Opinion
DA 21-0223
10-26-2021
IN RE THE PARENTING OF B.K., A minor child. JESSICA SMALLING, Petitioner and Appellee, and JASON KLUBBEN, Respondent and Appellant.
ORDER
Appellant Jason Klubben, via counsel, appeals the Fourth Judicial District Court's April 16, 2021 Findings of Fact Conclusions of Law and Order Establishing Temporary Guardianship (Temporary Guardianship Order). The Temporary Guardianship Order was entered in Missoula County Cause No. DG-21-1 i. in which B.K/s paternal grandparents (Grandparents) petitioned for guardianship of B.K. The court further ordered that a copy of the order be filed in DR-2016-476, this parenting plan case. Klubben appeals this order in relationship to the parenting plan case.
Klubben filed his Notice of Appeal on May 11, 2021, and timely filed his Opening Brief after an extension of time on August 23, 2021. This matter came to the Court's attention when Appellee Jessica Smalling, who is self-represented, neither filed a timely response brief nor requested an extension of time to do so. Having read Klubben's Opening Brief and having thoroughly reviewed the underlying District Court record both in this matter and in DG-21-11, we have determined that dismissal of this appeal is warranted.
Klubben and Smalling have a longstanding dispute over parenting their child. B.K., which has led to numerous matters coming before this Court. The most recent matters are the present appeal and another appeal of the same order at issue here, which was filed as an appeal in DG-21-11 and designated by this Court as DA 21-0222. That appeal was dismissed on Klubben's motion on August 20, 2021, three days before he filed his Opening Brief in this appeal.
In this remaining matter, Klubben raises three issues in his Opening Brief. First, he alleges that the District Court violated Klubben's constitutional rights by granting temporary, guardianship of B.K. Second, he alleges that the District Court abused its discretion by failing to issue an amended parenting plan and by failing to make the necessary findings of fact and conclusions of law regarding the parenting plan dispute. Third, he argues that the Temporary Guardianship Order is an appealable order.
Since Klubben's third issue is the threshold issue, we address it first. Under M. R. App. P. 6(4)(a), a district court's order granting temporary guardianship is immediately appealable. In re Guardianship of J.S.M., 2021 MT 86, ¶ 10, 404 Mont. 21, 484 P.3d 939. Although Klubben urges this Court to conclude that the order should be deemed a final order pursuant to M. R. App. P. 6(1), there is no need to do so as it is appealable under Rule 6(4).
Next, we consider Klubben's first issue, which is whether the District Court violated his constitutional rights by granting temporary guardianship of B.K. to her Grandparents. Klubben asks this Court to reverse the Temporary Guardianship Order and remand the matter to the District Court for a new trial. Setting aside the question whether the Temporary Guardianship Order, entered in DG-21-11, is appealable under DR-16-476, and issues of service, we find no basis for appeal of this issue as it is moot. The Temporary Guardianship Order provided that it would expire on July 9, 2021. The District Court reiterated this in an Order issued June 22, 2021, in which it stated, "[T]he guardianship issued in related case DG-21-11 will expire on July 9, 2021, at which point the parenting plan set forth in DR-16- 476 will control parenting in this matter." In Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶19, 293 Mont. 188, 974 P.2d 1150, we explained:
In this appeal, Klubben served only Smalling, who is self-represented. In DR-16-476, Smalling is the Petitioner and Klubben is the Respondent. However, in DG-21-11, B.K.'s paternal grandparents (Grandparents) are the Petitioners and Klubben and Smalling are the Respondents. Klubben served Grandparents in DA 21 -0222 which, as noted above, was dismissed upon Klubben's motion prior to the filing of any appellate briefs. Although we dismiss this appeal on other grounds, Klubben's failure to serve the opposing party would provide alternate grounds for dismissal.
A matter is moot when, due to an event or happening, the issue has ceased to exist and no longer presents an actual controversy. Ruckdaschel v. State Farm (1997), 285 Mont. 395, 396, 948 P.2d700, 701. A question is moot when the court cannot grant effective relief. Turner v. Mountain Engineering and Const., Inc. (1996), 276 Mont. 55, 59, 915 P.2d 799, 803. If the parties cannot be restored to their original position, the appeal becomes moot. Martin Development Co. v. Keeney Const. Co. (1985), 216 Mont. 212, 219, 703 P.2d 143, 148.Shamrock Motors' statement of the rule precisely describes the situation here. The temporary guardianship ceased to exist on July 9, 2021. It therefore no longer presents an actual controversy. Reversing the Temporary Guardianship Order as Klubben requests would not grant effective relief and, the temporary guardianship having already concluded, this Court cannot restore the parties to their original position. This issue on appeal is thus moot.
Finally, we consider Klubben's second issue. In his Opening Brief, Klubben asserts that the District Court abused its discretion by failing to address his Motion to Amend Parenting Plan, which was the purpose of the District Court's April 15, 2021 hearing in which it ultimately decided to award temporary guardianship to Grandparents. Klubben argues that under §§ 40-4-212 and -219, MCA, the court was obligated to make findings as to the statutory factors for determining a parenting plan and to determine whether a substantial change in circumstances had occurred which would in turn require the court to determine B.K.'s best interests.
We have reviewed the transcript of the April 15, 2021 hearing, which was submitted to this Court as part of the record on appeal. The transcript reveals that the District Court did not rule on Klubben's motion because it had not heard all the evidence at the conclusion of the time available for the hearing that day. The court instead informed the parties that "we're not done with this," and set the matter to continue on Friday, July 9, 2021, at 9:00 a.m. to hear additional witnesses and to obtain more information about Smalling's availability to parent. However, the District Court vacated the July 9 continuation once it received notice of this appeal. We cannot fault the District Court for failing to rule on a pending motion where it was divested of jurisdiction prior to it having heard all the necessary evidence. Since Klubben removed this case from the District Court's jurisdiction to appeal the District Court's failure to rule on a motion which was not yet ready for ruling, we conclude that Klubben's appeal of this issue was premature.
IT IS THEREFORE ORDERED that this appeal is DISMISSED without prejudice, and this matter is REMANDED to the District Court for further proceedings as necessary.