Marriage of Klaus and Null
Filed 10/15/13 Marriage of Klaus and Null CA1/2
California Rules of Court, rule 8.1115(a), prohibits
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
In re the Marriage of ASHLEY
KLAUS and CHRISTOPHER NULL.
ASHLEY
KLAUS,
Appellant,
v.
CHRISTOPHER
NULL,
Respondent.
A138492
(San
Francisco County
Super. Ct.
No. FDI-09-771194)
INTRODUCTION
Respondent,
Christopher Null has moved to dismiss
appellant, Ashley Klaus’s appeal of the trial
court’s March 20, 2013,
order on the ground that the court’s subsequent vacation of that order moots
Klaus’s appeal. The motion is granted
and the appeal is dismissed. Null also
seeks sanctions, a request we deny.
FACTUAL AND PROCEDURAL BACKGROUND
Null and Klaus
were divorced in 2010. At the time this
appeal was filed their daughter was ten and their son was six.
On
June 22, 2011, Null and
Klaus entered into a stipulated
follows: Null and Klaus have joint legal
custody of their daughter and son and a 70-30 custody schedule. Under this schedule, the children live
primarily with Null in San Francisco. They have a number of weekend visits with
Klaus during the school year and spend substantially all of the summer with
her.
Null
and Klaus also agreed that if either of them moved, they would revise the
agreement. In the event that, after
required counseling and mediation, they were unable to agree on a revised
agreement, the court would apply the “best interests of the child†standard to
the manner in which the agreement would be revised.
On
December 14, 2012, Klaus
filed a motion to revise the agreement to essentially reverse the original
custody arrangement to permit the children to live with her in Oregon
during the school year with weekend and summer visits with Null. Klaus also requested the appointment of a
custody evaluator and an order restraining Null from moving or enrolling the
“prior to judicial decision.â€
On
December 31, 2012, Null
filed a response to Klaus’s motion, asking the court to maintain the status
quo, arguing it was in the children’s best interests to do so. Null also made an additional request that the
court “confirm†that he could relocate from San Francisco
to Marin County. Null indicated that he would consent to the
appointment of Dr. Perlmutter to conduct a “limited custody evaluation to
supplement his custody-evaluation report, dated 12/23/10.â€
At
the time, daughter was in the fifth grade and son in the second grade. Null contended that a move to Novato
would place the children in better schools and would not impact Klaus’s time
with the children.
Klaus
opposed Null’s request to move to Novato
and asked the court to appoint a custody evaluator to replace Dr.
Perlmutter.
On
February 5, 2013, the court
heard Klaus and Null’s motions. Klaus
represented herself; Null was represented by counsel. In an order filed March 20, 2013,
the court denied Klaus’s motion
based on a finding of no change in circumstances. The court also ordered Null and Klaus to
complete mediation by April 5, 2013,
regarding Null’s request to move to Novato.
Null
and Klaus were unable to resolve through mediation the issue of Null’s move to Novato.
On March
29, 2013, Null requested that the court clarify an “[a]mbiguous
provision of custody order†and approve his “[r]elocation of minor children to
Marin Co.†Null again argued that his request
to move to Novato did not require Klaus’s approval because it did not affect
her custody arrangement. Null argued that, in the alternative, the
move was in the children’s best interest.
This matter was set for May 2,
2013.
On
April 24, 2013, Klaus appealed from the court’s March 20, 2013, order and moved
to stay the May 2, 2103, hearing on Null’s proposed move to Novato, pending her appeal.
On
April 25, 2013, the court
heard Klaus’s request for a stay. Before
ruling on the stay, however, the court announced that it was “prepared on my
own motion to reconsider, to vacate my order denying Ms. Klaus’s motion, and I
will set that motion for hearing on May 2nd, along with Mr. Null’s motion. That to me seems like the most efficient way
to get to the finish line . . . .†The court explained that it had not intended
to employ anything other than the best interests of the child standard. The court further stated that “I’m saying
I’m changing my mind.†The court then
announced that it was “going to withdraw and vacate my order denying Ms.
Klaus’s motion, and I’m going to set that motion for hearing on May 2nd to take
place with the trial of Mr. Null’s motion.â€
Noting that it had not yet ruled on the stay request, the court then
ordered the case stayed. It also
observed that it did so reluctantly because “I think that the consequence of
what I just did is probably going to moot the appeal, and so as soon as the
Court of Appeals does something with that appeal, then we will have this matter
back on calendar.â€
On
August 15, 2013, Null filed
a motion to dismiss on the ground of mootness.
He also sought sanctions.
DISCUSSION
A. Mootness
The
trial court was correct that this appeal is moot, given that the order appealed
from was vacated by the court the day after the appeal was filed. In fact, we can think of few clearer examples
of mootness than when a trial court reconsiders and then vacates an order from which
an appeal is taken. “It is well settled that an appellate court will decide
only actual controversies. Consistent therewith, it has been said that an
action which originally was based upon a justiciable controversy cannot be
maintained on appeal if the questions raised therein have become moot by
subsequent acts or events.†(
Cal.App.3d 1, 10.) Given that the trial
court’s subsequent vacation of the order appealed from leaves us no actual
controversy to decide, this appeal must be dismissed.
Klaus,
however, contends that her appeal is not moot because the trial court did not
rule on her request for an updated custody evaluation. She is incorrect. The trial court vacated its order denying her
motion, which included her request for an updated custody evaluation. In so doing, the court stated that it would
consider both parties’ motions anew—which would include Klaus’s request for an
updated custody evaluation. Nothing, therefore,
precludes Klaus from renewing this request.
B. Sanctions
Null
requests sanctions for the fees and costs he incurred in bringing the motion to
dismiss. He argues that Klaus should
have voluntarily dismissed her appeal after the trial court vacated the order
on which it was based. On this record,
we decline to impose sanctions on Klaus for her continued maintenance of this
appeal. Similarly, we reject Klaus’s
argument that sanctions against Null are appropriate. (See Cal. Rules of Court, rule 8.276(a)(1);
Cal.3d 637, 654; In re Marriage of
Schnabel (1994) 30 Cal.App.4th 747, 753.)
>
DISPOSITION
The
appeal is dismissed as moot. Null and
Klaus’s requests for sanctions are denied.
The parties are to bear their own costs on appeal.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Brick, J.*
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
