. See M.R.	Civ.	P.	52 (b). The	court	issued	an	amended	order	stating	 that	“the	issue	of	whether	or	not Mark	 abused	 [the	 two	 younger	 children]	 had	 been	 raised	 but	 never adjudicated”	in	the	earlier	proceedi ng	and maintain ing	its	finding	of	abuse	with4 regard	 to	 the	 two	 younger	 children. The	 court	 issued	 a	 subsequent	 order

restat ing	its	finding	of	abuse.		Forino	timely	appealed	from the	judgment

. See
14 M.R.S.	§	1901 (2020) ; M.R.	App. P. 2B (c)(1 )

. II. DISCUSSION [¶ 6 ] Forino	invokes	the	doctrine	of	res	judicata	to	argue	that	the	denials of	his	motion	to	dismiss	and	motion	in	limine	were	improper. He relies	on both of the	 two	 distinct	legal	 theories constituting res	 judicata

— c laim	 preclusion (bar)	 and	 i ssue	 preclusion	 (collateral	 estoppel). See In	 re	 Child ren of
Bethmarie R. ,	2018	ME	96,	¶ 15,	189 A.3d 252. [¶ 7 ] Forino argues	 that the	 doctrine	 of claim	 preclusion	 required the

court	to dismiss	the second complaint	and that the doctrine	of issue	preclusion required the	court	to exclud e from	the second hearing any evidence related	to any	 of the	 allegations	 in Doe’s first	 complaint

. Because	 Forino’s	 issue preclusion	 argument encompasses	 every	 factual	 allegation raised	 in	 Doe’s
initial complai nt	 for protection	 from	 abuse rather	 than	 any	 specific factual
issue ,	it	is	the	functional	equivalent	of	his	claim	preclusion	argument	and	need not	be	addressed	separately.		In	addition,	Forino’s	issue	preclusion	argument5 was	 not	 developed	 to	 the	 extent tha t we	 require	 for	 appellate	 review. 4 Accordingly, only his	claim	preclusion	argument is the subject of our	de	novo
review. See	id

. ¶	14 (“ We	review	de	novo	a	determination	that	res judicata	does not	bar	litigation .”)

. [¶ 8 ] “Claim	preclusion	bars	relitigation	if:	(1)	the	same	parties	or	their privies	are	involved	in	both	actions;	(2)	a	valid	final	judgment	was	entered	in the	prior	action; and (3)	the	matters	presented	for	decision	in	the	second	action were,	 or	 might	 have	 been [,] litigated	 in	 the	 first	 action.” Macomber	 v.
Mac Q uinn

- Tweedie ,	 2003	 ME	 121,	 ¶	 22,	 834	 A.2d	 131	 (emphasis	 added) (quotation	marks	omitted) .		The	requirements	for	claim	preclusion	are stated
in	the conjunctive. See	id. Therefore,	the	failure	to	prove	a ny	individual	prong means	 that	 the	 second	 litigation	 is	 not	 barred. See Fiduciary	 Trust	 Co.	 v. Wheeler , 2016 ME 26, ¶ 14,	132	A.3d	1178	( holding	that claim	preclusion	was inapplicable	when	the	defendant	met	prongs	one	and	two	but	could	not	prove prong	thr ee).

4 In	making	his	issue	preclusion	argument,	Forino	claims	that	the	trial	court	erred	when	it	denied his	motion	to	“limit the	evidence	 to	any	 facts	alleged	 to	have	occurred	after	 the	entry”	of	 the	 first order.	 	 However , his	 argument	 is	 limited	 to	 a	 single	 paragraph	 and	 cites	 no	 authority	 for	 its proposition.		As	such,	we do not	reach	the	issue	and	we	affirm	the	trial	court’s denial	of	his	motion	in limine. See Me h lhorn	v.	Derby ,	2006	ME	110, ¶ 11,	905	A.2d	290	(“We	will	apply	the	settled	appellate rule	.	.	.	that	issues	adverted	to	in	a	perfunctory	manner,	unaccompanied	by	some	effort	at	developed argumentation,	are	deemed waived.”	(quotation	marks	omitted)).6 [¶ 9 ] Forino	 argues that the	 doctrine	 of claim	 preclusion	 bars	 Doe’s second	complaint	because	“two	separate	preliminary	orders	involving	the	same parties	and	 the	same	children	were	issued	by	 the	Presque	 Isle	District	Court [and]	[s]ubsequently ,	two final	orders	were	issued	as	well .” A d istrict c ourt’s finding	that	a	party	to	the	second	litigation	was	a	party	to,	or	in	privity	with , a party	to	the	first	litigation	is factual	and therefore reviewed	for	clear	error. See State	v.	Chan ,	2020	ME	91,	¶	13 ,	236	A.3d	471; In	re	M.M. ,	2014	ME 15, ¶	16,
86 A.3d 622

. [¶1 0 ] The	court’s	finding	that its two final orders	adjudicated	the	claims of	two distinct	groups	of	plaintiffs	is	amply	supported	by	the	record. The first final order	covers	only	Doe	and	her	oldest	daughter. Although Doe filed her first	complaint	individually	and	on	behalf	of	all	three	children and	did	receive	a temporary	 order	 protecting	 herself	 and	 all	 three	 children, the	 two	 younger
children	were functionally dismissed	as	parties	prior	to	judgment	because	they
were	not	included	in	the final order that	was entered	by agreement

— there	was no	finding	as	to	whether	or	not	they	had	been	abused.		Because a	party	whose claim	is	dismissed	prior	to	judgment	is	not	barred from	relitigating	the claim
unless	 the	dismissal	is e xplicitly with	prejudice , see M.R. Civ.	P. 41(a)(2), the first	 order	 was	 not	 a	 final	 judgment	 on	 the	 merits	 with	 respect	 to	 the	 two7 younger	children. See	In	re	Kaleb	D. , 2001	ME	55,	¶ 3	&	n.4,	769	A.2d 179

. In contrast,	Doe	brought	her	second	complaint only on	behalf	of	the two younger children and	not	on	her	own or	her	oldest	child’s behalf ,	and	the second final order adjudicates	the	claims	of only t he	two younger children. 5 [¶1 1 ] However,	e ven	when the	parties	to	the	second	action	differ	from those	in	 the	 first, claim	preclusion	may	 operate	as	a	bar if	 the	 parties in the second	action	were	in	privity	with	those in the	first. See	In	re	M.M. ,	2014	ME	15, ¶	 16 , 86	 A.3d	 622 .	 	 “Privity	 exists	 when	 two	 parties	 have	 a	 commonality	 of ownership,	 control,	 and	 interest	 in	 a	 proceeding.” Beal	 v. Allstate	 Ins.	 Co. , 2010 ME	20,	¶	20,	989	A.2d	733.		Privity	requires that the	parties’	interests	in
the first litigation	 be	 so	 intertwined as	 to “represent	 one	 single	 legal	 right.” Dep’t	of	Human	Servs. ex	rel.	Boulanger v.	Comeau ,	663 A.2d 46,	48	(Me. 1995) (citing Restatement	(Second)	of	Judgments §	41	(Am.	L.	Inst.	19 8 2) ) ( holding
that a mother	and	daughter	were	not	in	privity	when	 the	mother	settled	her paternity	action	against	a	prospective	father	because	that	settlement	could	be “contrary	 to	 the	 interests	 of her child”)

. B ut cf. Guziejka	 v. Desgranges ,

5 The	case	caption	for	the first order	states	that	Doe	appears	“individually	and	on	behalf	of”	her oldest	child.		The	second	order’s	caption	reads	only	that	Doe	appears	“on	behalf	of”	the	two	younger children. The doc ket	entries	 for	 the	 first complaint	 for protection	 from	abuse do include	 the	 two younger	children	as	parties	up	until	the	final	hearing	date, but the	only	parties	listed	in	the	docket entry	for	the	first	order,	and	on	the	order	itself , are	Doe,	her	oldest child,	and	Forino.8 571 A.2d 32,	34	(R.I.	1990)	(conc luding	that	the	divergent	interests	between	a mother	 and	 daughter	 blurred	 when	 the	 mother’s	 paternity	 suit	 was	 fully litigated,	 therefore	establishing	privity). Forino	cannot convincingly contend that	the	two	younger	children ’s	interest s in	being	protecte d	from	abuse were sufficiently	intertwined	with	Doe’s	interest in being	protected	from	abuse	such that	the	children’s	interests	were	in	privity	with	Doe’s , given	that	he	and	Doe agreed	to	sever	the	younger	children’s	interests	from	the	proceedings	on	the first	 complaint	 and to	 exclude	 them	 from	 th at order

. See Comeau ,	 663 A.2d

at 48

. [¶1 2 ] Because	 the two	younger children	were no	longer	parties	 to	 the

case as	of	the	entry	of the first final order and	were	not	in	privity with Doe	and the	oldest	child, Forino	fails	to	meet his	burden	on the	first	prong	of	the	claim preclusion	 analysis , and	 the	 court therefore correctly	 denied	 his	 motion	 to
dismiss

. III. CONCLUSION [¶1 3 ] We have cautioned	 against a strict and	 sweeping application	 of

res judicata	 principles in cases	involving	 children

. See,	 e.g. , In	 re	 Chil d ren of
Melissa F. ,	 2018	 ME	 110,	 ¶	 7,	 191 A.3d 348	 (echoing	 that courts should	 be
cautious in	applying	res	judicata	to	termination	of	parental	rights	proceedings);9 In	 re	 Child ren of	 Bethmarie	 R. ,	 2018 ME	 96,	 ¶	 15 , 189	 A.3d	 252 (jeopardy proceedings ); Pearson	v.	Wendell ,	2015 ME 13 6, ¶ 2 4 ,	125	A.3d	1149	( parental rights	and	responsibilities proceedings); Guardianship	of	Jewel	M

. ,	2010	ME	80, ¶	 41 , 2	 A.3d	 301 ( guardianship proceedings). In Jewel	 M. we	 said that

“ [p] rinciples	of	res	judicata	must	be applied	with	caution	in	domestic	relations

cases , as	new	developments	often	inform	decisions	a s	 to	what	may	be	in	 the best	interest	of	a	child.” Id

. 6 [¶1 4 ] This	case	illustrates	the	need	for	such	caution

. It	can	be	inferred that	 Doe	 agreed	 to	 the	 exclusion	 of	 the	 two	 younger	 children	 from	 the	 first order	 at	 least	 in	 part	 because	 the	 no

- contact	 condition	 in	 Forino’s	 bail conditions	at	the	time	obviated	the	need	for	a	separate	order	of	protection	from
abuse	r egarding	the	children. Thus,	t he subsequent change	in	bail	conditions changed	 the dynamic among t he	 children ,	 Doe,	 and	 Forino

. If	 Doe’s	 first complaint	had	been	litigated	on	its	merits	as	to	Doe	individually	and	on	behalf of all three	children,	our	view might	be	different. See In	re	M.M. ,	2014	ME	15, ¶ 18 , 86	 A.3d	 622 (holding that relitigation	 of a previously	 alleged claim	 of

6 A	child	protection	statute	implements	this	principle	in	providing	that	a	court	must	consider	and act	on	a	child	protection	petition “ regardless	of	other	decrees	regarding	a	child ’ s	care	and	custody. ” See 22	M.R.S.	§	4031(3)	(2020); In	re	Robin	T. ,	65 1 A.2d	337,	339	(Me.	1994)	(holding	that	res	judicata and	issue	preclusion	were	not	applicable	in	a	child	protection	case).10 abuse	 was	 barred	 by	 res	 judicata	 because	 the	 validity	 of the	 p laintiff’s allegations	had	been	fully	adjudicated	and	resolved	in prior	hearings). [¶1 5 ] Given	frequently	changing family circumstances and the	summary nature	of	the procedure	on	complaints	for protection	from	abuse, the	need	for caution	in	applying	res	judicata	is	as	compelling	in cases	regarding protection from	abuse as	it	is	in	divorce,	child	protective , and	other	case	types	in	which the care	and	custody	of	children is determined. In	addition ,	res	judicata	should	not be	applied	in	a	manner	that	either	discourages	agreements	in	these	often	highly charged	cases	or	that creates	a	trap	for	the	parties,	many	of	them	pro	se,	who enter	into	such	agreements. The	entry	is: Judgment	affirmed.

Neil	J.	Pre n dergast,	Esq.,	Fort	Kent,	for	appellant	Mark	Forino Pat	Doe	did	not	file	a	br ief

Presque	Isle	District	Court	docket number	PA

- 2020

- 04 F OR C LERK R EFERENCE O NLY