Summary
dismissing appeal of contempt adjudication when mother delivered custody of child in compliance with court order
Summary of this case from Miller v. MillerOpinion
Syllabus by the Court
1. Except in rare instances appellate courts do not decide moot questions or render advisory opinions.
2. Where a person adjudged guilty of indirect civil contempt has purged himself, the contempt proceeding is moot and an appeal will not lie from the adjudication of guilt.
Robert L. Taylor, Hutchinson, of the Hutchinson-Reno County Legal Aid Society, for appellant, Virginia Nichols.
Charles K. Hyter of Branine, Chalfant, Hyters&sHill, Hutchinson, for appellee, Ira P. Browning.
Before FOTH, P. J., and PARKS and SWINEHART, JJ.
FOTH, Judge:
This is an appeal from an order adjudging the appellant, Virginia Nichols, guilty of indirect civil contempt of court. The contempt charge grew out of appellant's failure to comply with an order, in a child custody-habeas corpus action, requiring her to deliver custody of her three children to their father.
On January 5, 1977, the trial court found appellant guilty and sentenced her to the Reno county jail until she purged herself. However, it also stayed the sentence imposed to permit her to purge herself by delivering the children at a specified time and place the following day. At oral argument counsel advised this court that the children were so delivered, and are now with their father.
Appellant was not committed for contempt, and it is apparent she never can be. The issues she presents in her appeal are serious, but they are also academic. Her position is virtually identical to that of F. G. Manzanares in Guerrero v. Capitol Federal Savingss&sLoan Ass'n, 197 Kan. 18, 415 P.2d 257. Mr. Manzanares, an attorney, was found guilty of indirect civil contempt for failing to pay over disputed money in his hands. He secured his release by placing the money in a joint control account with the clerk of the Supreme Court. The Court denied his attempted appeal, saying (p. 22, 415 P.2d p. 260):
"He thereby purged himself of any possible contempt. There is nothing left upon which this court's judgment might act. This court in the case of Carr v. Diamond, 192 Kan. 377, 388 P.2d 591, said,
" 'Appellate courts do not entertain appeals for such purpose. Reviewing courts do not decide questions which no longer exist merely to make a precedent.' (p. 380, 388 P.2d 591.)"
See also, State v. Conkling, 54 Kan. 108, 37 P. 992.
The appeal is dismissed as moot.