Guardianship of Thomas

California Court of Appeal May 11, 1954 No. Civ. 20284Published

Before: Moore

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Holding. The court dismissed the appeal as moot because a Texas court had subsequently granted permanent custody of the minors to the respondent, rendering any relief from the California court impossible.

Issues

Does the decision of a sister state court granting permanent custody of the minors render the pending appeal moot?
Should an appeal be dismissed when an event occurs that makes it impossible for the court to grant effectual relief?

Disposition. dismissed

Quotations verified verbatim against the opinion

“It is contrary to established judicial procedure to rule on questions that are moot.”

“If, when an appeal is pending, an event occurs which makes it impossible for this court to grant the appellant any effectual relief, the appeal should be dismissed.”

“There being no subject matter upon which this court can rule, the appeal must be dismissed.”

MOORE, P. J.

This is a motion to dismiss an appeal from an order denying the appellant custody of her two minor granddaughters.

In support of the motion to dismiss, respondent contends that the questions raised by the appeal are now moot in that the District Court of Harris County, Texas, has, since the order herein was made, granted permanent custody of the minors to respondent and at the time of such order, the minors resided and now reside in Texas.

The minor children, to wit, Sherry Ellen Thomas and Kathy Delene Thomas, had been placed in the custody of their mother upon the granting of a decree of divorce in the State of California, but on March 15, 1953, she was killed in an accident. Catherine E. Dudley, the maternal grandmother, commenced proceedings two days later to be appointed guardian of the children. Herman A. Thomas, respondent, is father of the children. He filed his objection to the grandmother’s petition for guardianship. The court awarded temporary custody to the grandmother until June 19, 1953; temporary custody to the father from June 19 to September 11, 1953. Temporary custody of the children then returned to the grandmother until September 14 when the court directed that they be delivered to the father, and by the same order appointed him guardian. The final order was signed November 2, 1953.

A stay' of execution of the order was denied by the court so that the father might take the children back to Texas with him. A notice of appeal herein was filed November 30, 1953. Thereafter, the Texas court awarded permanent custody to the father. The present motion to dismiss the appeal was filed April 12, 1954.

[137]

The first question before this court is, does the decision of the Texas court make the questions on appeal moot?

The law requires that a final judgment of a court of a sister state having jurisdiction be accorded the same effect as that of a final judgment of a California court. (Code Civ. Proc., §1915.) The finality of a foreign judgment is to be presumed until the contrary appears.

(164 East 72nd Street Corp.

Guardianship of Thomas

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MOORE, P. J.

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