Other Cases Affecting Children

Guardianship of Melissa W. (March 19, 2002) 96 Cal.App.4th 1293 [ 118 Cal.Rptr.2d 42]. Court of Appeal, Second District, Division 3.

The trial court denied grandparents' petition for guardianship and found the child's father to be a fit parent.

When the child's mother died, her husband and two daughters survived her. The younger daughter was returned to her father's custody, and the grandparents petitioned for guardianship of the older daughter (the child). The trial court found that the father was a fit parent and denied the grandparents' petition. The trial court stayed the relocation order for the child to live with her father and allowed her to live with her maternal grandparents until the end of the school year. The grandparents filed their notice of appeal.

Prior to the grandparents deadline for returning the child to her father, the grandparents provided written consent for the child to get married. The grandparents' attorney prepared this paperwork and assisted the child in going to the Bahamas to get married. The attorney was one of the witnesses to the marriage and did not disclose to the Bahamian registrar the judgment denying the grandparents' guardianship. After the child was returned to her father, the grandparents requested an immediate stay of the judgment, pending appeal. The appellate court denied this stay; it was unaware of the child's marriage. Approximately a month after the child was returned to her father, he was notified of her marriage and moved for a dismissal of the grandparents' appeal.

The Court of Appeal granted the father's motion to dismiss the grandparents' appeal, ordered that he recover appellate costs, sanctioned the grandparents for prosecuting a frivolous appeal, and referred the matter to the State Bar. The trial court's denial of the guardianship was effective and binding on the parties. The grandparents therefore did not have the authority, as guardians, to consent to the child's marriage. The grandparents' attorney also undermined the trial court's judgment by participating in the procurement of a marriage designed to alter the child's legal status. By subverting the trial court's judgment, the grandparents and their attorney had forfeited their right to prosecute the appeal. The appellate court found that the grandparents and their attorney participated in the sabotaging of the trial court's judgment and these "obstructive tactics call the for exercise of this court's inherent power to impose the ultimate sanction of dismissal." The appellate court was also troubled by the attorney's failure to notify it of the marriage, although she had many communications with the court. The appellate court stated that if the marriage was valid, the grandparents' and the attorney's conduct in engineering it mooted the guardianship issue. The child's present status is that of an emancipated child. Thus, review and reversal of the judgment denying guardianship would be an idle act, because the grandparents cannot obtain any relief. The appellate court dismissed the grandparents' appeal as moot.

The appellate court heard oral argument on the father's request for monetary sanctions. An appeal should be held frivolous only (1) when it is prosecuted for an improper motive, (2) when its purpose is to harass the respondent or delay the effect of an adverse judgment, or (3) when it indisputably has no merit. In this case, the child's marriage rendered moot the grandparents' appeal from the judgment denying them guardianship, but they persisted. The appellate court direct the grandparents to pay the father $13,004-a sanction for prosecuting a frivolous appeal. The appellate court also referred the matter to the State Bar based on the "misconduct, incompetent representation, or willful misrepresentation" of the attorney. (Bus. and Prof. Code, § 6086.7(b).)