Opinion
H046523
04-21-2021
In re the Marriage of LISA and LONNIE CUMMINGS. LISA CUMMINGS, Respondent, v. LONNIE CUMMINGS, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 2009-5-FL-000225) MEMORANDUM OPINION
We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Appellant Lonnie Cummings seeks review of custody and visitation orders concerning the parties' then-minor child, issued by the trial court in October 2018. The subject child turned 18 in November 2020, such that the trial court no longer has jurisdiction to make custody and visitation orders.
In his notice of appeal, Lonnie indicates he wants this court to review the orders issued on October 18, 2018, at a hearing attended by Lonnie, respondent Lisa Cummings and her attorney, and the attorney appointed to represent the parties' child. The court ordered that the child, born in November 2002, could not be forced to comply with the previously ordered custody and visitation schedule. The court also required Lonnie and the child to participate in reconciliation therapy. The court scheduled a review hearing in December 2018. Lonnie filed a notice of appeal from this order in December 2018.
The record on appeal does not include sufficient information for this court to confirm that 1) Lonnie timely noticed his appeal under California Rules of Court, rule 8.104, or 2) the October 18, 2018 order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2), as Lonnie contends in his appellant's opening brief. Because we are dismissing the appeal on other grounds, we will not seek further clarification on these issues. --------
The record on appeal was complete on February 6, 2020. Lonnie thereafter sought five extensions of time in which to file his opening brief. Lonnie filed his opening brief on August 31, 2020; he thereafter filed a motion to augment the record, which this court granted on October 20, 2020. Lisa did not file a respondent's brief.
The parties' child turned 18 on November 7, 2020. In March 2021, this court ordered Lonnie to show cause by letter brief why the appeal should not be dismissed as moot because the child had reached the age of majority. Lonnie timely responded to the order to show cause.
"A case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief. [Citation.]' [Citation.] 'When no effective relief can be granted, an appeal is moot and will be dismissed.' [Citations.]" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.) Where a pending case poses an issue of broad public interest that is likely to recur and evade review, this court does have inherent discretion to review the issue after it is rendered moot. (Id. at pp. 214-215.) Appellate courts are reticent to exercise such discretion when the resolution of the issue concerns a factual determination that must be resolved on a case-by-case basis, making it unlikely that the resolution of the appeal would provide guidance in future matters. (Id. at p. 215.)
Here, the trial court lost jurisdiction to make custody and visitation orders pertaining to the parties' child when she turned 18 in November 2020. (See Fam. Code, § 3022; In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 594.) As the subject custody and visitation order effectively terminated by operation of law, there is no practical impact or effective relief this court can provide Lonnie.
In response to the order to show cause, Lonnie concedes that he is no longer seeking new custody and visitation orders, and that the issue of therapy is now moot given that the child has reached the age of majority. Yet, he alleges that his appeal "consists of additional issues other than custody and visitation issues," stating, "The majority of Appellant's Appeal Brief concerns Appellant's rights being violated in the Family Court. Appellant's Brief seeks multiple types of relief, including, but not limited to, declaratory relief, such additional or different relief as the Court deems just and proper, declaration of rights, and review of law and order." Lonnie asks this court to make rulings about the constitutionality of the proceedings leading to the October 2018 order, and to address his complaints that the trial court and minor's counsel violated both statutory duties and Lonnie's constitutional rights. He also asks this court to declare that the minor's counsel statute and the best interest of the child standard employed in custody proceedings are unconstitutional. Thus, he contends the appeal is not moot.
"[T]he 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." (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863; accord Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 (Eye Dog Foundation).) While we will not dismiss an appeal "where, despite the happening of the subsequent event, there remain material questions for the court's determination," an exception that has been applied to actions for declaratory relief (Eye Dog Foundation, at p. 541), the fact remains that there are no material questions remaining relative to the custody and visitation proceedings in the trial court action, as the child is no longer subject to the trial court's jurisdiction in that regard. Thus, this court's review of the October 2018 order could not affect the parties' rights in the future as it pertains to custody and visitation.
Lonnie contends the issues raised in his appeal have "Statewide implications," suggesting he believes we should exercise our discretion to review the matter despite its mootness. We decline to do so. While issues regarding custody and visitation proceedings can be said to be of broad public interest, the allegations Lonnie raises in his opening brief are specific to the facts of this case. Lonnie has not shown that the issues are likely to recur and/or evade review in other factual circumstances.
DISPOSITION
The appeal is dismissed as moot.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.