Freitas v. Abernethy

Opinion

KING, J. In this case we hold that the conflict of interest standard enunciated in Penal Code section 1424 applies to a motion to disqualify a district attorney from performing any authorized duty, including participation in civil proceedings for the modification of child support orders.

The County of Napa (County) apeals from an order disqualifying its entire district attorney’s office from representing Cyndi Abernethy (Freitas) in a review of a stipulated child support order, contending the trial court erred by rejecting the conflict of interest standard enunciated in Penal Code section 1424.

Cyndi and James Patrick Abernethy were married on November 25, 1974, and had one child, James Douglas, born May 17, 1976. A petition for [1196]dissolution of the marriage and child support was filed and a default judgment entered against James on April 20, 1983.

On December 3, 1990, the Napa County District Attorney’s Office, Family Support Division, filed an order to show cause re modification.1 The parties agreed to a stipulation, which the court approved and entered as its judgment and order on January 18, 1991. The court calendared the matter for July 15, 1991, for further review of the amount of child support and disposition of the dependency tax exemption.

Lee B. Philipson, who represented James on the stipulation, withdrew as his attorney of record by formal notice filed January 24, 1991. Prior to the July 15, 1991, review, Philipson accepted a position in the criminal division of the district attorney’s office.2 James’s new attorney applied for an order disqualifying the Napa County District Attorney, Family Support Division, from representing Cyndi. In an attached declaration, James stated he had not given his written consent to the district attorney’s involvement inimical to his interests. After hearing arguments from both parties, the trial court granted the recusal motion as to the entire district attorney’s office.

I

James contends this appeal is moot because after the trial court filed its recusal order, the child began living with him. It is well settled that an appellate court will decide only actual controversies. Accordingly, an action originally based upon a justiciable controversy cannot be maintained on appeal if questions raised therein have become moot by subsequent events. (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 [244 Cal.Rptr. 581].) However, nothing in the record reflects the changes asserted by James. Bare assertions do not provide a basis for us to order dismissal of an appeal. (See George v. Burdusis (1942) 21 Cal.2d 153, 163 [130 P.2d 399].)