In rе the Marriage of Sharon D. Tibbetts, n/k/a Sharon D. Williams, Appellee, and Ronald L. Tibbetts, Appellant.
No. 17CA1211
COLORADO COURT OF APPEALS
August 9, 2018
2018COA117
Mesa County District Court No. 11DR278, Honorable Brian J. Flynn, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the сonvenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
August 9, 2018
2018COA117
No. 17CA1211 Marriage of Tibbetts — Family Law — Uniform Dissolution оf Marriage Act — Parenting Time
A division of the court of appeals considers whether parenting time issues under the Uniform Dissolution of Marriage Act (UDMA) are mooted when a child turns eighteen. The division distinguishes In re Marriage of Hartley, 886 P.2d 665, 669 & n.4 (Colo. 1994), where the Colorado Supreme Court stated that “[a] court retains jurisdiction over child custody issues under the UDMA until the child reаches the age of emancipation,” which the court noted was “normally 21 years of age.” Because the child has turned eighteen, the division dismisses the appeal as moot.
APPEAL DISMISSED
Division III
Opinion by JUDGE FOX
Webb and Nieto*, JJ., concur
Announced August 9, 2018
Kay Snider, Grand Junction, Colorado, for Appellee
Catherine Burkey, Grand Junction, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of
¶ 1 This post-dissolution of marriage appeal involving parenting time for the child of Ronald L. Tibbetts (father) and Sharon D. Tibbetts, now known as Sharon D. Williams (mother), raises this question: Is an appeal of a parenting time order mooted when the child who is the subject of the order turns eighteen while the appeal is pending? Answering this question “yes,” we dismiss the appeal.
I. Background
¶ 2 The parties married in 1998 and have one child, who was born on November 14, 1999. When the marriage ended in 2011, the court adopted their stipulated parenting time plan and incorporated it into the decree. The parenting plan was modified in 2014, again by the parties’ stipulation, which the district court adopted.
¶ 3 In 2016, father requested that the parenting plan be terminated and that the child, who was then sixteen years old, be free to determine her own parenting time schedule. Mother responded that lack of a parenting plan would not be in the child‘s best interests. After a hearing, a district court magistrate denied father‘s motion to terminate the parenting plan. The magistrate found that the existing plan was working despite the child‘s “avowed dislike of it” and that the then seventeen-year-old child was “not yet an adult, and not yet ready to go without a parenting plan altogether.”
¶ 4 On father‘s petition to the district court for review of the magistrate‘s order, the court adopted the order. Father then aрpealed to this court, raising the following issues: (1) whether the magistrate erred in finding that a court cannot delegate parenting time decisions to both parents; (2) whether the magistrate erred by applying the endangerment standard in addressing father‘s motion to terminate the parenting plan; (3) assuming
II. Mother‘s Motion to Dismiss the Appeal
¶ 5 Father filed his opening brief on November 13, 2017, the day before the child turned eighteen. Mother then moved to dismiss the appeal, contending that because the child is now an adult, the parenting time issues father raises on appeal cannot be resolved as to her. Father responded that mother could still move for contempt based on the parenting time order and that the issue whether the magistratе erred in ruling that parenting time decisions could not be delegated to both parents was not moot. A motions division deferred the motion to dismiss to the division deciding the merits and instructed the parties to further address mootness in their briefs.
¶ 6 Based on the motion, the response, and the additional arguments in the briefs, we dismiss the appeal as moot.
A. Legal Standards
¶ 7 An appellate court will not render an opinion when the issues presented have become moot because of subsequent events. In re Marriage of Dauwe, 148 P.3d 282, 284 (Colo. App. 2006); see Colo. Mining Ass‘n v. Urbina, 2013 COA 155, ¶ 33 (“The power of judicial review simply does not extend to moot questions.“); Giuliani v. Jefferson Cty. Bd. of Cty. Comm‘rs, 2012 COA 190, ¶ 15 (“Where a сlaim is moot on appeal, we decline to address its merits, and instead dismiss the claim.“).
¶ 8 “An issue is moot when a judgment, if rendered, would have no practical legal effect on the existing controversy.” Dauwe, 148 P.3d at 284 (issue whether trial court erred by not terminating special advocate‘s appointment was mooted when advocate withdrew from case); see In re Marriage of Salby, 126 P.3d 291, 301 (Colo. App. 2005) (challenge to parenting time order was mooted by later modifying order).
B. A Judgment Concerning a Parenting Time Order Can Have No Practical Legal Effect After a Child Turns Eighteen
¶ 9 Under the Uniform Dissolution of Marriage Act (UDMA), as adopted in Colorado, а court entering a decree of dissolution is charged with allocating parental responsibilities “with respect to any child of the marriage.”
¶ 10 Still, as mother points out, the term is defined in the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) as “an individual who has not attained eighteen years of age.”
¶ 11 Additionally, the statute creating the Office of the Child‘s Representative, referenced in
¶ 12 The age of competence statute,
[E]very person, otherwise сompetent, shall be deemed to be of full age at the age of eighteen years or older for the following specific purposes:
(a) To enter into any legal contractual obligation and be legally bound thereby to the full extent as any other adult person ...;
(b) To manage his estate in the same manner as any other adult person. . ..;
(c) To sue and be sued in any action to the full extent as any other adult person in any courts of this state, without the necessity for a guardian ad litem or someone acting in his behalf;
(d) To make decisions in regard to his own body . . . to the full extent allowed to any other adult person.
Thus, onсe the parties’ child turned eighteen, she attained the right to make her own decisions, including whether to visit her parents, rendering the issues father raises on appeal moot. See Wells v. Barile, 358 P.3d 583, 588 (Alaska 2015) (holding, based on Alaska‘s similar competency statute, that challenge to custody order would be moot if not for child support issuеs also raised because child had turned eighteen pending appeal).
¶ 13 Father‘s concern over possible contempt does not survive scrutiny. Because the parties’ child is over eighteen and not a party to their dissolution case, the parenting time order that father challenges on appeal cannot be enforced as to her. See
¶ 14 Father correctly points out that a child is not emancipated under the UDMA for child support purposes until age nineteen. See
¶ 15 In arguing that parenting time issues are not moot until the child emancipates, father understandably relies on the Colorado Supreme Court‘s statement in In re Marriage of Hartley, 886 P.2d 665, 669 & n.4 (Colo. 1994), that “[a] court rеtains jurisdiction over child custody issues under the UDMA until the child reaches the age of emancipation,” which the court noted was “normally 21 years of age.” We conclude that Hartley is materially distinguishable, and that this statement does not apply to the circumstances presented here.
¶ 16 The issue in Hartley was whether a child could hire his own attorney to represent him in his parents’ dissolution case because he was unhappy with the guardian ad litem (GAL) appointed to represent his interests. Id. at 667-68. The court of appeals held that the issue was moot because the trial court ultimately awarded custody to the child‘s father with no visitation for his mother, whiсh was the result the child sought. Id. at 668. The supreme court disagreed that the case was moot, but also determined that the child‘s representation by a GAL was adequate and satisfied all constitutional requirements. Id. at 668-69.
¶ 18 The court relied on cases holding that child support may be ordered until a child emancipates. See Hartley, 886 P.2d at 669 & n.4; see also In re Marriage of Huff, 834 P.2d 244, 249-51 (Colo. 1992) (applying previous version of child support statute and upholding district court order that parent must pay child‘s final year college exрenses when support order was entered before child turned twenty-one); In re Marriage of Plummer, 735 P.2d 165, 166 (Colo. 1987) (presumption of emancipation for child support purposes arises at age twenty-one); Koltay v. Koltay, 667 P.2d 1374, 1376 (Colo. 1983) (same). The supreme court also relied generally on the district court‘s continuing jurisdiction to enforce its orders in a dissolution of marriаge case, citing Gonzales v. District Court, 629 P.2d 1074, 1076 (Colo. 1981), which again arose in the child support context and did not involve the enforcement of parental responsibilities orders. See Hartley, 886 P.2d at 669; Gonzales, 629 P.2d at 1075-76.
¶ 19 And the court cited
¶ 20 The child in Hartley was under the age of eighteen throughout the entire casе. See 886 P.2d at 669. Thus, the court‘s statement, on which father relies, is dicta concerning a court‘s continuing jurisdiction over parental responsibilities after a child turns eighteen. Neither Hartley nor any of the cases on which it relies for this point involve the enforcement of parenting time orders for a child who is over eighteen. Fоr these reasons, Hartley does not compel a different result here.
¶ 21 In sum, we conclude that the parenting time issues father raises on appeal are moot because the parties’ eighteen-year-old child is no longer subject to the dissolution court‘s jurisdiction to allocate parenting time and the court‘s existing parenting time order that father chаllenges is no longer enforceable as to her.
C. The Exception to the Mootness Doctrine for Issues Likely to Recur Yet Evade Review Does Not Apply
¶ 22 Father argues that we should address at least one of his issues — that the court erred in finding that it could not delegate parenting time decisions to both parents — because it is capable of repetition yet evades review. We disagree.
¶ 23 An exception to the rule that an appellate court will not decide a moot issue is that a court may review such an issue if it is capable of repetition, yet evades review. See People in Interest of C.G., 2015 COA 106, ¶¶ 37-41 (issue concerning agеncy‘s failure to use due diligence to identify, locate, and personally serve unknown father in termination of parental rights case was capable of repetition and could evade review because future parents also served only by publication might never learn of action
¶ 24 Father‘s argument that this exception applies to the issue of whether a court has the discretion to delegate parenting time decisions tо both parents is unpersuasive. The issue obviously cannot recur as to these parents because their child is now an adult and free to decide whether and when to visit her parents.
¶ 25 And to the extent the issue may arise for other parents, a division of this court previously recognized that a general parenting timе order that leaves the specific parameters of a parent‘s time to the parents to work out together might comply with the statute in a case where the evidence indicates that the parents are willing and able to cooperate on parenting time. See In re Marriage of Plummer, 709 P.2d 1388, 1390-91 (Cоlo. App. 1985). However, if the parents are not able to cooperate, such an order constitutes an abuse of discretion. Id.; see also S.F.E. in Interest of T.I.E., 981 P.2d 642, 645-46 (Colo. App. 1998).
¶ 26 Although the issue has been addressed previously and may indeed recur again, father has provided no reason, nor do we perceive any, why it would evade review. See Campbell v. Meyer, 883 P.2d 617, 618-19 (Colo. App. 1994) (refusing to address ballot title issue as moot after voters defeated the measure, noting that future similarly situated plaintiffs could obtain review of the issue). Thus, we decline to address it.
III. Appellate Attorney Fees
¶ 27 We deny mother‘s request for appellate attorney fees. Although father‘s arguments against mootness were unsuccessful, they are not frivolous such that sanctions are appropriate under
IV. Conclusion
¶ 28 The appeal is dismissed.
JUDGE WEBB and JUDGE NIETO concur.