In re Tibbetts

• Decision Date: 09 August 2018
• Docket Number: Court of Appeals No. 17CA1211
• Citation: 428 P.3d 686
• Parties: IN RE the MARRIAGE OF Sharon D. TIBBETTS, n/k/a Sharon D. Williams, Appellee, and Ronald L. Tibbetts, Appellant.
• Court: Colorado Court of Appeals

428 P.3d 686

IN RE the MARRIAGE OF Sharon D. TIBBETTS, n/k/a Sharon D. Williams, Appellee, and Ronald L. Tibbetts, Appellant.

Court of Appeals No. 17CA1211

Colorado Court of Appeals, Division III.

Announced August 9, 2018

Kay Snider, Grand Junction, Colorado, for Appellee

Catherine Burkey, Grand Junction, Colorado, for Appellant

Webb and Nieto^* , JJ., concur

Opinion by JUDGE FOX

¶ 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 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 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, 318 P.3d 562 ("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, 303 P.3d 131 ("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 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 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).

¶ 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 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 , 114 Cal.App.4th 587, 7 Cal.Rptr.3d 701, 706 (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, 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 , 317 Mich.App. 671, 895 N.W.2d 555, 562 (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’...