In re the Marriage of Williams and Tibbetts , 428 P.3d 686 ( 2018 )

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 convenience 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 of 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 reaches 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.
COLORADO COURT OF APPEALS 2018COA117
Court of Appeals No. 17CA1211
Mesa County District Court No. 11DR278
Honorable Brian J. Flynn, Judge
In re the Marriage of
Sharon D. Tibbetts, n/k/a Sharon D. Williams,
Appellee,
and
Ronald L. Tibbetts,
Appellant.
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 Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶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
1
“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
appealed 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 the endangerment
standard applied, whether evidence showed endangerment; (4)
whether evidence showed that father had alienated the child from
mother; and (5) whether the parenting time plan ordered by the
magistrate is in the child’s best interests.
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
2
magistrate 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
claim 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
3
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, a court entering a decree of dissolution is
charged with allocating parental responsibilities “with respect to
any child of the marriage.” § 14-10-106(1)(b), C.R.S. 2017
(emphasis added); see also § 14-10-124(1.5)(a), C.R.S. 2017
(providing that the court shall make provisions for parenting time
that it finds are in a “child’s” best interests). In the modification
context, the court may modify parenting time rights whenever doing
so “would serve the best interests of the child.” § 14-10-129(1)(a)(I),
C.R.S. 2017 (emphasis added). However, “child” is not defined in
the UDMA. See § 14-10-103, C.R.S. 2017; § 14-10-124(1.3).
¶ 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.” § 14-13-
102(2), C.R.S. 2017. The UCCJEA’s purposes are to provide a
4
framework for determining whether Colorado or another state has
jurisdiction to determine initial parental responsibilities for a child
or to modify existing orders, and to facilitate enforcement of such
orders across state lines. See Title 14, art. 13, UCCJEA Prefatory
Note. It does not make sense to define “child” differently for
purposes of Colorado’s UDMA statutes than the term is defined
under the UCCJEA.
¶ 11 Additionally, the statute creating the Office of the Child’s
Representative, referenced in section 14-10-116(2), C.R.S. 2017,
defines “child” as “a person under eighteen years of age.” § 13-91-
103(1), C.R.S. 2017. “Child” is similarly defined in other statutes.
See § 13-22-107(2)(a), C.R.S. 2017 (waiver of negligence claim by a
parent for a child); § 14-13.5-102(2), C.R.S. 2017 (Uniform Child
Abduction Prevention Act); § 18-6-403(2)(a), C.R.S. 2017 (sexual
exploitation of a child); § 18-7-401(2), C.R.S. 2017 (child
prostitution); § 19-1-103(8)(a), (18), C.R.S. 2017 (children’s code
provisions defining “adult” as a person eighteen years of age or
older and “child” as a person under eighteen); § 25-4-901(1.5),
C.R.S. 2017 (school entry immunization).
5
¶ 12 The age of competence statute, section 13-22-101(1), C.R.S.
2017, provides as follows:
[E]very person, otherwise competent, 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, once 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 issues 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
6
to their dissolution case, the parenting time order that father
challenges on appeal cannot be enforced as to her. See § 13-22-
101(1); see also § 18-3-304(2), C.R.S. 2017 (Any person who
violates a district court order granting parental responsibilities
“with respect to a child under the age of eighteen years” commits a
class 5 felony.). Nor could the order be enforced against the parties
because neither parent can force an eighteen-year-old to comply
with the dissolution court’s parenting time provisions. See People v.
Lockhart, 699 P.2d 1332, 1336 (Colo. 1985) (party may not be held
in contempt for refusing to do that which he is unable to do); cf. In
re Marriage of Jensen, 7 Cal. Rptr. 3d 701, 706 (Cal. Ct. App. 2003)
(“[T]he court may neither order a party to a dissolution action to
assert control over an adult child, nor hold the party responsible for
any reluctance or refusal of an adult child to visit . . . with the other
party.”).
¶ 14 Father correctly points out that a child is not emancipated
under the UDMA for child support purposes until age nineteen. See
§ 14-10-115(13)(a), C.R.S. 2017. But a child support order acts on
the parents; it does not require the eighteen-year-old’s consent and
cooperation as a parenting time order necessarily does. Hence,
7
continuing child support until a child reaches age nineteen does not
mean that parenting time orders can also be enforced until then.
Cf. Weaver v. Giffels, 895 N.W.2d 555, 562 (Mich. Ct. App. 2016)
(finding eighteen-year-old child was no longer subject to custody
orders, but was still a “child” for purposes of the child support
orders).
¶ 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 retains 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
8
custody to the child’s father with no visitation for his mother, which
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.
¶ 17 The court reasoned that the case was not moot because the
child, who was twelve when the litigation began in district court and
seventeen when the supreme court’s decision was announced, was
“still a minor subject to the jurisdiction of the trial court in matters
of custody, support and parenting time.” Id. at 669. The court then
said, “[a] court retains 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.” Id. at 669 & n.4.
¶ 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 expenses when support order was entered before child
turned twenty-one); In re Marriage of Plummer, 735 P.2d 165, 166
9
(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 marriage 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 section 2-4-401, C.R.S. 2017, as
establishing twenty-one as the age of emancipation. Hartley, 886
P.2d at 669 n.4. This general definitional statute, applying “unless
the context otherwise requires,” defines a “minor” as “any person
who has not attained the age of twenty-one years.” § 2-4-401(6). It
further provides that “[n]o construction of this subsection (6) shall
supersede the express language of any statute.” Id. Hence, while a
person over eighteen but not yet twenty-one may be a “minor,” that
person still possesses all of the rights specified in the age of
competence statute, including the right to make his or her own
decisions. See § 13-22-101(1)(d); cf. People in Interest of L.A.C., 97
10
P.3d 363, 366 (Colo. App. 2004) (holding that section 2-4-401’s
definition of “minor” as a person under twenty-one did not require
GAL appointment for eighteen-year-old mother in termination of
parental rights case because definition was inconsistent with
section 13-22-101(1)(c) provision that person over eighteen can sue
and be sued).
¶ 20 The child in Hartley was under the age of eighteen throughout
the entire case. 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. For 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 challenges is no longer enforceable as to her.
11
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 agency’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 to be able to
raise issue); In re Marriage of Slowinski, 199 P.3d 48, 51 (Colo. App.
2008) (electing to review moot issue involving emergency restriction
of parenting time because of statute’s very short time period for
resolving issue).
¶ 24 Father’s argument that this exception applies to the issue of
whether a court has the discretion to delegate parenting time
12
decisions to 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
time 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 (Colo. 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.
13
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
C.A.R. 38(b). See City of Aurora ex rel. Util. Enter. v. Colo. State
Eng’r, 105 P.3d 595, 621 (Colo. 2005) (reversing attorney fees award
when party’s argument was “a good faith attempt to extend existing
law”); Mission Denver Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984)
(“Standards for determining whether an appeal is frivolous should
be directed toward penalizing egregious conduct without deterring a
lawyer from vigorously asserting his client’s rights.”).
IV. Conclusion
¶ 28 The appeal is dismissed.
JUDGE WEBB and JUDGE NIETO concur.
14