Opinion
G037095
5-24-2007
In re Marriage of TRACEY and JOHN GAMBLE. TRACEY GAMBLE, Respondent, v. JOHN GAMBLE, Appellant.
Gilbert & Marlowe, Richard C. Gilbert for Appellant. Hughes & Sullivan, Bruce A. Hughes and Lisa Angelica DiGrazia, for Respondent.
NOT TO BE PUBLISHED
The trial court denied John Gambles request to modify a prior child custody and visitation order that had granted his ex-wife, Tracey Gamble, sole custody of their two children. At the hearing, the court ordered John to pay $4,000 towards the minors counsels attorney fees. Johns appeal from these two rulings lacks merit, and we affirm the orders.
As is the practice in marital dissolution cases, and for the sake of clarity, we will refer to the parties by their first names. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn.1.)
I
John and Tracey married in 1988 and separated in 2003. They have a son, Joseph, who is now 18 years old, and a daughter, Samantha, who is now 10 years old. Initially, the parties agreed to a temporary order of joint legal and physical custody. They were ordered to participate in therapy with Joseph.
After a few months, Tracey asked the court to modify the visitation schedule, declaring "that [John] is working very hard to undermine my relationship with both of my children, and I fear that if this continues that Joseph will run away, harm himself, or me and his sister." After D. Mann, Ph.D., submitted a lengthy child custody evaluation, the court ordered joint legal custody of both children, except Tracey was to have sole power to make educational and psychological decisions regarding the children. Tracey was granted sole physical custody of the children. John was given monitored visitation. The court appointed a "special master" to monitor the parties and keep in contact with the childrens therapists.
During the summer of 2005, John obtained a new attorney, and his request to terminate the special masters services was granted. However, the court determined monitored visitation would continue. Shortly thereafter, minors counsel filed a status report suggesting John complete a 52-week batterers program, two Alcoholic Anonymous meetings per week, and a parenting class. Minors counsel also recommended the parents participate in joint counseling sessions.
At a hearing in September 2005, the court determined there had been a substantial change of circumstances because John had completed therapy classes, and he "deserve[d] the chance to prove himself as an adequate parent." He was given visitation on weekends with odd-numbered Saturdays. The court also appointed Carolyn Nishimoto to act as John and Traceys co-parenting counselor.
At the time, Joseph (then 15 years old) was attending a military school in San Diego. After a weekend visit with his father in February 2005, John refused to return Joseph to the academy. John claimed his son had threatened to run away if forced to return. Tracey believed Josephs unwillingness to return to school was due to his desire to make his father happy. She claimed John had told Joseph repeatedly he did not want Joseph to be in the academy and should live with him. Tracey said she knew John had recently told Joseph he was facing contempt charges for not being able to afford the school tuition. In reality, John was being charged for contempt due to his failure to pay child support. Tracey asserted the prospect of John going to jail because of his school tuition was devastating news to Joseph. In addition, Tracey stated Joseph has much more freedom and minimal boundaries when he is with his father, and "[John] was more interested in being [Josephs] friend rather than his parent."
After the above incident, Tracey filed an order to show cause (OSC) to modify custody and visitation. At the hearing in April 2005, the court awarded Tracey sole legal and physical custody. John was granted monitored visitation only. The court stated John was "in denial of his using intimidation and aggressive behavior and in denial of his sabotaging the parenting [by Tracey]."
Tracey moved Joseph to a private school for the summer. At the military academy, Joseph was having problems with peers, authority figures, following directions, breaking rules, and fighting. At the private school, Joseph was suspended due to an incident that occurred during a school trip. Tracey was told Joseph could finish the summer at the school, but could not enroll in the fall.
During the summer, Joseph continued to exhibit angry and self-destructive behavior. He drank alcohol, smoked, and once took his mothers car at night after she fell asleep. After one angry outburst in June, Joseph physically harmed his little sister. Tracey discussed the incident with Josephs therapist, and they determined Joseph was out of control and needed more help than weekly therapy and Samantha needed protection.
Tracey enrolled Joseph in Cross Creek Academy, an accredited residential treatment facility in Utah. Minors counsel described the facility as being for boys "that do not have a criminal record, that are not suicidal, psychotic, violent, assaultive, highly depressed, or have significant mental or emotional problems . . . . It is a program based upon a behavior modification model, where points are given and there are both positive and negative consequences for a students behavior."
After Joseph was away at Cross Creek for approximately five months, John filed an OSC seeking sole custody of Joseph and unmonitored visits with Samantha. John wanted Joseph to leave Cross Creek and live with him to "give him a chance to be a normal teenage boy and salvage what is left of his high school years." John asserted he had spoken with counselors at Cross Creek, who had said Joseph was having a very hard time and was not showing any signs of improvement. The counselors described Joseph as an angry young man who did not feel like he belonged there. He was appalled to learn Joseph was being forced to wear an orange shirt at school, because he got into fights and had not "earned the right to wear a regular school uniform." The counselors stated visitation was not yet possible, because Joseph had not achieved the level four status earned through good behavior. John concluded his son was unfairly being incarcerated and was being brainwashed.
Tracey filed a response, stating that contrary to Johns contention, she has not given up on Joseph, but rather was spending $50,000 per year to get him help. She reported Joseph was making progress "in restoring his behavior and belief systems." He was receiving good grades and looking ahead at colleges. Tracey stated her relationship with Joseph had improved significantly, and he had written her letters stating he understands why he needs to be in the treatment program. She pointed out that she has completed the first of four parent support seminars offered by Cross Creek. John dropped out after the first day, and after only two hours.
In minors counsels report, she reiterated and provided a few more details about the events described by Tracey. She reported that Joseph was very unhappy and angry when he started the Cross Creek program, and he was initially resistant to treatment. However, she concluded that in the last three months, Joseph was making more of an effort. She reported, "the staff feels, that although [Joseph] is now working on his issues, and is making changes, the old behaviors are so ingrained that it would not take much, if anything, for him to slip back into his old habits."
Counsel reported Joseph was permitted to have monitored telephone calls with his parents. However, Josephs therapist at Cross Creek, Jeff Voorhees, terminated his contact with John when it was discovered John had a very negative attitude about the program. Joseph was also allowed to write and receive letters from his parents. He writes to Tracey often, telling her about his progress and how he is feeling. Josephs first letter to John (written in December) had not yet been answered. Cross Creek had arranged for all letters to be sent to Tracey, and John told her he had not written because he did not want his letters being sent through her. However, minors counsel opined there were other factors to be considered because Josephs first letter to John accused his father of hitting and verbally abusing him.
Minors counsel informed the court Joseph recently earned level three status at Cross Creek and the staff had invited Tracey to visit Joseph as a surprise. She reported they had a good visit and were able to "talk, listen, hug, and cry together." Tracey told minors counsel that Joseph apologized to her in front of his peers, and told her he was going to work and "do what it takes." Minors counsel listed all the sources for her report, including John, Tracey, Samantha, the Cross Creek house mother, Josephs therapist at Cross Creek, Howard Asher (the local therapist), Johns correspondence and e-mails, Josephs letters, school records, and the court file. She concluded the circumstances had not changed and modification of the custody order was not warranted.
In a supplemental brief, Tracey asked the court to consider Ashers psychological reports and recommendations. Asher opined Traceys decision to enroll Joseph in Cross Creek was wise and responsible. After reviewing reports and speaking with Voorhees at Cross Creek, Asher concluded, "By all evidence and credible accounts, [Joseph] is getting the help he needs and is doing wonderfully. [Joseph], himself, has reported the positive growth he has experienced as a result of the comprehensive treatment he is receiving at Cross Creek. It would not be an overstatement to acknowledge this treatment is `life saving for [Joseph]."
Asher commented it was "disturbing that [John] . . . would want to disrupt such stability, wellness, and progress. Moreover, in phone calls with his father, when [Joseph], with pride and enthusiasm, informs his father about some positive progress at the program, his father reacts with disinterest. Also of disturbing note, is that while [Tracey] completed a series of seminars for parents as a vital part of the treatment program, [John] walked out on the first days seminar. . . . [Johns] attitude and conduct has not been lost on [Joseph] as he has been notably disappointed by his fathers lack of interest and participation in the program or its good objectives." Asher concluded John is in need of some "profound enlightenment." He recommended Joseph continue with treatment under the current custody orders.
John filed a supplemental declaration stating, "[Joseph] tells me that he hates where he is and would like to come and live with me." He complained Joseph was sent away without his knowledge, and he has not seen his son in over one year. He noted minors counsel had never talked to Joseph about his preferences. Moreover, Tracey was keeping secret the address of where she lives with Samantha.
On April 13, 2006, the court issued a minute order stating a hearing was not necessary and it would make its ruling based on its review of the entire file. The court denied Johns request to modify custody and visitation. It denied Johns and Traceys requests for attorney fees. It ordered Tracey to pay $1,000 and John to pay $4,000 of the minors counsels attorney fees. John appealed from these orders.
II
John challenges the courts refusal to modify the custody order as to Joseph, arguing the court should have considered his sons wishes before ruling. However, as pointed out in the respondents brief, Joseph turned 18 years old during the pendency of this appeal (on April 4, 2007). The family law courts jurisdiction over the custody and visitation of Joseph ended when he turned 18 years old on April 4, 2007. (Fam. Code, §§ 3022 [the court may "make an order for the custody of a child during minority"], 6500 [a minor is "under 18 years of age[]"]; see also In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 594 ["Visitation is a form of custody," and the court lacked authority to issue a visitation order regarding a child after he had reached the age of majority].) Consequently, the courts April 16, 2006 order regarding Joseph is no longer enforceable, and all Johns issues raised regarding custody and visitation as to Joseph are moot. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 648, pp. 676-677 ["Where the order is rendered ineffective by . . . emancipation of a child, an appeal from it will be dismissed as moot[]"].)
In this appeal, John does not challenge the denial of his request for unmonitored visitation with his daughter, Samantha.
All further statutory references are to the Family Code, unless otherwise indicated.
"It is settled that `the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]" (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) We recognize this court has the discretion to consider moot issues which may "`pose[] an issue of broad public interest that is likely to recur" (People v. McCoy (1992) 9 Cal.App.4th 1578, 1581, fn. 3), but such is not the case here.
III
John asserts minors counsel breached her fiduciary duty to protect Josephs best interests because she failed to communicate with him directly before the hearing. He suggests that there exists an absolute rule requiring minors counsel to interview clients to ascertain the facts relevant to custody or visitation hearings. He concludes the court should have ruled minors counsel was not entitled to any attorney fees due to this rule violation. We found no such rule.
Johns reliance on section 3151, subdivision (a), is misplaced. It provides, "The childs counsel appointed under this chapter is charged with the representation of the childs best interests. The role of the childs counsel is to gather facts that bear on the best interests of the child, and present those facts to the court, including the childs wishes when counsel deems it appropriate for consideration by the court pursuant to [s]ection 3042. The counsels duties, unless under the circumstances it is inappropriate to exercise the duty, include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain facts relevant to the custody or visitation hearings." (Italics added.)
Section 3042, subdivision (a), provides, "If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody."
Accordingly, the duty to speak to the child is not always mandatory, but rather qualified to occur "unless under the circumstances it is inappropriate[.]" (§ 3151, subd. (a).) The record shows Josephs mental state was very fragile. The staff at Cross Creek Academy reported Joseph was working on his issues, but "it would not take much, if anything, for him to slip back into his old habits." It was reasonable for counsel to conclude distracting Joseph from his treatment program, with difficult questions relating to his parents ongoing bitter custody battle, could have caused him to have a setback. Minors counsel appropriately chose to rely on other relevant sources to determine Josephs wishes and best interests, including his letters home, and interviews with his sister, therapists, counselors, and parents.
Johns reliance on Business and Professions Code section 6068 and In re Daniel S. (2004) 115 Cal.App.4th 903, 915 [court rejected claim attorney had duty to speak with mentally ill adult client represented by a guardian ad litem], is also misplaced. This authority only supports the general rule an attorney has a duty to communicate with his or her client. And we agree that in most cases, "Adequate communication with clients is an integral part of competent professional performance as an attorney." (Calvert v. State Bar (1991) 54 Cal.3d 765, 782.)
However, as noted above, in the family law context, there is a specific statute addressing a minors counsels duty to communicate with underage clients. Section 3151, subdivision (a), wisely recognizes direct communication in some cases would not be in the childs best interests. It provides counsel may use other relevant sources to gather the needed information in certain circumstances. It is settled, where a general statute conflicts with a specific statute, the specific statute controls the general one. (See Tapia v. Pohlmann (1998) 68 Cal.App.4th 1126, 1133.)
In conclusion, we found no evidence in this case suggesting minors counsel breached her fiduciary duties to Joseph. Counsel was not required to interview Joseph at Cross Creek, given the evidence of his fragile mental state, and his recent tentative progress in the treatment program. Questions regarding custody preferences can be upsetting and very emotional in the best of circumstances. We affirm the courts orders requiring John and Tracey to each pay a portion of minors counsels attorney fees.
IV
The orders are affirmed. Respondent shall recover her costs on appeal.
We concur:
FYBEL, J.
IKOLA, J.