Sposato v. Sposato, 970067

• Decision Date: 06 November 1997
• Docket Number: No. 970067,970067
• Citation: 570 N.W.2d 212
• Parties: Anthony SPOSATO, Plaintiff and Appellee, v. Robin SPOSATO, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 212

570 N.W.2d 212

1997 ND 207

Anthony SPOSATO, Plaintiff and Appellee, v. Robin SPOSATO, Defendant and Appellant.

Civil No. 970067.

Supreme Court of North Dakota.

Nov. 6, 1997.

Maureen F. White Eagle of Foughty, Christianson, White Eagle & Berg, Devils Lake, for defendant and appellant.

Todd A. Schwarz and John W. Frith of Frith, Schwarz & Steffan, Devils Lake, for plaintiff and appellee.

NEUMANN, Justice.

¶1 Robin Sposato appeals from the district court's order allowing grandparent visitation in the State of New York under NDCC § 14-09-05.1. Determining the issue is moot, we dismiss the appeal.

¶2 Robin and Thomas Sposato were divorced in 1994, with Robin receiving custody of their two daughters, Elizabeth, born June 18, 1988, and Mary, born September 23, 1989. Thomas is currently allowed eight hours of supervised visitation every two weeks. The court required supervised visitation because, during the divorce proceeding, it had found Thomas had committed emotional and sexual abuse against the children.

¶3 Anthony Sposato is the paternal grandfather of the two girls. In May 1995 Anthony requested grandparent visitation. Anthony had no previous relationship with the girls, except for attending their baptisms, which he did not recall attending. In fact, he did not recall ever seeing the children before. The district court ordered visitation in Devils Lake. Anthony exercised visitation in Devils Lake in April 1996. He spent approximately four hours with the girls, going out for breakfast, attending Mass, and visiting at the motel swimming pool. Other than the visit in Devils Lake, the children have not had contact with Anthony and only know their grandfather through pictures.

¶4 In November 1996, Anthony moved for overnight extended visitation, requesting the girls visit him and his family in New York from December 28, 1996, to January 3, 1997. Anthony made reservations and proposed to pay for the airline tickets. He also made accommodations for the girls to stay with him. Anthony is 69 years of age and in good health, but recent surgeries make travel difficult for him. Anthony also agreed to make arrangements for someone to fly with the girls if Thomas was not allowed to accompany them on the trip.

¶5 Robin opposed the visitation for a multitude of reasons including: (1) Anthony had not consulted the girls about the visitation; (2) the girls had never flown before and were apprehensive about flying; (3) the girls barely knew their grandfather, and did not know the other relatives he proposed they meet; and, (4) the girls have never slept overnight with anyone other than their maternal grandparents, not even friends. Robin also raised concerns about the possibility of the girls being left unsupervised with Thomas. In addition, a therapist at Lake Region Human Service Center who has worked with the girls for four years stated she did not feel it is in the children's best interest to travel across the country to visit complete strangers.

¶6 A hearing was held on the visitation. Assertions at oral argument on appeal suggest that before issuing its order, the trial court had ex parte communications with counsel for both parties. The trial court granted Anthony's motion and ordered the children visit him in New York from December 28, 1996, through January 3, 1997. The trial court also ordered Robin to travel with the children and stay in New York, without hearing her possible objections, if any, on the record.

¶7 The visitation did not take place due to logistical problems with the airline tickets. The only grandparent visitation the court ordered was for the period from December 28, 1996, through January 3, 1997. Robin did not appeal until February 20, 1997; she argues future grandparent visitation in New York should not be allowed.

¶8 Before addressing Robin's argument, we need to decide whether we will exercise jurisdiction to consider this appeal. This Court has often held we cannot render advisory opinions, and we will dismiss appeals if the issues become moot or so academic that no actual controversy is left to be determined. See, e.g. In re Estate of Zimmerman, 1997 ND 58, p 6, 561 N.W.2d 642; Bies v. Obregon, 1997 ND 18, p 9, 558 N.W.2d 855; Ashley Educ. Ass'n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D.1996); Gosbee v. Bendish, 512 N.W.2d 450, 452 (N.D.1994); Bjornson v. Guar. Nat'l Ins. Co., 510 N.W.2d 622, 624 (N.D.1994). The prohibition of advisory opinions requires there be an "actual controversy to be determined" before a court can properly adjudicate. Bies, 1997 ND 18, p 9, 558 N.W.2d 855 (citing State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 544 (N.D.1994)). When the occurrence of related events makes it impossible for a court to render effective relief, or when the issue has been mooted by lapse of time, no "actual controversy" exists. Id.; see also Backes v. Byron, 443 N.W.2d 621, 623 (N.D.1989).

¶9 "This court will determine a moot issue, rather than dismiss the appeal, only if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review." Ashley Educ. Ass'n, 556 N.W.2d at 668. For an issue to be of public interest it must affect the rights or interests of the public at large or have statewide ramifications. Bland v. Commission on Medical Competency, 557 N.W.2d 379, 381 (N.D.1996). While grandparent visitation rights in general are of public interest and may even raise constitutional issues of parental rights, ¹ this particular order has no statewide implications. It only affected the parties involved and questions of constitutionality were not raised at the trial court nor adequately raised on appeal.

¶10 The issue Robin has raised is moot. This is an appeal from an order granting grandparent visitation for a specific time period that has expired. Robin did not appeal the visitation order until nearly two months after the period for visitation had passed. The issue has been mooted by a lapse of time. Because the order expired before the appeal, no "actual controversy" exists.

¶11 Neither Robin nor Anthony has offered any plausible public policy reasons why this Court should entertain the appeal. This case does not involve such interests as would justify our consideration of a moot issue, nor does it involve an issue likely to be repeated without a meaningful opportunity for judicial review. Although the issue of grandparent visitation may arise again in the future, that alone does not empower us to render a purely advisory opinion. Gosbee, 512 N.W.2d at 454; Rolette Educ. Ass'n v. Rolette Pub. Sch. Dist., 427 N.W.2d 812, 814 (N.D.1988); St. Onge v. Elkin, 376 N.W.2d 41, 43 (N.D.1985). If the district court orders out-of-state visitation in the future, Robin is entitled to timely appeal and may file for stay under Rule 8, NDRAppP, and Rule 62, NDRCivP.

¶12 No request for future grandparent visitation has been filed with the trial court. Therefore, issues raised in a possible future order are not ripe for review. "An issue is not ripe for review if it depends on future contingencies which, although they might occur, necessarily may not, thus making addressing the question premature." Bies, 1997 ND 18, p 9, 558 N.W.2d 855. Addressing an issue involving mootness or ripeness would be the equivalent of rendering a purely advisory opinion. Id. at p 10, 558 N.W.2d 855. This Court is not empowered to render a purely advisory opinion merely because the issue may arise in the future. Id.

¶13 We do not know whether Anthony Sposato will request grandparent visitation in New York in the future. Even if this occurs, we do not know whether the trial court will grant his request. Because the expired order is moot and future visitation has not been requested or considered by the trial court, the issue is not ripe for appeal. We are unwilling to render a purely advisory opinion.

¶14 The appeal is dismissed.

¶15 VANDE WALLE, C.J., and SANDSTROM J., concur.

MESCHKE, Justice, dissenting.

¶16 Because I believe this case is not moot, and I would reverse this order forcing grandparent visitation, I respectfully dissent.

¶17 Additional background is useful to understand this case. Before he ever had any real contact with these grandchildren, and without asking to visit them, Anthony Sposato sued for visitation with them on May 12, 1995. His petition was consolidated with a then-pending motion by the children's father, Anthony's son Thomas, to supersede the supervised visitation imposed because Thomas had emotionally and sexually abused these children. Those motions resulted in a September 19, 1995 order that continued restricted and supervised visitation with the children's father, and also directed: "When the minor children's grandfather is exercising any visitation with the minor children and the [father] is present, this visitation must also be supervised by a third-party."

¶18 Anthony thereafter visited his two grandchildren in their hometown of Devils Lake once in April 1996 for a few hours. Again without asking, Anthony moved in May 1996 to force the grandchildren to come to his home in Pelham, New York, for a visit of nearly a week over the 1997 New Year's holiday.

¶19 After a hearing, the trial court's December 24, 1996 order compelled "overnight extended visitation [for Anthony Sposato] with his grandchildren from December 28, 1996 through January 3, 1997," directed him to "be responsible for payment of all expenses associated with the children's travel to and from the State of New York," and directed their mother to "accompany the children to and from New York," with Anthony to pay only her airfare and not "any expenses involved with [her] lodging." This order apparently came too late to adjust necessary plane reservations in that busy holiday season. ²

¶20 This injunction set a time too short for full adjudication through appellate review before its...