MacCormick v. MacCormick

478 A.2d 678
CourtSupreme Judicial Court of Maine
DecidedJune 6, 1984
StatusPublished
Cited by6 cases

This text of 478 A.2d 678 (MacCormick v. MacCormick) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacCormick v. MacCormick, 478 A.2d 678 (Me. 1984).

Opinion

McKUSICK, Chief Justice.

In its judgment granting a divorce to Wendy MacCormick, the wife, the District Court (Farmington) ordered that custody of two minor children be awarded to Christopher MacCormick, the husband. From the Superior Court’s order affirming that judgment the wife now appeals to the Law Court. Because we agree with her contention on appeal that the District Court committed reversible error in refusing to allow her to make an offer of proof allegedly relevant to the child custody issue, we order the judgment of the District Court to be vacated and remand the case for rehearing of the custody and any related issues.1

The facts pertinent to this appeal may be quickly stated. On May 6, 1982, the wife filed a complaint for divorce in District Court alleging irreconcilable differences. On June 17, 1982, an order was entered awarding her temporary custody of the two minor children, one being then 25 months old and the other, four months. Hearings were held before the District Court on seven different dates from September 9, 1982, through January 25, 1983. The evidence adduced at the hearings focused on the custodial arrangement that each party proposed to provide the children after the divorce. The husband produced evidence indicating that when the children were in the custody of the wife they were frequently present at the household of the wife’s [680]*680employer, which the husband attempted to show was an unwholesome environment for children. The husband also presented evidence pertinent to the custodial arrangement he would provide if he were awarded custody of the children. He testified that, in that event, he would reside in Aurora, ..New York, with his parents. The husband’s parents both testified that they would be able to accommodate Christopher and the children and would welcome their presence at the family home in New York. The husband’s sister, Marion MacCormick, testified that if Christopher brought the children to New York she would quit her job in North Carolina and move back to her parents’ home to become the children’s principal caretaker.

Marion MacCormick and her parents, all of whom appeared as witnesses for the husband, were permitted to testify out of order on the first day of the hearing because they had traveled some distance from out of state. During the direct examination of the wife, who testified about a month and a half after Marion MacCor-mick, the wife was asked about statements that Marion MacCormick had purportedly made to her regarding Marion’s feelings toward Christopher. After the trial judge excluded the proffered testimony on the ground that it constituted hearsay, the wife’s counsel sought to make an offer of proof. The judge refused to allow the offer of proof, indicating that he believed it improper for a judge sitting as a finder of fact without a jury to hear evidence that had been ruled inadmissible.2

M.R.Evid. 103(a) provides that error may not be predicated on a ruling of the trial court excluding evidence unless

the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Where an offer of proof is necessary, it serves two purposes: first, to enable the trial judge to rule advisedly and, second, to present a basis for appellate determination whether the trial judge’s ruling was erroneous and, if so, whether the error was prejudicial. See Utz v. Utz, 273 A.2d 303, 304 (Me.1971); see also State v. Clark, 475 A.2d 418, 421 n. 2 (Me.1984) (the purpose of an offer of proof is not only to apprise the appellate court of the scope and effect of the ruling but also to persuade the trial judge to change his mind and admit the evidence); State v. Rich, 395 A.2d 1123, 1130 (Me.1978), cert. denied, 444 U.S. 854, 100 S.Ct. 110, 62 L.Ed.2d 71 (1979); State v. Davis, 155 Me. 430, 431, 156 A.2d 392, 393 (1959); Field & Murray, Maine Evidence § 103.4, at 9 (1976).

At the trial level, failure to make an offer of proof deprives the trial judge of the opportunity to “double check” his exclusionary ruling after becoming fully informed of the nature of the proffered evidence. See State v. Davis, 155 Me. at 431, 156 A.2d at 393. At the appellate level, failure to make an adequate offer of proof renders it impossible for the reviewing court to determine whether the exclusionary ruling was erroneous, see J.F. Singleton Co. v. Rush, 463 A.2d 282, 283 (Me.1983); Pratt v. Freese’s, Inc., 438 A.2d 901, 905 (Me.1981); State v. Rich, 395 A.2d at 1130, and if the ruling was erroneous, whether the error was prejudicial, see Gross v. Martin, 128 Me. 445, 48 A. 680 (1930). On the basis of these considera[681]*681tions, we have consistently refused to take cognizance of claims of error in exclusionary rulings where no offer of proof has been made. See, e.g., J.F. Singleton Co. v. Rush, 463 A.2d at 283; Pratt v. Freese’s, Inc., 438 A.2d at 905; Gaynor v. McEachern, 437 A.2d 867, 870 (Me.1981); Roy v. Inhabitants of City of Augusta, 414 A.2d 215, 218 (Me.1980); Banville v. Huckins, 407 A.2d 294, 298 (Me.1979); State v. Rich, 395 A.2d at 1130; Utz v. Utz, 273 A.2d at 304.

Often in the past we have made it abundantly clear that a proper offer of proof is a fundamental step for any litigant in adequately preserving a claim of error for appeal. For the trial court to deprive a party of the opportunity to make an offer of proof following a ruling excluding evidence is to deprive the party of the right, guaranteed by statute and rule,3 to have a meaningful review of the trial court’s action. Thus, it is reversible error to refuse without justification to allow a party to make an offer of proof. See State v. Davis, 155 Me. at 432, 156 A.2d at 393. Our holding in Davis is in accord with innumerable decisions throughout the country, of which representatives are set forth in the margin.4 See also 1 Wigmore, Evidence § 20a, at 859, 862 n. 5 (Tillers rev. 1983); 88 C.J.S. Trial § 73, at 179 (1955); Annot., 89 A.L.R.2d 277, 286-87 (1963). Cf. Standards for Criminal Justice, Special Functions of the Trial Judge, Standard 6-2.4 (1980) (“The trial judge should respect the obligation of counsel ... to make offers of proof”).

In the case at bar, there was no justification for the trial court’s denial of the opportunity for making an offer of proof. The situation was not one where an offer was unnecessary because the substance of the evidence was “apparent from the context within which questions were asked.” M.R.Evid. 103(a)(2). The need for the offer is made abundantly clear by the state of the appellate record. The testimony that the court excluded was addressed to statements that Marion MacCormick allegedly had made “as to her state of mind regarding Chris.” The court excluded the question on the ground of hearsay.

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478 A.2d 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maccormick-v-maccormick-me-1984.