Guardianship of Melissa W. (2002)

Guardianship of MELISSA W., a Minor.

FRAN W. et al., Petitioners and Appellants, v. TERRY W., Objector and Respondent.

[Modification of opinion (96 Cal.App.4th 1293) with no change in judgment.]

THE COURT.-

It is ordered that the opinion filed herein on March 19, 2002, be modified as follows:

Replace Section 3 of the Discussion, at page 9, line 15, through page 11, line 2 [96 Cal. App. 4th 1300, line 20, through page 1301, line 16], and including footnote 7, with the following revised Section 3:

3. Sanctions for frivolous appeal.

Father requests monetary sanctions for grandparents' prosecution of a frivolous appeal.

"[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive -- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650, italics added.)

Having reviewed the record, we conclude that under either an objective standard (see, e.g., Maple Properties v. Harris (1984) 158 Cal. App. 3d 997, 1008-1009 [sanctions imposed because appeal indisputably lacked merit]), a subjective standard (see, e.g., In re Marriage of Stich (1985) 169 Cal. App. 3d 64, 77 [sanctions imposed because appeal was pursued solely for purpose of delay]), or a combination of the two standards (see, e.g., Pierotti v. Torian (2000) 81 Cal. App. 4th 17, 32, fn. 9 [frivolous nature of appeal provided evidence it was prosecuted solely for purpose of delay]), this appeal is frivolous.

In compliance with Flaherty's procedural requirements, we advised the parties we were considering the imposition of sanctions and pursuant to said [97 Cal. App. 4th 813b] advisement, we heard oral argument on the subject. Father's counsel filed a declaration seeking fees and grandparents' counsel responded thereto. This opinion constitutes the written statement of reasons required by Flaherty. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 654.)

An appeal that may have been meritorious when commenced can become frivolous by the occurrence of subsequent events which render the appeal moot. (Hale v. Laden (1986) 178 Cal. App. 3d 668, 674-675; Wax v. Infante (1983) 145 Cal. App. 3d 1029, 1031.) It is the duty of appellants and their counsel promptly to dismiss an appeal once it becomes moot "and not put respondent, his counsel, and this court to the time and expense of reviewing an appeal that had become moot . . . ." (Wax v. Infante, supra, at p. 1031.)

Even assuming the appeal may have been meritorious when commenced, until the marriage is judicially annulled, Melissa's marriage emancipates her by operation of law. This state of affairs renders moot the appeal from the judgment denying the guardianship petition. Nonetheless, grandparents and their counsel persisted in prosecuting the appeal, thereby putting father and this court to needless time and expense.

Father's counsel, Freda D. Pechner, submitted a declaration and supporting exhibit seeking $22,803.75 in legal fees incurred in connection with this appeal. We have examined counsel's declaration and the opposition thereto and heard oral argument on this issue. Based thereon, we conclude the reasonable amount of the expenses incurred by father in defending this appeal following the July 2, 2001 marriage is $13,004. fn. 7

[There is no change in the judgment.]

FN 7. The court is aware that a number of proceedings are pending in El Dorado County, including an action to annul the purported Bahamian marriage and a damages action against grandparents and their counsel. However, to reiterate, the only issue to be decided by this court in this opinion is whether the instant appeal is subject to dismissal, and the father's concomitant request for monetary sanctions.