Williams v. Cavers

 

 

 

 

Filed 1/28/14  Williams v.
Cavers CA6

 

 

>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

 

 

 

California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b).  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SIXTH APPELLATE DISTRICT

 
>

AVIS WILLIAMS,   Respondent,   v.   BRYANT CAVERS,   Appellant.

H038446      (Santa Cruz County       Super. Ct. No. PA004885)

            Bryant
L. Cavers (Father) appeals from a May 2012 order awarding href="http://www.fearnotlaw.com/">physical custody of his child to her
mother, Avis L. Williams (Mother). 
Because the child turned 18 in February 2013, the order Father challenges
is moot.  We will therefore dismiss the
appeal. 

>I.  TRIAL COURT AND WRIT PROCEEDINGS

            In January 2012, Mother petitioned the
court for custody of her then 17-year-old daughter who had been living with Father
since 2006.  Father opposed the custody
change, and the parties were unsuccessful at mediating a custody plan for their
child.  The href="http://www.sandiegohealthdirectory.com/">mediator met with the
parents and the child, and he received detailed voice messages from the child’s
therapist in response to inquiries concerning emotional stability, on-going
treatment, and medication.  The mediator
prepared a recommendation for the court pursuant to Family Code section 3183,
subdivision (a) and California Rules of Court, rule 210(e)(8)(A).  He recommended that a change of residence from
Father’s Oakland home to Mother’s Santa
Cruz home occur at the end of
the 2011-2012 school year.  The Court
e-mailed the mediator’s recommendation to the parties on April 6 in preparation
for an April 9 hearing.  At the hearing, Father
objected to receiving the recommendation only three days before the hearing.href="#_ftn1" name="_ftnref1" title="">[1]  He also objected because the mediator had not
spoken directly with the child’s therapist. 
Father further informed the court that the child was seeing a psychotherapist
and taking psychotropic
medication, and he asked the court to take judicial notice of an April 2008
letter containing a therapist’s treatment summary.  The court continued the matter to May 2 to
allow the mediator to contact the child’s therapist and augment his recommendation. 

            On
April 12 Father submitted a “letter brief” to the trial court objecting to the
mediator’s recommendation and pressing why the child should remain with him.  At the May 2 hearing, the court adopted the
mediator’s unchanged recommendation and modified custody accordingly.  On May 9 Father wrote to the court objecting again
to the mediator’s recommendation, and on June 13 he filed an ex parte motion
for reconsideration.  That same day the
court denied Father’s motion without prejudice to refiling the request as a
regularly noticed motion using Judicial
Council forms.  The court also filed
its Findings and Order After Hearing (from May 2) adopting the mediator’s
recommendation in full.  On June 14 Father,
in pro per, filed a notice of appeal. 

            In
August 2012 and February 2013 this court denied Father’s petitions for
emergency stays and writs of supersedeas. 
Father filed an opening brief in January 2013 challenging the trial
court’s custody modification order, and in November 2013 he responded to this
court’s request for supplemental briefing on whether the appeal is moot.  Mother has not participated in the appeal.

>II.  MOOTNESS

            An
appeal is moot when, during its pendency and without any fault of the party who
prevailed in the trial court, an event occurs which renders it impossible for
the court to grant relief to the appellant. 
(Paul v. Milk Depots, Inc.
(1964) 62 Cal.2d 129, 132.)  This happened
here on February
24, 2013, when the parties’ daughter-the
subject of the trial court’s 2012 custody order-reached her 18th birthday.  (Fam. Code, §§ 3022 [authorizing trial court
to “make an order for the custody of a child during minority”], 3402, subd. (b)
[defining child as person under 18 years old], 6500 [defining minor as same].) 

            Father
contends that his appeal is not moot under the “continuing public interest”
exception to the mootness rule.  Under
that exception, the resolution of an appeal on its merits is appropriate where
the appeal presents a question of continuing public interest that is likely to
recur.  (John A. v. San Bernadino City Unified School Dist. (1982) 33 Cal.3d
301, 307.)  In John A., the Supreme Court applied the exception to the process due
a student facing expulsion from a public school.  (Ibid.)
 In the other cases cited by Father,
courts have found a continuing public interest regarding the application of
antitrust laws to a local board of realtors multiple listing service practice (>Marin County Bd. of Realtors, Inc. v.
Palsson (1976) 16 Cal.3d 920, 923-924, 929), the constitutionality of a municipal
code requirement for candidates to be placed on an election ballot (>Green v. Layton (1975) 14 Cal.3d 922,
924-925), and the constitutionality of a statute regulating public solicitation
of funds on behalf of blind persons (Eye
Dog Foundation v. State Bd. of Guide Dogs for the Blind (1967) 67 Cal.2d 536,
542).

            In
supplemental briefing invited by this court, Father identifies the following claims
of trial court abuse as questions of “continuing public interest” that “will recur
in a family court setting”:

            (1)  Serving a mediator’s recommendation three
days before a hearing, contrary to Family Code section 3111’s 10-day notice
requirement;

            (2)  Adopting a mediator’s recommendation that did
not comply with California Rules of Court, rules 5.220(e)(2)(C)(iv)-(v);

            (3)  Adopting the recommendation of a mediator who
did not “assess the needs and interests of the child” under Family Code section
3180, subdivision (a); and

            (4)  Foregoing the “change in circumstances”
standard in granting a change in custody.

            We
do not consider these questions to rise to the level of continuing public interest.  Father does not challenge the
constitutionality of any law, nor does he demonstrate how any segment of the
public will be affected by resolution of the issues presented above.  This is particularly true in light of Father’s
misconception that Family Code section 3111 and California Rules of Court, rule
5.220 somehow apply to this case.  They
do not.  Those provisions apply to child
custody evaluations, not to a mediator’s custody recommendation.  (Compare Fam. Code, § 3111 [child custody
evaluation] with § 3183 [mediator recommendation].)  This appeal implicates only the discretion of
the trial court in modifying the physical custody of an individual child for a
short period of time-the nine remaining months of her minority, now passed.

            In
his supplemental briefing, Father asks that he be refunded his appellate filing
fees in the event his appeal is determined to be moot.  We are not aware of any provision for a
refund on that basis, and we deny the request. 
(Cal. Rules of Court, rules 8.25(c), 8.26.) 

III.  DISPOSITION

            The
appeal is dismissed as moot. 

 

                                                                        ____________________________________

                                                                        Grover,
J.

 

 

 

 

>WE CONCUR:

 

 

 

 

____________________________

Bamattre-Manoukian, Acting
P.J.

 

 

 

 

____________________________

Márquez, J.