ON REVIEW FROM COURT OF APPEALS. CASE NO. 2012-CA-000655-ME. CAMPBELL CIRCUIT COURT NO. 03-CI-00281.
COUNSEL FOR APPELLANT: Cynthia Ann Millay.
COUNSEL FOR APPELLEE DANIEL GETTER: Blaine Jefferson Edmonds, III.
COUNSEL FOR APPELLEE A.G., A MINOR CHILD: Joshua Bryan Crabtree, Richard Alex Konkoly-Thege.
COUNSEL FOR AMICUS CURIAE AMY HALBROOK, LAW PROFESSOR: Amy Elizabeth Halbrook.
COUNSEL FOR AMICUS CURIAE KENTUCKY CHAPTER OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS: Bonnie Maryetta Brown.
As of January 1, 2011, when the Family Court Rules of Procedure and Practice (FCRPP) went into effect, Rule 6 provides that in family court actions involving a dispute over custody, shared parenting, visitation, or support, the parties may request, or the court on its own motion may order, among other things, the " appointment of a guardian ad litem." What is the role of a guardian ad litem (GAL) in a custody, shared parenting, visitation, or support proceeding? In this custody modification action involving former spouses Fonda Morgan and Daniel Getter, the trial court appointed a GAL to investigate the situation, to file a report summarizing his findings, and to make a recommendation as to the custody issues raised by the parties. Because in its view the GAL was " like [the child's] representative," the court, however, did not allow the party who disagreed with the GAL's recommendation, Morgan, to cross-examine the GAL as a witness at the custody modification hearing. Ultimately, in accord with the GAL's recommendation, the trial court ruled against Morgan, changing custody to Getter. On Morgan's appeal, the Court of Appeals panel found the trial court's approach to the GAL's role in the proceeding troubling, but because the panel deemed harmless any error that may have arisen from the GAL's conflicting roles as both advisor to the court and representative of the child, it affirmed the trial court's Order without deciding whether an error had occurred.
We granted Morgan's motion for discretionary review to consider her claim that by allowing the GAL to testify, in effect, as to both facts and opinions through his recommendation to the court, but then disallowing Morgan's cross-examination of that testimony, the trial court violated her right to due process of law. We agree with Morgan that the trial court erred by allowing the GAL to serve as both an investigator for the court and an attorney for the child. Although the case has become moot by virtue of the child having
turned eighteen years old, we recognize that the proper role of a GAL is a recurring issue of considerable public importance and, as explained more fully below, we exercise our discretion to address that issue in the context of this case.
By Decree entered in October 2003, the Family Court Division of the Campbell Circuit Court dissolved the marriage of Daniel and Fonda Getter (now Fonda Morgan). The Decree incorporated an agreement between the parties dividing their property and debts and naming Morgan sole custodian of the couple's two daughters, with Getter to have reasonable visitation. The agreement proved workable for a number of years (although Getter amassed a large debt for non-support), but in July 2011 Getter petitioned the family court to modify the custody arrangement. By then Getter had remarried and was living with his wife in Florida, where he worked as a truck driver. Morgan had likewise been remarried (twice), but was again divorced. She continued to reside in Dayton, Kentucky, a community where she and Getter had lived, and where her children attended school. The parties' older daughter, D.G., turned eighteen years old in July 2011 and at about that time moved to Tampa, Florida where she was to attend South Florida University, a college within an hour of Getter's Winter Haven, Florida home. Getter's July 2011 petition for custody of his younger daughter, A.G. (who was then almost sixteen years old), alleged a history of abuse by Morgan.
On August 15, 2011, the trial court appointed a GAL for A.G. by entry of an order stating simply that " a Guardian ad Litem is necessary to help the Court decide the case properly." In mid-October 2011, the GAL filed his report. It was largely based, according to the GAL, on his interviews with the parties and with A.G., and on his visit to Morgan's residence. For information regarding Getter's Florida residence, the GAL apparently relied on Getter and on A.G. Both parties admitted to the GAL having had altercations with A.G., each described the other's behavior as worse than his or her own, and each accused the other of trying to alienate A.G.'s affections. A.G. told the GAL that she wanted to live near her sister in Florida, and she described a volatile relationship with her mother. The GAL noted that A.G. had thus far been a successful student and appeared to be a highly motivated one. The GAL discounted Morgan's more serious accusations against Getter as belied by her having allowed A.G. to visit him, while also indicating serious concern regarding Morgan's admission that she shared her disparaging allegations about Getter with her daughters. Having considered all of these factors and satisfied that A.G. would continue to do as well in school in Florida as she had done in Kentucky, the GAL saw no reason why A.G.'s desires to be near her sister and away from her mother should not be respected. He recommended therefore, that A.G. should be allowed " the opportunity to live with her father."
The matter then came before the Campbell County Family Court on November 21, 2011. At the outset of the hearing, the court asked the parties to name the witnesses they expected to call, and Morgan informed the court that she intended to
call the GAL to question him about his report. The court advised Morgan that she would not be allowed to call the GAL as a witness, the GAL being " like [A.G.]'s representative." Morgan would, however, be allowed to challenge the report, in effect, by her questioning of the persons referred to in the report. Insisting that she had a right to question the GAL directly about his opinions and recommendation, Morgan then moved, if that questioning was not to be allowed, to strike the GAL's report. The trial court deferred ruling on that motion, and the hearing proceeded.
In addition to the parties and A.G., who all testified consistently with the GAL's report, the older daughter, D.G., testified that over a span of years she had witnessed a number of heated arguments between Morgan and A.G., the arguments on occasion involving harsh language or even blows. She also testified that Getter had never physically hurt her. One of Morgan's subsequent husbands testified that during his five-or-six-year marriage to Morgan, Morgan had seemed to him a good mother, and that he had never witnessed any physical violence between Morgan and her daughters. Morgan did not attempt to call the GAL as a witness, nor did she renew her motion to strike his report.
By Order entered December 19, 2011, the family court granted Getter's motion to modify the parties' custody of A.G., noting expressly the GAL's recommendation of that result. Finding, moreover, that Getter's establishment of an apparently stable home in Florida, D.G.'s move to a school near him, and A.G.'s experience of a deepening rift between herself and her mother were all material changes in the custodial circumstances, the court concluded that A.G.'s relocation to Florida and residence with Getter " appears to be in the best interest of the child." Accordingly, the court ruled that " custody of the child is hereby modified to joint custody between the parties, with Petitioner [Getter] being primary residential custodian." A subsequent order specified in more detail how the parties were to divide parenting time with A.G.
Morgan appealed from the final Order and challenged in particular the trial court's denial of her request to cross-examine the GAL. As noted, the Court of Appeals, although sharing the frustration many courts have expressed over the ambiguous role guardians ad litem often play in custody proceedings, concluded that in this case the GAL's contribution had not been decisive and so did not provide Morgan a ground for relief. Morgan then moved this Court for discretionary review, which we granted. Less than two months later, on August 2, 2013, before the parties' briefs had been filed, A.G. turned eighteen years old and thus ceased to be subject to the family court's jurisdiction. The first question we must face, therefore, and the question with which our analysis begins, is whether a case or controversy still exists for this Court to review.
I. Although This Case is Moot, Review is Called For and is Allowed as a Matter of Public Policy.
There is no dispute that, by virtue of A.G.'s age, Morgan's appeal is now moot. As our courts have long recognized, " [a] 'moot case' is one which seeks to get a judgment . . . upon some matter which,
when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy." Benton v. Clay, 192 Ky. 497, 233 S.W. 1041, 1042 (1921) (citation and internal quotation marks omitted; emphasis in original). Here, even were we to rule in Morgan's favor, the ruling would have no practical legal effect upon her controversy with Getter since the visitation order she seeks to have reconsidered expired when A.G. turned eighteen and can no longer be changed. See Kentucky Revised Statute (KRS) 405.020 (providing in pertinent part that parents retain legal custody of their child until the child turns eighteen years old). The general rule is, and has long been, that " where, pending an appeal, an event occurs which makes a determination of the question unnecessary or which would render the judgment that might be pronounced ineffectual, the appeal should be dismissed." Louisville Transit Co. v. Dep't of Motor Transp., 286 S.W.2d 536, 538 (Ky. 1956); Choate v. Koorsen Protective Services, Inc., 929 S.W.2d 184, 43 9 Ky. L. Summary 12 (Ky. 1996); Commonwealth, Kentucky Bd. of Nursing v. Sullivan Univ. Sys., Inc., 433 S.W.3d 341 (Ky. 2014). The concern underlying this rule as to mootness is ultimately the role of the courts within our system of separated powers, a role that does not extend to the issuance of merely advisory opinions. Commonwealth, Dep't of Corr. v. Engle, 302 S.W.3d 60 (Ky. 2010) ( citing In re Constitutionality of House Bill No. 222, 262 Ky. 437, 90 S.W.3d 692 (1936)). See also, Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 Cornell L. Rev. 393 (1996) (discussing the development of the federal justiciability doctrines including that of mootness).
As with most general rules, however, there are exceptions to the general rule pertaining to mootness. Under the " collateral consequences" exception, for example, the expiration of a criminal sentence has been held not to moot an appeal from the judgment of conviction, because there remain consequences of the conviction (such as the loss of various civil rights) deemed sufficient to keep alive the appellant's personal stake in the outcome of the appeal. Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (discussing Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). In Caudill v. Caudill, 318 S.W.3d 112 (Ky. App. 2010), the Court of Appeals applied this exception to an appeal from a domestic violence order that expired during the pendency of the appeal. The exception has also been applied to appeals from civil involuntary commitment orders. In re Alfred H.H., 233 Ill.2d 345, 910 N.E.2d 74, 331 Ill.Dec. 1 (Ill. 2009).
Another exception to the general mootness rule is the " voluntary cessation" exception. United States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). Under that exception, an appeal may proceed notwithstanding the defendant's voluntary cessation of the challenged action, a primary concern being that a dismissal in those circumstances leaves the defendant " free to return to his old ways." 345 U.S. at 632. See also Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196 (Tenn. 2009) (collecting state cases applying or considering the voluntary cessation exception). A related concern is that parties should not be free to manipulate mootness so as to frustrate, after the investment of significant judicial resources, the " public interest in having the legality of the[ir] practices settled." W.T. Grant, 345 U.S. at 632. See also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382,
146 L.Ed.2d 265 (2000). And see, Matthew I. Hall, The Partially Prudential Doctrine Of Mootness, 77 Geo. Wash. L. Rev. 562, 596-98 (2009) (discussing this aspect of the voluntary cessation exception). In light of this concern, this Court has issued opinions notwithstanding eleventh-hour settlements rendering, and often deliberately meant to render, the cases moot.
More often, however, exceptions have been recognized for cases which, although moot, concern alleged injuries or violations which are " capable of repetition, yet evading review," Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658 (Ky. 1983) or which concern a " question [that] is of public interest." Brown v. Baumer, 301 Ky. 315, 191 S.W.2d 235 (1945). Although our cases have tended to conflate these two exceptions and to refer to both of them under the " capable of repetition" rubric, they have distinct, albeit overlapping, elements and should be distinguished.
The exception for cases " capable of repetition, yet evading review," has two elements: (1) the challenged action must be too short in duration to be fully litigated prior to its cessation or expiration, and (2) there must be a reasonable expectation that the same complaining party will be subjected to the same action again. Philpot v. Patton, 837 S.W.2d 491 (Ky. 1992). In Meigs, for example, the trial court, prior to trial of a criminal case that had attracted a great deal of public attention, issued an order excluding the press from voir dire. Several newspapers brought suit challenging the order, but before their challenge could be fully litigated it was rendered moot by the completion of jury selection. Rejecting the contention that the case should be dismissed on that ground, this Court invoked the " capable of repetition" exception. Specifically, the Court noted that (1) because voir dire typically occurs in a matter of a few days, at most, an order limiting the press's access will not be in effect long enough to permit challenges to be fully litigated; and (2) the newspaper-complainants were reasonably likely to be confronted with similar orders in other noteworthy cases. See also, Bolton v. Irvin, 373 S.W.3d 432 (Ky. 2012 ) (declining to dismiss Commonwealth's appeal from moot ruling concerning district-court-imposed bail bond because district court bail-bond orders are routinely of short duration and because the issue was apt to confront the Commonwealth again).
In Commonwealth v. Hughes, 873 S.W.2d 828 (Ky. 1994), on the other hand, the Court dismissed as moot an appeal by the Commonwealth from a writ prohibiting enforcement of a grand jury subpoena. The subpoena had become a dead letter because the issuing grand jury had been excused and the case had been resolved by guilty-plea. Refusing to apply the " capable of repetition" exception, the Court explained that neither of the exception's elements was met. A special grand jury of indefinite duration could be impaneled, so as to insure that the matter could be fully litigated in a subsequent case. Moreover, the matter was not likely to confront the same complaining party again because the grand jury that had issued the subpoena had already been dismissed.
In this case, the GAL maintains that Morgan's claim does not come within the " capable of repetition" exception. We agree. Like the Commonwealth's claim in Hughes, Morgan's claim does not satisfy that exception's first element, i.e., although her case expired before it could be fully litigated, there is every reason to expect that other cases raising the same questions about the proper role of a GAL will commence when the affected child is young enough to allow for the matter to be fully
litigated. Morgan's claim does not satisfy the exception's second element, either, because, although not impossible (through remarriage and/or adoption), it is not reasonably likely that Morgan will again find herself on the wrong side of a GAL-recommended child-custody ruling. Morgan's claim, unlikely to recur with respect to her and not evading review with respect to others, is thus not a viable candidate for the " capable of repetition" exception. The proper course for this Court in those circumstances is dismissal unless some other exception to the mootness rule applies. That brings us to the " public interest" exception.
As noted above, although our predecessor Court referred to " a question of substantial public interest" exception for moot cases, Commonwealth ex rel. Luckett v. Helm, 464 S.W.2d 260 (Ky. 1971); Brown, 191 S.W.2d at 235, we have never discussed the contours of such an exception, and the cases in which it has been applied (aside from Brown ) have loosely employed the more common " capable of repetition" formula. Notwithstanding that formulation, we have on several occasions reviewed moot cases that did not satisfy the two elements of the orthodox " capable of repetition" exception, and thus, implicitly at least, have recognized a distinct " public interest" exception.
In Woods v. Commonwealth, 142 S.W.3d 24 (Ky. 2004), for example, we reviewed a guardian ad litem's appeal, on behalf of his ward, from rulings authorizing the removal of life support from the ward, who had been left in a state of permanent unconsciousness following a heart attack. The ward died from natural causes during the course of the appeal, thus mooting the case, but the Court of Appeals, invoking the " capable of repetition" exception, deemed the case reviewable. We gave tacit approval to that ruling by providing our own review. Clearly, there was no chance that the ward himself would again be confronted by the challenged action (the removal of life support), and neither did the issue evade review, inasmuch as other patients on life support could be expected to survive until the matter was fully litigated. The case was reviewed, therefore, not in any strict sense under the standard " capable of repetition" exception, but rather because it raised issues of substantial public importance certain to be repeated with respect to other patients, their families, and their caregivers, and because guidance from the Court could properly be thought a matter of some urgency.
Similarly, if less dramatically, in Rodney P. v. Stacy B., 169 S.W.3d 834 (Ky. 2005) the Court invoked the " capable of repetition" exception to address a non-custodial parent's appeal from an order increasing his child-support obligation. Like this case, that case had been mooted by the child's turning eighteen years old, and also
as in this case there was little chance that the appellant would himself face again the circumstances about which he complained. Nevertheless, review was deemed appropriate because the question raised was an important one of first impression and because it could similarly evade review when confronted by others whose children were nearing their majority.
In Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001), one of the parties to a divorce action moved for an award of prospective attorney's fees so that she might retain counsel to represent her during the custody phase of the proceedings. The trial court denied the motion, and that ruling was one of several challenged on appeal. By the time it reached this Court the issue had been rendered moot: the woman had represented herself during the custody proceedings and so had not incurred attorney's fees, and the woman's only child had turned eighteen and so, as in this case, custody and support issues could not be re-litigated. Despite the fact that there was very little chance that the appellant would again have a need for custody-proceeding representation, the Court reviewed the moot issue because " whether a trial judge may order a party to a divorce proceeding to advance prospective attorney's fees to the other party is an issue 'capable of repetition, yet evading review.'" Neidlinger, 52 S.W.3d at 520.
As these cases illustrate, we have employed the phrase " capable of repetition, yet evading review" ambiguously, referring sometimes to the two-element mootness exception applied in Meigs and in Hughes, and sometimes to a mootness exception deemed applicable not because the issue was capable of being repeated with respect to the current appellant, but rather because the issue was thought to be an important one apt to arise and to evade review in other cases. This latter mootness exception -- an exception for questions of substantial public interest -- was outlined in Brown, 191 S.W.2d at 235, and is recognized in many of our sister states. See, e.g., Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT 75, 289 P.3d 582 (Utah 2012); Putnam Cnty., 301 S.W.3d at 196; In re Alfred H.H., 910 N.E.2d at 74; Doe v. Doe, 116 Haw. 323, 172 P.3d 1067 (Haw. 2007); Richie v. Bd. of Educ. of the Lead Hill Sch. Dist., 326 Ark. 587, 933 S.W.2d 375 (Ark. 1996); Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191 (Alaska 1995); Israel v. W. Virginia Secondary Sch. Activity Comm'n, 182 W.Va. 454, 388 S.E.2d 480 (W.Va. 1989); In the Matter of McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (Wash. 1984); In re William M, 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737 (Cal. 1970).
Unlike the two-element " capable of repetition" exception, the " public interest" exception commonly has three elements, all of which must ...