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In re Marriage of Tibbetts

Court of Appeals of Colorado, Third Division

August 9, 2018

In re the Marriage of Sharon D. Tibbetts, n/k/a Sharon D. Williams, Appellee, and Ronald L. Tibbetts, Appellant.

          Mesa County District Court No. 11DR278 Honorable Brian J. Flynn, Judge

          Kay Snider, Grand Junction, Colorado, for Appellee

          Catherine Burkey, Grand Junction, Colorado, for Appellant

          OPINION

          FOX, JUDGE

         ¶ 1 This post-dissolution of marriage appeal involving parenting time for the child of Ronald L. Tibbetts (father) and Sharon D. Tibbetts, now known as Sharon D. Williams (mother), raises this question: Is an appeal of a parenting time order mooted when the child who is the subject of the order turns eighteen while the appeal is pending? Answering this question "yes," we dismiss the appeal.

         I. Background

         ¶ 2 The parties married in 1998 and have one child, who was born on November 14, 1999. When the marriage ended in 2011, the court adopted their stipulated parenting time plan and incorporated it into the decree. The parenting plan was modified in 2014, again by the parties' stipulation, which the district court adopted.

         ¶ 3 In 2016, father requested that the parenting plan be terminated and that the child, who was then sixteen years old, be free to determine her own parenting time schedule. Mother responded that lack of a parenting plan would not be in the child's best interests. After a hearing, a district court magistrate denied father's motion to terminate the parenting plan. The magistrate found that the existing plan was working despite the child's "avowed dislike of it" and that the then seventeen-year-old child was "not yet an adult, and not yet ready to go without a parenting plan altogether."

         ¶ 4 On father's petition to the district court for review of the magistrate's order, the court adopted the order. Father then appealed to this court, raising the following issues: (1) whether the magistrate erred in finding that a court cannot delegate parenting time decisions to both parents; (2) whether the magistrate erred by applying the endangerment standard in addressing father's motion to terminate the parenting plan; (3) assuming the endangerment standard applied, whether evidence showed endangerment; (4) whether evidence showed that father had alienated the child from mother; and (5) whether the parenting time plan ordered by the magistrate is in the child's best interests.

         II. Mother's Motion to Dismiss the Appeal

         ¶ 5 Father filed his opening brief on November 13, 2017, the day before the child turned eighteen. Mother then moved to dismiss the appeal, contending that because the child is now an adult, the parenting time issues father raises on appeal cannot be resolved as to her. Father responded that mother could still move for contempt based on the parenting time order and that the issue whether the magistrate erred in ruling that parenting time decisions could not be delegated to both parents was not moot. A motions division deferred the motion to dismiss to the division deciding the merits and instructed the parties to further address mootness in their briefs.

         ¶ 6 Based on the motion, the response, and the additional arguments in the briefs, we dismiss the appeal as moot.

         A. Legal Standards

         ¶ 7 An appellate court will not render an opinion when the issues presented have become moot because of subsequent events. In re Marriage of Dauwe, 148 P.3d 282, 284 (Colo.App. 2006); see Colo. Mining Ass'n v. Urbina, 2013 COA 155, ¶ 33 ("The power of judicial review simply does not extend to moot questions."); Giuliani v. Jefferson Cty. Bd. of Cty. Comm'rs, 2012 COA 190, ΒΆ 15 ("Where ...


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