Higgins v. Higgins
| Decision Date | 07 March 1977 |
| Citation | 370 A.2d 670 |
| Parties | Elmer M. HIGGINS, Jr. v. Ingeborg HIGGINS. |
| Court | Maine Supreme Court |
James H. Dineen, Kittery, for plaintiff.
Bennett, Kelly & Zimmerman, P. A. by Alton C. Stevens, John N. Kelly, Peter J. DeTroy, III, Portland, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, * POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
The bonds of matrimony between the plaintiff husband, Elmer M. Higgins, Jr., and the defendant wife, Ingeborg Higgins, were severed by the Judge of the Tenth District Court, Division of Southern York, on the husband's complaint, the judgment of divorce issuing on August 20, 1974. When her appeal to the Superior Court was denied on November 7, 1974, the wife appealed to this Court, raising for our consideration the single issue: whether it was reversible error for the District Court Judge to deny her request for an electronic record of the proceedings in the District Court pursuant to Rule 76, D.C.C.R. 1 We deny her appeal.
The issue arose in the following sequence of events. On August 16, 1974, at approximately 11:30 a. m., counsel for the defendant wife communicated with the Chief Clerk of the Tenth District Court, Division of Southern York in which the divorce complaint against Mrs. Higgins was pending to advise her that electronic recording of the divorce proceeding was desired. Shortly before the hearing commenced, a formal request to that effect was made to the Court. In his findings of fact, the Judge explained his denial of the request in the following language:
'Mrs. Patricia Beatty was in the Court as Chief Clerk of District Court, District Ten, Division of Southern York, on that date.
'Mrs. Patricia Beatty is competent to operate the electronic recording equipment which was installed in said District Court.
'Mrs. Patricia Beatty, although present, was not available to operate said equipment on that date, in that the Clerk's office was operating without the benefit of full clerical staff.
'That the use of Mrs. Patricia Beatty as an operator of the electronic device would have left the Clerk's office during a regular court day with the services of one full time clerk as opposed to three.'
The defendant contends that she had an absolute right to an electronic recording of the divorce proceedings at that time and place as she had requested and that the denial thereof was reversible error.
We note, however, that the Rules do provide for a record on appeal through means other than the transcript of the proceedings made from electronic sound recording equipment.
Rule 75(c), D.C.C.R. provides in part as follows:
'In any case in which electronic recording would be routine or has been Rule 75(d), D.C.C.R. permits a record based on agreed statement of the parties:
timely requested under Rule 76(a) of these rules, if for reasons beyond the control of any party, no recording, or no transcript thereof, was made, or is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a transcript. . . .'
'When the questions presented by an appeal to the Superior Court can be determined without an examination of all the pleadings, evidence, and proceedings in the court below, the parties may prepare and sign a statement of the case showing how the questions arose and were decided and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the questions by the Superior Court. . . .'
No attempt appears to have been made to show, nor is there any evidence demonstrating, that the defendant could not have presented to the Superior Court and ultimately to this Court on appeal the substantive issue of the propriety of the Judge's divorce decree in favor of her husband, if she had, pursuant to Rule 75(c), D.C.C.R., prepared for use a statement of the evidence, reconstructed from memory, instead of a transcript and submitted the same for settlement and approval of the District Court Judge.
We do agree with the defendant Rule 76(a), D.C.C.R., in providing that '(a)ny proceedings not routinely recorded shall be recorded at the request of any party in such proceedings' (emphasis added), is mandatory on the District Court. It cannot be arbitrarily ignored. To this extent, we concur with the Advisory Committee's note of January 18, 1974 which states:
(Emphasis supplied) Maine Civil Practice, Field, McKusick and Wroth, (1974 Supp.) p. 125.
It is true that the purpose of the rule is 'to encourage use of the recording and transcript procedure and to eliminate the administrative burdens involved in the adversary formulation of the statement, except where the statement is truly necessary.' Id. at page 121.
The instant record disproves arbitrariness on the part of the District Court Judge. The defendant's rejection of a continuance of the hearing to a date when her request for an electronic sound recording of the divorce proceeding could be met and her full participation in the hearing without further protest was a strategic acceptance, then and there, of the secondary means of appellate procedure provided by the rules, should an appeal become necessary. Whatever disadvantage may have accrued to the defendant by reason of the absence of electronic sound recording of the proceeding necessitating the preparation of a record in the alternative form stems from her deliberate insistence that the hearing proceed forthwith.
While a party has a right to an electronic recording of the proceeding on request, that right may be subject to adjustment as to time or place depending upon the exigent circumstances existing at the time of the request. An individual's right must yield to practical considerations arising out of every day operation of the court system.
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...its discretion, its ruling may not be set aside absent a showing of an abuse of discretion or an error of law. Higgins v. Higgins, Me., 370 A.2d 670, 674 (1977). "The primary test ... is whether ... the ruling is in the furtherance of justice." State v. Mason, Me., 408 A.2d 1269, 1272 We co......
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