MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2023 ME	50

Docket: Oxf-22-138

Submitted

On	Briefs: October	19,	2022

Decided: August	15,	2023

Panel: STANFILL,	C.J.,	and MEAD,	JABAR,	HORTON,	CONNORS,	LAWRENCE, and DOUGLAS,	JJ.*

NICHOLAS	J.	CAPELETY

v.

KYLA	R.	ESTES

JABAR,	J.

[¶1]	Nicholas	J.	Capelety	appeals	from	a	judgment	entered	by	the	District	

Court	 (South	Paris,	Ham-Thompson,	J.),	in	which	 the	court	allocated	parental	

rights	 regarding	 the parties’ child	 and	 granted	 primary	 residence	 to	Kyla	 R.	

Estes	and defined	rights	of	contact	to	Capelety.		See	14	M.R.S.	§	1901	(2023);	

19-A	M.R.S.	§	104(2023);	M.R.	App.	P.	2B(c)(2).		Capelety	contends	on	appeal	

that	 the	 court	 improperly	 restricted	 his	 ability	 to	 present	 his	 case	 by	

(1) imposing	 a	 time	limit	 on	 his	 trial	 presentation	that	 resulted	in	 his	 being	

unable to cross-examine	the	guardian	ad litem	(GAL), (2)	excluding	certain of	

*

		Although	Justice	Douglas	was	not	available	at	the	first	conference	at	which	the	Court	considered	

the	case	on	the	briefs,	he	was	a	sitting	Justice	qualified	to	act during	the	development	of	this	opinion

and	 participated	 in	 subsequent	 conferencing	 and	 the	 development	 of	 this	 opinion.	 	 See	 M.R.	

App. P. 12(a).
2

his	 proposed	 exhibits, (3)	 permitting	 certain	 testimony from	 the	 GAL, and

(4) denying	 his	 request	 to	 present	 a	 closing	 argument.	 	 He	 also	 challenges	

portions	of	the	court’s	judgment	as	unsupported	by	the	evidence.		We	conclude	

that	any error	was harmless	and	affirm	the	judgment.

I.		BACKGROUND

[¶2]		Capelety	and	Estes have	a child who	was	born	in	2015.		Capelety	

filed	 a	 complaint	 for	 determination	 of	 parentage,	 parental	 rights	 and	

responsibilities,	and	child	support	in	the	District	Court	on	September	9,	2020.		

On	Capelety’s	motion,	a	Family	Law	Magistrate	(Spooner,	M.)	appointed a	GAL.		

The	 GAL	 provided	 recommendations	 to	 the	 parties	 in	 January	 2021	 and	

submitted	a	final	report	in	July	2021.		On	May 28,	2021,	the	same	Family	Law	

Magistrate	issued	a pretrial	order	indicating	that	the	final	hearing of	the	case	

would	take	one	day.1		Neither	party	objected to	the	pretrial	order.		The	court

(Rumford,	Ham-Thompson, J.)	 held	the	final	 hearing on	 November	 16,	 2021.		

The	hearing	occurred	during	the	COVID-19 pandemic, and	therefore,	some	of	

the	parties	and	witnesses	appeared	by	video	or	phone.		

1		The	pretrial	order	scheduled	the	final	hearing	for	one day	and	indicated	that	Capelety	had	“+5”	

witnesses,	Estes	had	 “+4”	witnesses, and	 the	GAL	had	 “+1”	witness.		The	pretrial	 order	listed	 the	

following	issues	for	hearing:	(1)	parental	rights	and	responsibilities,	(2)	uninsured	medical	expenses,	

(3)	 primary	 residence,	 (4)	 tax	 benefits,	 (5)	 medical	 insurance,	 (6)	 rights	 of	 contact,	

(7) actual/imputed	income,	(8)	child	support,	and	(9)	attorney	fees.
3

[¶3]		Although	the	final	hearing was	scheduled	to	begin	at	8:30	a.m.,	it	did	

not	 start until	 9:26 a.m.	 because	 the	 parties,	 with	 the	 trial	 court’s	 approval,

chose	 to	 engage	 in	 a	 last-minute	 settlement	 discussion	 that	 proved	

unproductive.		

[¶4]		At	the	beginning	of	the	evidentiary	portion	of	the	hearing,	the	court	

explained,“The	time	will	be	equally	divided	between	the	parties,	with	the	Court	

reserving	one	hour	for	the	[GAL].		So	that’s	time	equally	divided	for	direct	and	

cross,	so	use	your	time	wisely.”		Neither	party	lodged	an	objection	or	asked	how	

many	hours	and	minutes	they would	be	allotted.

[¶5]	 	 Capelety	 presented four	 witnesses	 who	 were	 acquaintances or	

friends.	 	 Estes,	 who	 was	 representing	 herself,	 and	 the	 GAL	 were	 given	 the	

opportunity	 to	 cross-examine	 the	 first	 four	witnesses;	 Estes	 cross-examined	

three	of	the	witnesses, and	the	GAL	cross-examined	one	witness.		

[¶6]	 	 After	 Capelety	 had	 presented	 the	 testimony	 of	 his	 third	 witness,	

Estes	asked	the	court,	“How	much	time	with	the	witnesses	do	they	get,	and	then	

do	I	get .	.	.	?”		The	court	responded, “[I]t’s	evenly	divided	between	the	two	of	

you—I’m	keeping	track	of	the	time	right	now.		And	when	we	resume	at	1:00,	I’ll	

break	it	down	and	let	you	know	how	much	time	everyone	has.		But	clearly,	at	

this	time,	[Capelety]	is	using	the	bulk	of	the	time.”		
4

[¶7]	 	 The	 trial	 court	 then	 heard	 testimony	 from	 Capelety,	 whose

testimony	ended	just	before	the	noon	break.		At	this	point	in	the	proceedings,

the	trial	court	indicated	to	Capelety	that	he	had	used	up	all	his	time	and	would	

not	 be	 able	 to	 cross-examine	 Estes	 or	 the	 GAL.	 	 During	 Capelety’s	 direct	

testimony,	the	court	broke	in	to	note	for	his	attorney,

And	then	just	so	you’re	aware,	.	.	.	for	the	first	four	witnesses,	you	

used	 46 minutes.	 	 You’re	 now	 an	 hour	 seven	 minutes	 into	

Mr. Capelety.		And	so	you’re	closely	running	out	of	 time.		 I’m	not	

sure	how	long	the	lunch	break	is	going	to	be,	but	you’re	almost	out	

of	all	of	your	time,	if	I	include	[Estes’s]	time	and	[the	GAL’s]	time.

Capelety’s	 attorney	 responded,	 “Thank	 you,	 Your	 Honor.”	 	 After	 more	 of	

Capelety’s	direct	 testimony,	 the	court	stated,	“We	need	 to	wrap	 this	up.		You	

have	 used	 all	 of	 your	 time.”	 	 Capelety’s	 attorney	 finished	 her	 remaining	

questions	and	made	no	objection.		

[¶8]		The	court	then	explained	that	the	proceeding	would	break	for	lunch	

and	reiterated	that	Capelety	had	used	all	his	time	and	would	not	have	time	for	

additional	direct	or cross-examination unless	extra	time	remained	after	Estes	

and	 the	 GAL	 completed	 their	 presentations.	 	 Capelety’s	 attorney	 asked,	 “to	

clarify,	 do	 you	mean	 that	 there’s	no	 time	 for	 cross-examination?”	 	The	 court	

explained,

That’s	correct.		You’ve	used	all	of your	 time.		So	 your	abilities	 to	

cross-examine Ms. Estes,	 call	 any	 additional	 witnesses,	 or	
5

cross-examine	any	of	her	witnesses	is	over.		It’s	a	.	.	.	one-day	trial.		

And	theoretically,	both	sides	get	approximately	three	hours	by	the	

time	 everything	 starts and	 finishes.	 	 We	 took	 time	 to	 have	

settlement	 discussions.	 	 And	 then	 you	 factor	 in	 the	 recess,	 you	

factor	in	the	other	cross-examination.		Ms.	Estes	used	six	minutes.		

[The	GAL]	used	 four.		You’ve	had	 the	bulk	of	 the	 time	here.		And	

Ms. Estes	has	an	opportunity	to	cross-examine	your	client,	call	her	

own	witnesses	to	testify,	and	so	does	[the	GAL]. So	time	is	equally	

divided.		So	at	 this	 time,	you	have	run	out	of	 time,	depending	on	

how	the	rest	of	the	day	goes.

Capelety’s	attorney	 thanked	 the	court	and	made	no	objection.		Following	 the	

noon	time	break, Capelety	was	cross-examined	by	Estes	and	the	GAL.		

[¶9]	 	 Next,	 Estes	 testified	 and	 was	 cross-examined	 by	 the	 GAL	 only.		

During	 her	 testimony,	 Estes	testified,	in	 part,	 that	 Capelety	was	 “combative”	

and	 “aggressive”	and	 that	 he	 had	 perpetrated	 “emotional,	 physical,	 financial,	

[and]	sexual	abuse”	against	her.		After	Estes	finished	testifying	and	made	clear	

that	 she	 did	 not	 plan	 to	 present	 any	 witnesses	other	 than	 herself,	 the	 court	

again	addressed	the	timing	of	the	proceedings.		The	court	explained	that	Estes	

had thirty-nine	 minutes left	 and	 stated,	 “[T]hat	 also	 breaks	 into	 [the	 GAL’s]	

time,	 so	 I’m	 going	 to	 give	 [the	 GAL]	 as	 much	 time	 as	 she	 needs,	 and	 then	

Ms. Estes,	 I	 will	 give	 you	 the	 opportunity	 to	 cross-examine	 [the	 GAL]	 if	 you	

want.		Then	I	may	have	questions	for	[the	GAL].		And	after	all	that,	[Capelety’s	

attorney],	if	there	is	any	time	available	before	4,	I	will	give	you	an	opportunity	

to	cross-examine.”		Capelety	did	not	object.
6

[¶10]		At	the	beginning	of	the	GAL’s	testimony,	the	GAL	moved	to	admit	

her	final	report	in	evidence.		Capelety	objected	“to	the	extent	that	some	of	the	

[GAL]’s	recommendations”	were	based	on	the	report	or	communications	with	

Estes’s	 proposed	 expert	 witness,	 whose	 testimony	 and	 report	 the	 court	 had	

excluded	before	trial.		Capelety	also	objected	to	the	admission	of	the	report	on	

the	 ground	 that he	 would	 not	 be	 able	 to	 cross-examine	 the	 GAL.	 	 The	 GAL	

explained	 that	 the	 proposed	 expert	 had	 been	 identified	 as	 someone	 Estes	

wanted	the	GAL	to	speak	with	as	part	of	her	investigation.		The	GAL	noted	that	

she	had	received	and	reviewed	 the	proposed	expert’s	report—an	analysis	of	

the	parties’	 text	messages	 to	one	another—after	completing	her	own	report,	

and	that	it	had	not	affected	her	recommendations.		Over	Capelety’s	objection,	

the	 trial	 court	 admitted	 in	 evidence	 the	 GAL’s	 report,	 as	 well	 as several	

printouts	of	text	messages	between	the	parties.		

[¶11]		With	the	court’s	permission, the	GAL	initially	testified	in	narrative	

fashion	and	thereafter	responded	to	questions	from	the	trial	court.		In	total,	the	

GAL testified	 for	 nearly	 forty	 minutes.	 	 She	 testified,	 in	 part,	 about	 her	

observations	 of	 an	 unhealthy	 dynamic	 of	 power	 and	 control	 between	 the	

parties.		She	stated	that	Estes	had	“gone	into	detail	about .	.	. the	dynamics	of	

physical,	 sexual,	and	emotional	 violence	 that	was	 perpetrated	 on	 her	 during	
7

their	relationship.”		The	GAL	also	indicated	that	her	investigation	had	not	led	

her	to	believe	that	Capelety	or	the	child	were	victims	of	domestic	violence	and	

that	Capelety’s	testimony	to	that	effect	during	the	hearing	was	the	first	time	she	

had	 heard	 that	 allegation.	 	 She	 explained	 that	 she	 believed	 that	 Capelety’s	

testimony	 demonstrated	 that	 he	 had	 not	 “made	 much	 progress”	 despite	 his	

completion	of	a	 four-hour	domestic	violence	course	and	 that	perpetrators	of	

domestic	violence	“typically	.	.	.	deflect	onto	their	victims	when	they	are	at	.	.	.	a	

very	 early	 stage	 in—in	 not	 addressing—or	 taking	 accountability	 for	 their	

actions.”	 	 After	 Estes	 began	 cross-examining	 the	 GAL,	 Capelety	 raised	 an	

objection	to	the	GAL’s	testimony	about	domestic	violence	on	the	ground	that	

there	 was	 “nothing	 in . . . evidence	 .	 .	 .	 to	 support	 . . .	 these	 broad-stroke	

allegations”	and	that	Estes	did	not	testify	regarding	any	domestic	violence.		The	

court	overruled	the	objection	as	untimely	because	Capelety	did	not	object	when	

the	court	asked	the	GAL	questions	about	domestic	violence	between	the	parties.		

[¶12]	 	 The	 court	 then	 indicated	 that	 it	 was	 concluding	 the	 hearing	

because	it	was	4:00	p.m.	 Capelety’s	attorney	“put	an	objection	on	the	record	to	

not	being	able	to	cross-examine	witnesses.”		His	attorney	also	requested	that	

the	court	“reschedule	[the	matter]	for	even	just	an	hour	to	finalize”	it,	and	she	
8

requested	 that	 the	 court	 permit	 the	 parties	 to	 submit	 written	 closing	

arguments.		The	court	responded,

With	respect	to	your	request	for	rescheduling	this	case	for	an	hour,	

that	request	is	denied.		The	Court	was	clear	at	the	beginning	that	

the	time	would	be	equally	divided	between	the	parties.		How	the	

parties	chose	to	use	their	time	was	up	to	them.		The	Court	further	

cautioned	 you	as	well	as	Ms.	 Estes	as	 to	 the	 remaining	 time	and	

gave	you	a	warning	as	 to	running	out	of	 time,	so	no.		 In	 terms	of	

closing	argument,	the	Court	doesn’t	need	that.	.	.	.		With	respect	to	

your	 objection	 about	 not	 having	 the	 ability	 to	 cross-examine	

witnesses,	again,	you	put	on	your	case	.	.	.	and	chose	to	present	it	in	

a	manner	that	you	did,	and	I	don’t	know	what	witnesses	are	going	

to	say	or	what	information	is	going	to	be	provided,	but	the	Court	

doesn’t	have	unlimited	time.		The	pre-trial	order	said	one	hour [sic].		

The	parties	wanted	to	engage	in	some	discussions	initially,	and	this	

is	what	we	have.		And	as	it	worked	out,	[Capelety’s	attorney],	you	

still	had	more	time	than	Ms.	Estes.

Ultimately,	 the	hearing—excluding	recesses—was	 five	and	a	half	hours	long.		

Thus,	setting	aside	one	hour	of	 time	 for	 the	GAL,	Estes	and	Capelety	were	 to	

evenly	split	four	and	a	half	hours.		Capelety	used	roughly	two	hours	and	twenty	

minutes, Estes	 used	 roughly	 one	 hour	 and	 forty	 minutes,	 and	 the	 GAL	 used	

roughly	one	hour	and	fifteen	minutes.		

[¶13]		In	March	2022,	the	court	(South	Paris,	Ham-Thompson,	J.) issued	a	

judgment	determining	parental	rights	and	responsibilities.		The	court	found	the	

following	 facts,	which	are	supported	by	competent	evidence	admitted	during	

the	hearing,	see	Hatch	v.	Anderson,	2010	ME	94,	¶	12,	4	A.3d	904:
9

• Capelety	and	Estes	were	in	a	relationship	from 2014	to 2017.		They	have	

one	child	together,	who	was	born	in	May	2015	and	was	six	years	old	at	

the	time	of	the	hearing.		The	child	has	lived	with	Estes	since	birth.		The	

child	is	in	school	and	is	generally	healthy.		

• Both	 parties	 have	 difficulty	 communicating	 effectively.	 	 Estes	 has	 a	

greater	capacity	to	co-parent,	but	by	the	time	of	the	hearing,	the	parties	

had	shown	no	ability	to	co-parent	successfully	together.		Estes	frequently	

makes	last-minute	logistical	 changes	 to	 the	 visiting	 schedule;	 Capelety	

constantly	 and	 subtly	 derides	 Estes,	 cancels	 scheduled	 visitation	

frequently,	 and	 makes	 communication	 choices	 that	 indicate	 a	 greater	

concern	 for	 “maintaining	 control	 of	 the	 family	 dynamic”	 than	 for	 the	

child’s	emotional	well-being.		

• The	 parties’	 difficulty	 communicating	 and	 high	 level	 of	 conflict	 places	

strain	 on	 the	 child.	 	 The	 child’s	interests would	 be	 served	 best	 by	 one	

parent	having	most	of	the	decision-making	power.		

[¶14]		The	court	determined	that	“[t]he	evidence	compel[led	it]	to	choose	

a	parent	in	whom	to	vest	most	of	the	decision-making	power,	in	order	to	reduce	

conflict.”		The	court	order	allocated	parental	rights	and	responsibilities,	with	

both	parties	having	the	right	to	make	decisions	when	the	child	is	in	that	parent’s

care	but	with	Estes	having	 the	right	 to	make	 final	decisions	in	 the	event	of	a	

disagreement.		The	court	order awarded	to	Estes primary	residence	of	the	child	

and	awarded	to Capelety	rights	of	in-person	contact	on	one	evening	per	week	

and	 every	 other	 weekend	 from	 Saturday	 morning	 until	 Sunday	 evening,	

telephone	contact	“at	all	reasonable	times,”	and	video	chats	as	often as	twice	

per	 week.	 	 The	 court	 also	 made	 findings	 regarding	 the	 parties’	 incomes,	

completed	 a	 child	 support	 worksheet,	 and	 entered	 a	 child	 support	 order	
10

requiring	Capelety	to	pay	Estes	$714	per	month	in	child	support	until	the	child	

turns	eighteen.		

[¶15]		Capelety	timely	filed	a	motion	to	reconsider,	a	motion for	a	new	

trial,	and	a	motion	to amend	findings.		See M.R.	Civ.	P.	7(b)(5),	52(b),	59. The	

court	denied	his	motions	to	reconsider	and	for	a	new	trial	and,	in	large	part,	his	

motion	 for	amended	 findings.2	 	Capelety	 filed	a	 timely	 notice	 of	appeal.	 See

14 M.R.S.	§	1901;	19-A	M.R.S.	§	104;	M.R.	App. P. 2B(c)(2).		

II.		DISCUSSION

[¶16]	 	 The	 four	 issues	 that	 Capelety	 lists	 in	 his	 brief	 fall	 into	 two	

categories.	 	 First,	 Capelety contends	 that	 the	 court	 abused	 its	 discretion	 by	

(1) improperly	imposing	a	time limit	on	his	trial	presentation	that	prevented	

him	 from	 cross-examining	 Estes	 and	 the	 GAL,	 (2)	 excluding	 his	 proposed	

exhibits,	 (3)	 permitting	 the	 GAL	 to	 testify	 about	 domestic	 violence	 in	 the	

parties’	 relationship,	 and (4) denying	 his	 request	 to	 present	 a	 closing	

argument.3		Second,	Capelety contends	that	the	court	made	insufficient	factual	

2		The	court	granted	Capelety’s	request	to	amend	the	contact	schedule	to	expressly	state that	both	

parties	could	attend	the	child’s	school,	sports,	and	extracurricular	activities and events.		Estes	had	

also	filed	a	motion	for	reconsideration,	which	the	court	denied	as	untimely.		

3		Estes asserts that	Capelety failed	to	preserve	his	arguments	regarding the	court’s	time	limitation	

and	decision	to	admit	evidence	from	the	GAL	regarding	domestic	violence.		“An	issue	raised	for	the	

first	time	on	appeal	is	not	properly	preserved	for	appellate	review.” Foster	v.	Oral	Surgery	Assocs.,	

P.A.,	2008	ME	21,	¶	22,	940	A.2d	1102.		To	preserve	an	issue	for	appellate	review,	there	must	be “a	
11

findings	 to	 support	 its	 ultimate	 conclusions	 and	 abused	 its	 discretion	 in	

determining	 parental	 rights	 and	 responsibilities,	 primary	 residence,	 and	

parent-child	contact.		We	address	only	the	time	limitation	placed	upon	Capelety

and	the	effect	it	had	on	denying	his	opportunity	to	cross-examine	the	GAL,	as	

we	 are	 unpersuaded	 by	 Capelety’s	 additional	 contentions.

4	 	 See	 Richter	 v.	

Ercolini,	2010	ME	38,	¶	7	n.1,	994	A.2d	404.

A. Standard	of	Review

[¶17]	 	 We	 review	 a	 court’s	 management	 of	 a trial	 for	 an	 abuse	 of	

discretion.	 	 See	 Seabury-Peterson	 v.	 Jhamb,	 2011	 ME	 35,	 ¶	 14,	 15	 A.3d	 746

sufficient	basis	in	the	record	to	alert	the	trial	court	and	the	opposing	party	to	the	existence	of	the	

issue.”	 State	v.	Reeves,	2022	ME	10,	¶	35,	268	A.3d	281.		In	this	case,	Capelety	created	a	sufficient	

basis	in	the	record	to	alert	the	trial	court	and	Estes	that	he	took	issue with	the	court’s	time	limitation	

and	 decision	 to	 admit	 evidence	 from	 the	 GAL	 regarding	 domestic	 violence.	 	 Capelety	 expressly	

objected	to	the	court’s	time	limitation	when	he	requested	that	the	court	set	aside additional	time	to	

“finalize”	the	hearing	and	objected	to	the	court’s	ruling	that	he	could	not	cross-examine	Estes	and the	

GAL because	he	had	run	out	of	time.		He	also	expressly	requested	that	the	court	accept	written	closing	

arguments.		Further,	Capelety	expressly	objected to	the	GAL’s	testimony	about	domestic	violence on	

the	basis	that	the	testimony	assumed	facts	not	in	evidence.	Although the	court	deemed	this	objection	

untimely	 and	 overruled	 it, the	 issue	 of	 whether	 that	 ruling	 at	 the	 time	 constitutes an	 abuse	 of	

discretion	is	nonetheless preserved	for	our	review.

4		Capelety	makes two	other	arguments	that	we	decline	to	address.		First,	he	posits that	the	court	

erred	when	it stated that	 the	 GAL	 had	 a	 right	 to	 cross-examine	 witnesses	 and	 testify	 during	 the	

hearing.		We	decline	to	review	this	argument	because	Capelety	is	raising	it	for	the	first	time	on	appeal.		

See Foster,	2008	ME	21,	¶	22,	940	A.2d 1102 (“An	issue	 raised	 for	 the	 first	 time	on	appeal	is	not	

properly	preserved	for	appellate	review.”).		Second,	Capelety devotes a	single	sentence	towards	the	

end	 of	 his	 brief	 to	 an	 argument	 that	 the	 court’s	 determinations	 regarding	 child	 support	 and	 tax	

exemptions	were	unsupported	by	the	record.		We deem	that argument waived.		See,	e.g.,	Mehlhorn	v.	

Derby,	 2006	 ME	 110,	 ¶	 11,	 905	 A.2d	 290 (“[I]ssues	 adverted	 to	 in	 a	 perfunctory	 manner,	

unaccompanied	by	some	effort	at	developed	argumentation,	are	deemed	waived.”	(quotation	marks	

omitted)).
12

(explaining	 that	we	“review	a	court’s	denial	of	a	motion	 for	a	new	 trial	 for	a	

clear	 and	manifest	 abuse	 of	 discretion”	 (quotation	marks	 omitted));	 State	 v.	

Wyman,	2015	ME	1,	¶ 16,	107	A.3d	641 (explaining	that	we	will	uphold	a	trial	

court	decision	regarding	the	scope	and	manner	of	witness	examination	unless	

we	identify	an	abuse	of	discretion);	Moody	v.	Haymarket	Assocs.,	1999	ME	17,	

¶ 4,	723	A.2d	874 (explaining	that	we	review	evidentiary	rulings	for	an	abuse	

of	discretion).		

[¶18]	 	 A	 court	 abuses	 its	 discretion	 if	 it	 “exceed[s]	 the	 bounds	 of	 the	

reasonable	choices	available	to	it.”		Sager	v.	Town	of	Bowdoinham,	2004	ME	40,	

¶	11,	845	A.2d	567. We	note	 that	a determination	of	an	abuse	of	discretion	

“does	 not	 equate	 to	 a	 finding	 of	 bad faith,	 intentional	 wrongdoing,	 or	

misconduct	by	 the	judge.”		State	v.	Hussein,	2019	ME	74,	¶	17,	208	A.3d	752.		

“Trial	judges	are	called	upon	to	make	multiple,	swift	decisions—in	‘real’ time—

during	the	course	of	trials	and	hearings.”		Id.

[¶19]		Nonetheless,	“[a]	trial	court	ruling,	even	if	in	error,	will	not	result	

in	vacating	the	judgment	if	the	error	was	‘harmless’—that	is,	if	the	error	did	not	

result	 in	 substantial	 injustice	 or	 affect	 substantial	 rights.”	 	 Guardianship	 of	

David	P.,	2018	ME	151,	¶	12,	196	A.3d	896 (quotation	marks	omitted).		“The	

erroneous	admission	of	evidence	that	affects	a	party’s	constitutional	interests	
13

is	harmless	if	it	is	highly	probable	that	admission	of	the	evidence	did	not	affect	

the	 judgment.”	 	Banks v.	 Leary,	 2019 ME	 89,	 ¶	 19,	 209	 A.3d	 109 (quotation	

marks	 omitted).	 	 An	 error	is	harmless	if	 competent	 evidence	other	 than	 the	

challenged	evidence	supports the	court’s	findings.		See	In	re	Sarah	C.,	2004	ME	

152,	 ¶	 14,	 864	 A.2d	 162 (concluding	 that	 the	 error	in	 admitting	 a	witness’s	

testimony was	 harmless	 because	 the	 trial	 court’s	 conclusion relied	 on	 other	

facts	not	based	on	that	testimony).

B. Review	of	the	Court’s	Management	of	the	Trial

[¶20]	 “A	trial	court	has	broad	discretion	to	control	the	order	and	timing	

of	presentation	of	evidence	and	 to	set	and	enforce	reasonable	 time	limits	on	

testimonial	hearings.”		Dolliver	v.	Dolliver,	2001	ME	144,	¶	10,	782	A.2d	316.		

Indeed,	pursuant	to	Maine	Rule	of	Evidence	611(a),	“The	court	must	exercise	

reasonable	 control	 over	 the	 mode	 and	 order	 of	 examining	 witnesses	 and	

presenting	evidence .	.	.	.”		However, Rule	611(a)(1)	simultaneously	mandates	

that	 the	 court	 exercise	 reasonable	 control	 over	 the	 mode	 and	 order	 of	

presenting	evidence	and	witnesses	 to	 “[m]ake	 those	procedures	effective	 for	

determining	the	truth.”		The	truth-seeking	function	of	the	court	carries	special	

weight	in	a	matter	involving	a	 child’s	 best	interest	 because	 the court has	an

obligation to	“discern as a wise, affectionate and careful parent what custody
14

arrangements will further the child’s best interest.” Cloutier	v.	Lear, 1997	ME	

35,	¶	8,	691	A.2d	660 (quotation	marks omitted).

[¶21]	 	 Here,	 Capelety	 argues	 that	 he	 should	 have	 been	 allowed	 to	

cross-examine	 the	 GAL	 about	 her	 testimony	 and	 her report, to	 which	 he	

objected, and	 that	 the	 court’s	 failure	 to	 allow	 him	 to	do	 so	 was	 an	 abuse	 of	

discretion.		By	statute and	by	rule,	a	GAL’s	final	written	report	is	admissible	in	

evidence	and the	GAL is	subject	to	cross-examination regarding	the	report.		See	

19-A	 M.R.S.	 § 1507(5)	 (2023);	 M.R.G.A.L. 4(b)(7).

5 These	 provisions	 are	

premised	 on	 the	 notion	 that	 “the	 most	 effective	 challenge	 to	 the	 quality,	

completeness,	 or	 competence	 of	 a	 guardian	 ad	 litem’s	 work	 will	 be	

accomplished	through	cross-examination	of	the	GAL	at	trial.”		Banks,	2019	ME	

89,	 ¶	 12,	 209	 A.3d	 109 (quotation	 marks	 omitted).	 	 Further,	 “the	 right	 to	

cross-examine	the	GAL	about	the	report	has	constitutional	significance	because	

it	 is	 part	 of	 the	 process	 that	 serves	 to	 protect	 parents’ fundamental	 liberty	

interest	 to	 direct	 the	 care,	 custody,	 and	 control	 of	 their	 children.”	 	 Id. ¶ 13	

5		Title	19-A M.R.S. § 1507(5) (2023) provides, “A guardian ad litem shall make a final written

report to the parties and the court reasonably in advance of the hearing.		The report is admissible as

evidence and subject to cross-examination and rebuttal, whether or not objected to by a party.”		

Rule	 4(b)(7) of	 the	 Maine	 Rules	 for	 Guardians	 Ad	 Litem	 provides,	 “A guardian	 ad	 litem	 shall	

provide	a	copy	of	any	required	final	written	report	to	the	parties	and	the	court	at	least	14	days	in	

advance	of	the	final	hearing.	 The	report	is	admissible	as	evidence	and	subject	to	cross-examination	

and	rebuttal,	whether	or	not	objected	to	by	a	party.”
15

(quotation	marks	omitted).		 In	 the	context	of	 the	statutory	admissibility	of	a	

GAL’s	report,	due	process	requires	“the	right	to	introduce	evidence	and	present	

witnesses,	and	the	right	to	respond	to	claims	and	evidence.”		Id. (alteration and	

quotation	marks	omitted).		

[¶22]	 We	thus	are	faced	with	a	close	question	in	this	matter	about	how	a	

court	 may	 balance	 the	 need	 to	 manage	 a	 trial	 by	 enforcing	 time	 limits	 for	

presenting evidence	 against	 a	 party’s	 claimed need	 to present potentially	

relevant	testimony from	a	GAL to	aid	in	the	court in	its	truth-seeking	function.	

There	is	nothing wrong	with	time	limits	generally.		See	Dolliver,	2001	ME	144

¶ 10,	 782	 A.2d	 316	 (“We	 have	 previously	 approved	 judicial	 application	 of

evidence time	limits	.	.	.	.”)		Time limits	are	often	based,	as	they	were	here, on	

the	litigants’ estimate	of	the	time	necessary	to	present	their	cases,	and	it	is	not	

uncommon	for	an	attorney’s	estimate	to	be	inaccurate.	It	can	be	challenging for

a	trial	 judge	 to	 keep	 attorneys	 within	 their	 estimated	 time and	 maintain	 an	

orderly	court	schedule while	preserving	each	litigant’s	right	to	present	a	case

that	will allow	the	court	to	hear	all	evidence needed	to	help	the	court	determine	

the	facts. It	 is	 equally	 difficult	 for	 a	 trial	 attorney	 to	 anticipate	 how	 long	 a	

witness’s	direct	testimony	and	cross-examination	will	take.
16

[¶23]		Here,	the	parties	raised	no	objection	to	the	one-day	limit	set	by	the	

court	 in	 its	 pretrial	 order,	 and	 once	 set,	 such	 time	 limits	 should	 be	 fairly	

enforced.		See id.	¶	12 (holding that the	trial	court	“did	not	abuse	its	discretion	

in	refusing	to	.	.	.	extend	the	agreed	upon	time	limit”	because the	plaintiff	had	

“ample	opportunity” to	present	his	case).		The	court	here	repeatedly	reminded	

the	parties	of	the	time	constraints	throughout	the	trial	and	made	a	concerted

effort	to	move	the	case	forward	within	the	time	limits.

6		

[¶24]	 	 If	 time	 limits	 prove	 to	 be	 inaccurate	 or	 unreasonable,	

notwithstanding	 a	 court’s	 effort	 to	 move	 the	 case	 along,	 counsel	 have an	

obligation	 to	 object	in	a	 timely	 fashion	and	to	allow	 the	court	 to	exercise	its	

discretion.		See Maloney	v.	Brassfield,	251	P.3d	1097,	1105	 (Colo.	App.	2010)

(deeming	time	constraints	harmless	where	an	appellant	made	no	offer	of proof	

of	how	excluding	certain evidence	would	cause prejudice).		Despite	multiple	

opportunities,	 Capelety	 did	 not	 object at	 the	 outset	 of	 or	 during	 the	 trial,	

including	when	 the	court	initially	informed	him	 that	he	would	not	be	able	 to	

cross-examine	 the	 GAL;	 and	 he	 never	 made an	 offer	 of	 proof	 about	 what	

evidence	he	would	offer	through	cross-examination.		

6	 	Although	 a	 hearing	 of	 this	 nature, with	 the	 number	 of	 potential	 witnesses	 indicated	 in	 the	

pretrial	order, would	be	difficult to	complete	in	five	hours and	thirty	minutes,	the	parties	and	the	GAL	

called	far	fewer	witnesses	than	anticipated	in	that	order.		
17

[¶25]	 At	the	same	time, litigants should have	a	reasonable	opportunity	

to	present	a	sufficient	case,	both	to	allow	the	court	to	effectively	determine	the	

facts	and	to	protect	the	interests of	the	litigants.		In	this	case,	the	court	could	

have considered making	other	adjustments	that	might have afforded	time	for	

Capelety	to	cross-examine	the	GAL	or	rebut	her	testimony.		For	instance,	once	

it	was	apparent	that	Capelety	had	used	up	all	of	his	allotted	time	by	the	lunch	

break,	and Capelety	had	not	yet	cross-examined	the	GAL, the	court	could	have

curtailed	the	GAL’s forty-minute testimony	or even	admitted the	GAL	report	in	

in	lieu	of	direct	testimony and	immediately	moved to	cross-examination	rather	

than	allowing	lengthy	and	substantially	duplicative	narrative	testimony	from

the	GAL.		Capelety	did	not	propose	such	adjustments,	however,	and,	as	noted,

by	 the	 time	 he raised	 an	 objection	 to	 the	 constraint	 on his	 capacity	 to	

cross-examine	the	GAL,	his	time	limit had	expired. However,	with	forty-three

minutes	 remaining	 until	 the	 4:00 deadline,	 as	 the	 court	 informed	 Capelety,	

there	was	still	the	possibility	that	he	would	have	time	to	cross-examine	the	GAL.		

The	court	explained	to	Capelety’s	attorney	that	it	would	give	 the	GAL	all	 the	

time	she	needed,	and “after	all	that, .	.	.	if	there	is	any	time	available	before	4,	I	

will	give	you	an	opportunity	to	cross-examine.”	
18

[¶26]		Thus,	this	case	could	have	been	handled	differently	to	avoid	 the	

issue	now	before	us.		We	need	not	determine,	however,	whether	enforcement

of	the	time	limits	in	this	case	rose	to	level of	an	abuse	of	discretion	because	even

if	we	were	to	accept	Capelety’s	argument	that	it	did,	any	such error	would be

harmless.

[¶27]		In	reviewing	the	whole	record	in	this	case,	we	conclude	that	it	is	

highly	 probable	 that	 any	 error	 in	 the	 court’s	 admission	 of the	 GAL	 report	

without	 allowing Capelety	 to	 cross-examine	 the	 GAL	 did	 not	 affect	 the trial	

court’s judgment.		See	Banks,	2019	ME	89,	¶ 19,	209	A.3d	109;	see	also	In	re	

Sarah	C.,	2004	ME	152,	¶	14,	864	A.2d	162. The	trial	court	decided	to	vest	most	

of	the	decision-making	power	in	one	parent	to	reduce	conflict.		The	trial	court	

made	 this	determination	 from its findings	 that	 the	parents	have	no	ability	 to	

co-parent	 due	 to	 their	 communication	 problems.	 	 Even	 without	 the	 GAL’s	

report	 or	 her	 testimony,	 the	 record	 contains	 overwhelming	 evidence	 of	 the	

parents’	 communication	 problems	 and	 how	 it	 has	 made	 them	 unable	 to	

co-parent	their	child.		

[¶28]		In	choosing	one	parent	to	make most	of	the decisions	for	the	child,	

the	trial	court	found	that	vesting	decision-making	power	in	the	mother	was	in	

the	 best	 interest	 of	 the	 child.	 	 In	 its	 findings,	 the	 trial	 court	 articulated	 its	
19

concerns	about	 the	 father’s	difficulty	with	processing	information,	noting	his	

“very	 convenient	 lapses	 of	 memory	 when	 questioned	 about	 statements,	

behaviors,	or	incidents	that	would	be	unfavorable	to	him,”	while	having	a	clear	

memory	concerning	actions	and	statements	by	the	mother.	 The	trial	court	also	

noted	its	concern	that	the	father	had	engaged	in	multiple	parenting	classes	and	

individual	 counseling	 yet	 still	 could	 not	 communicate effectively	 with	 the	

mother.		

[¶29]	 Given	 the	 weight	 of	 the	 evidence	 beyond	 the	 GAL’s	 testimony	

supporting	the	judgment,	we	conclude	that	it	is	highly	probable	that the	court’s	

enforcement	of	the	time	limits	it	established	before	the	trial	began	did	not	affect	

the	judgment.		See	Banks,	2019	ME	89,	¶	19,	209	A.3d	109.

The	entry	is:

Judgment	affirmed.

Ashley	T.	Perry,	Esq.,	Sanders,	Hanstein	&	Carey,	P.A.,	Farmington, for	appellant	

Nicholas	J.	Capelety

Kyla	R.	Estes,	appellee	pro	se

South	Paris	District	Court	docket	number	FM-2020-117

FOR	CLERK	REFERENCE	ONLY