MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 3 ME 50 Docket: Oxf

- 22

- 138 Submitted

On	B riefs : 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 righ ts	 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	(202 3 ) ; 19

- A	M.R.S.	§	104(2023); M.R.	App.	P.	2B(c)(2 ). Capelety	contends	on	appeal that	 the	 court	 improperly	 restricted	 his	 ab ility	 to	 present	 his	 case	 by (1) imposing	 a	 time	limit	 on	 his	 trial	 presentation that	 resulted	in	 his	 being unable to cross - examin e	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. W e 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	Magist rate	( 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 N either	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	h ad	 “+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/impute d	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: 2 6 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 C ourt reserving	one	hour	for	th e	[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 ] C apelety	 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	 ha d	 presented	 the	 testimony	 of	 his	 third	 witness, Estes	asked	the	court,	“ H ow	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.		A nd	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, who se 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	attor ney, 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	 ti me.”	 	 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,	 or5

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	oppo rtunity	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	 t hen
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
- ex amine. ” Capelety	did	not	object.6 [¶1 0 ]		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	wi th 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	 propose d	 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	completi ng	her	own	report, and	that	it	had	not	affected	her	recommendations. Over	Capelety’s	objection,

t he	 trial	 court	 admitted	 in	 evidence	 the	 GAL’s	 report,	 a s	 well	 as several printouts	of	text	messages	between	the	parties. [¶1 1 ]		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	 contro l	 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	 during7 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	 demonstrate d	 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	 t aking	 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

- stro ke allegations” a nd	that	Estes	did	not	testify	re gar ding	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. [¶1 2 ]	 	 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	she8 requested	 that	 the	 court	 permit	 the	 part ies	 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.		H ow	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	b e	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	th an	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. [¶1 3 ]		In	March	2022,	the	court	(South	Paris, Ham

- Thompso n,	J. ) issued	a judgment	determining	parental	rights	and	responsibilities.		The	court	found	t he 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 fre quently,	 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	 chil d.	 	 The	 child’s	interest s would	 be	 served	 best	 by	 one parent	having	most	of	the	decision

- making	power. [¶1 4 ]		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	t hat	parent’s care	but	with	Estes	having	 the	right	 to	make	 final	decisions	in	 the	event	of	a disagr eement.		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	 regardi ng	 the	 parties’	 incomes, completed	 a	 child	 support	 worksheet,	 and	 entered	 a	 child	 support	 order10 requiring	Capelety	to	pay	Estes	$714	per	month	in	child	support	until	the	child turns	eighteen. [¶1 5 ]		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
1 4 M.R.S.	§	1901; 19

- A	M.R.S.	§	104; M.R.	App. P. 2B(c)(2).
II.		DISCUSSION [¶1 6 ]	 	 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 al so	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 “a11 findings	 to	 support	 its	 ultimate	 conclusions	 and	 abused	 its	 discretion	 in determining	 parental	 rights	 and	 responsibilities,	 primary	 residence,	 and parent
- child	contac t. We address only	the	time	limitation	placed	upon	Capelety and	the	effect	it	had o n	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 R eview [¶1 7 ]	 	 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	he aring	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	object ed to	the	GAL’s	test imony	about	domestic	violence on the	basis that	the	testimony	assumed	facts	not	in	evidence

. A lthough the	court	deemed t his	objection untimely	 and	 overruled	 it , the	 issue	 of	 whether	 that	 ruling at	 the	 time constitute s an	 abuse	 of discretion	is	nonetheless preserved	for	our	review.

4 Capelety ma kes two	other	arguments	that	we	decline	to	address.		First,	he	posit s 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 devote s 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,	 ¶	 1 1,	 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	discreti on); Moody	v.	Haymarket	Assocs. ,	1999	ME	17, ¶ 4,	723	A.2d	874 (explaining	that	we	review	evidentiary	rulings	for	an	abuse of	discretion). [¶1 8 ] 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. [¶1 9 ]		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	interests13 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	support s 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	th at	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),	“ T he	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	 or der	 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 custody14 arrangements will further the child ’ s best interest.” Cloutier	v.	Lear, 1997	ME 35,	¶	8,	691	A.2d	660 ( quotation	marks omitted). [¶ 2 1] 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	i n evidence	and the	GAL is	subject	to	cross

- examination regarding	the	report

. See
19

- A	 M.R.S.	 § 1507(5)	 (202 3 ) ; 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	 competenc e	 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	ad missibility	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 ] W e 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	 fo r present ing 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	.	.	.	.”) T ime limits	are often based ,	as	they were	here, on the	litigants ’ estimate	of	the	time	necessary	to	present their case s ,	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)

. T he	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 ] I f	 time	 limits	 prove	 to	 be	 inaccurate	 or	 unreasonable, notwithstanding	 a	 court’s	 effort	 to	 move	 the	 case	 along, counsel	 ha ve 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	o f 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	 G AL ; 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 , l itigant s should have	a	reasonable	opportunity to	present	a	sufficient	case,	both	to	allow	the	court	to	effectively	determine	the facts	and	to	protect	the	interest s of	the	litigants.		In	this	case ,	the	court	could have considered making	other	adjustments that	might have a fforded	time	for Capelety to	cross
- examine	the	GAL	or	rebut	her	testimony .		For	instance,	o nce 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
curt ailed	the	GAL’s forty

- minute testimony	or even admitted the	GAL	report	in in	lieu	of	direct	testimony and	immediately	mov ed 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	bef ore	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 ] I n 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,	¶ 1 4,	864	A.2d	162

. T he	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	 t o

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	 its19 concerns	about	 the	 father’s	difficulty	with processing information,	no ting	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	tha t	the	father	had	engaged	in	multiple	parenting	classes	and individual	 counseling	 yet	 still	 could	 not	 communicat e 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,	¶	1 9 ,	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 F OR C LERK	REFERENCE O NLY