Marriage of Hartley, In re
| Decision Date | 05 December 1994 |
| Docket Number | No. 93SC625,93SC625 |
| Citation | 886 P.2d 665 |
| Parties | In re the MARRIAGE OF Ronald Glenn HARTLEY and Ivonne Lee Hartley, and Concerning Eric Hartley. Eric HARTLEY, Petitioner, v. Ronald Glenn HARTLEY and Ivonne Lee Hartley, Respondents. |
| Court | Colorado Supreme Court |
Seth A. Grob, Children's Legal Clinic, Denver, for petitioner.
Ivonne Lee Hartley, pro se.
Ronald Glenn Hartley, pro se.
Eugene P. Falco, Litchfield, CT, for amici curiae Nat. Task Force for Children's Constitutional Rights, Legal Action Project of the Nat. Committee for the Rights of the Child, Nat. Ass'n of Counsel for Children, Child Advocacy Law Clinic, University of Michigan Law School.
We granted certiorari to review an unpublished opinion of the court of appeals, In re the Marriage of Ronald Glenn Hartley, and Ivonne Lee Hartley, and concerning Eric Hartley, No. 92CA1177 (Colo.App. August 19, 1993) (). At issue in this case is the right of a minor child to be represented by the attorney of his choice in a custody dispute arising under the Uniform Dissolution of Marriage Act (UDMA). We reverse the court of appeals' holding that the issue was moot because of a subsequent custody decision by the trial court and also hold that a minor child's interests are adequately represented under the UDMA.
On November 1, 1989, Ronald Hartley (father) filed a petition for dissolution of the marriage from his spouse, Ivonne Hartley (mother). In 1989, the father requested the trial court to award him sole custody of their two minor children, Chad, a fourteen year old, and Eric, a twelve year old. 1 In her response to the petition, the mother requested that she be awarded custody, maintenance and child support. On January 24, 1990, as a result of a stipulation between the father and the mother, the trial court appointed an attorney (guardian ad litem or GAL) to represent the interests of the two children, pursuant to section 14-10-116, 6B C.R.S. (1987 & 1994 Supp.). 2
A hearing was held on February 15, 1990, and the parents were awarded temporary joint custody of both children. On June 25, 1991, a trial commenced to resolve the permanent custody issues. On that day, the parents entered into a stipulation, consistent with the recommendations of the GAL, granting sole custody of the two children to the mother with visitation rights for the father. The trial did not conclude on that day, however, and was continued until December 4, 1991.
On September 29, 1991, Eric sent a letter to the GAL in which he expressed frustration over the representation of his interests. Eric explained that he did not want to live with his mother under any conditions, that he felt physically and psychologically abused by her, and that he felt the GAL was not representing his interests to the trial court. Eric further stated that he was terminating the GAL's services. Eric sent another letter to the trial court judge, along with a copy of his letter to the GAL, in which he explained that he had fired his GAL because of the handling of his case.
On October 7, 1991, the trial court entered a temporary order requiring that Eric be permitted to live with his father until further order of the court. On November 4, 1991, the trial court entered an interim order awarding sole custody of Eric to the mother with modified visitation rights for the father. On December 4, 1991, the trial on the permanent orders concluded, and the trial court awarded permanent sole custody of the children to the mother.
Eric continued to experience substantial difficulty in his living arrangements with his mother after the trial on the permanent orders. A copy of a summons and complaint in the record indicates that the mother's live-in boyfriend was criminally charged on December 15, 1991, with assaulting Eric. Although charges ultimately were dismissed, numerous other incident reports in the record detail various police and social services responses to domestic altercations between Eric and his mother. In response to these problems, the trial court ordered a custody evaluation for Eric on April 10, 1992. 3
On the same day as the order for a custody evaluation, the Children's Legal Clinic (CLC) filed an entry of appearance on Eric's behalf and asked the court to change sole custody of Eric from the mother to the father. The mother opposed CLC's entry of appearance for Eric on the grounds that an attorney had been appointed to represent Eric's interests. She also filed a motion opposing the motion to modify the custody orders.
On June 15, 1992, the trial court denied CLC's motion to enter its appearance on Eric's behalf. The trial court held that an attorney had been appointed to represent Eric's interests with respect to custody, support and visitation and that another attorney was unnecessary. The court also held that the GAL is bound to the best interests criteria set forth in section 14-10-124, 6B C.R.S. (1987 & 1994 Supp.), under which the wishes of the child were simply one of the elements to be considered. Finally, the trial court denied a motion by CLC to permit Eric to proceed in forma pauperis. The trial court resolved the custody arrangements on November 5, 1992, when it awarded sole custody to the father and suspended all court-ordered visitation between Eric and his mother.
Eric, represented by CLC, appealed to the court of appeals from the trial court's order denying CLC's entry of appearance. In an unpublished decision, the court of appeals declined to render a decision on the merits because the issue presented by Eric was moot. The court of appeals held that since Eric was now in his father's custody and his mother was not granted any visitation rights, Eric received what he desired, and CLC's attempted entry of appearance for purposes of modification of custody was a moot issue. Thereafter, we granted Eric's petition for writ of certiorari to review the court of appeals' decision.
We disagree with the court of appeals and hold that the issue is not moot. On the merits of the claim, we hold that a child is adequately represented by the statutorily-appointed attorney and that such representation satisfies all constitutional requirements.
The court of appeals did not reach the merits of this case because it found that the issue of Eric's representation was mooted by the trial court's ruling awarding custody to Eric's father. Appellate courts will not render opinions on the merits of an appeal when the issues presented become moot because of subsequent events. American Drug Store, Inc. v. City and County of Denver, 831 P.2d 465, 469 (Colo.1992); Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 426-27 (Colo.1990). "A case is moot when a judgment, if rendered, would have no practical legal effect upon the existing controversy." Van Schaack Holdings, Ltd., 798 P.2d at 426. Because we find that a judgment would have a practical legal effect, we hold that the issue is not moot.
The issue of Eric's right to representation by counsel is not moot because he is still a minor subject to the jurisdiction of the trial court in matters of custody, support and parenting time. A court retains jurisdiction over child custody issues under the UDMA until the child reaches the age of emancipation. 4 See Koltay v. Koltay, 667 P.2d 1374, 1376 (Colo.1983) (); Gonzales v. District Court, 629 P.2d 1074, 1076 (Colo.1981) ().
In this case, CLC filed an entry of appearance on Eric's behalf and simultaneously filed a separate motion to modify custody of Eric. The entry of appearance was not expressly limited to the motion to modify custody. In the April 10, 1992, custody hearing, CLC stated that it did not intend to represent Eric in the same capacity as the GAL:
I think clearly we do have a conflict here, and Eric has contacted the guardian ad litem on numerous occasions asking for certain remedies.
One of those remedies is to ask for a change of custody, and Mr. Prentiss [the appointed attorney] is under no obligation to follow direct wishes as he represents--direct wishes as he [Mr. Prentiss] represents his [Eric's] best interests. Therefore Eric needs an attorney for this Court to hear what he wants.
CLC's statement and the unrestricted nature of its motion demonstrate that CLC seeks to represent Eric's wishes whenever they conflict with the appointed attorney's opinion. 5 Indeed, even the GAL conceded that such ongoing representation might be helpful. 6
Furthermore, because of the nature of this case, it is likely that the issues of custody, visitation, and support will arise periodically until Eric is emancipated. The record reflects that Eric has moved frequently between his mother and his father since the beginning of these proceedings in 1989. 7 If the custody issue arises again, another dispute between the GAL and Eric as to Eric's "best interests" is probable. As such, the representation of Eric's "interests" in the underlying proceeding has not concluded and, even though the single motion concerning his custody was resolved, the right to representation is still at issue.
Having determined that this issue is not moot, we will address the substantive issues presented by Eric but not reached by the court of appeals. Eric makes various arguments to show that he has a statutory right to choice of counsel and independent representation of his wishes. We will address each argument in turn.
Eric asserts that the right to retain counsel of choice and to initiate proceedings regarding his welfare is a statutory right provided under section 14-10-123.4, 6B C.R.S. (1987), which states:
Rights of children in custody matters. The general assembly hereby declares that children have certain rights in the determination...
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