Julie Pate v. Harry Sadlock ( 2018 )


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  •                            THIRD DIVISION
    ELLINGTON, P. J.,
    BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS
    NOTICE: Motions for reconsideration must be
    physically received in our clerk’s office within ten
    days of the date of decision to be deemed timely filed.
    http://www.gaappeals.us/rules
    May 3, 2018
    In the Court of Appeals of Georgia
    A18A0395. PATE v. BRIAN SADLOCK.
    A18A0396. PATE v. BRIAN SADLOCK.
    A18A0397. PATE v. HAROLD SADLOCK et al.
    PHIPPS, Senior Appellate Judge.
    Following a joint hearing in three cases concerning visitation and custody of
    the children of Julie Pate and Brian Sadlock, the trial court issued a combined
    interlocutory order regarding, among other things, grandparent visitation rights for
    the summer of 2017, reunification therapy for the father, and therapists for the
    children. The mother appeals from the combined order and raises five enumerations
    of error. For the reasons that follow, we affirm.
    The three records show that in North Carolina in January 2013, Pate and
    Sadlock entered into a consent order regarding child custody and support of their two
    children, who were born in August 2009 and July 2011, respectively; the parties also
    agreed to certain visitation rights for the paternal grandparents, who had intervened
    in the matter. Among other things, the consent order gave joint legal custody to the
    parents, primary physical custody to the mother, certain visitation rights to the father,
    and one week of visitation for the paternal grandparents each summer beginning in
    2013. In May 2016, after both parents had moved to Georgia, the parents
    domesticated the North Carolina consent order in the Superior Court of Fulton
    County.
    In July 2016, the mother filed a petition in Fulton County against the
    grandparents, who live in New Hampshire, for modification of their summer
    visitation week, based in part on the father’s then-recent arrest on charges of
    aggravated sexual battery on one of the children, as well as other allegations of
    inappropriate behavior by the father with regard to the children. The mother asked
    that the grandparents’ visitation rights “be revisited, reviewed and modified on a
    temporary and permanent basis” and that their “visitation for summer 2016 be
    suspended pending further investigation of [the court].” The mother requested an
    expedited hearing on the matter. The grandparents answered and filed a counterclaim,
    later amended, for contempt of their visitation rights in 2016, for an order denying
    2
    any modification of their rights, for an alternative period to make up for the missed
    week of visitation in the summer of 2016, for additional regular visitation with the
    children while the father was unable to do so due to bond conditions in his criminal
    matter, and for other relief. In December 2016, following a hearing, the court entered
    a temporary order awarding two visitation days to the grandparents during that month,
    as well as supervised grandparent visitation with the children through reunification
    therapy on “an ongoing temporary basis.”
    Meanwhile in September 2016, the mother filed a second petition, this time
    against the father, seeking to modify the father’s visitation rights on a temporary and
    permanent basis due to the pending criminal charges and other allegations referred
    to above. The mother requested a temporary and final hearing on the petition. The
    father answered.
    Finally, in March 2017, the father filed a petition for modification of custody
    or, in the alternative, a modification of his rights to visitation. The father alleged a
    material change in circumstances, namely that the mother had sought, through a series
    of actions, to eliminate the father from the children’s lives “by creating the impression
    that Father is dangerous, limiting Father’s contact with the children, limiting the
    children’s contact and associations with Father’s family, and encouraging the children
    3
    to refer to [the mother’s] new husband as ‘Daddy.’” The petition included allegations
    that the mother actively coached the children to make false statements regarding the
    father and that she falsely accused the father of sexual abuse of the children. The
    father asked the court to order the parties and children to undergo a psychological
    custody evaluation; that the court modify the custody consistent with the children’s
    best interests; and that the father have primary physical custody or, in the alternative,
    that the court modify visitation consistent with the best interests of the children.
    In April 2017, the court issued a combined order in all three cases requiring a
    “custody evaluation and psychological evaluation” of the mother, father, and
    grandparents to be performed by Dr. Kim Oppenheimer. In a second combined order,
    the court addressed the mother’s motion to reconsider certain aspects of the December
    2016 temporary order, the mother’s request for a temporary protective order based on
    the allegations of the father’s sexual abuse, and other matters. The court also
    appointed Dr. Allison Hill as a reunification specialist and ordered that she begin an
    evaluation of when and under what circumstances the father should be reunified with
    his children. The court stated that upon receipt of Dr. Hill’s report, the court would
    conduct a hearing regarding Dr. Hill’s recommendations.
    4
    Later in April 2017, the grandparents moved for a hearing to address “their
    summer visitation [for 2017],” including their request to make up for the denied
    visitation in 2016 by awarding four to six weeks of visitation in the summer of 2017.
    The grandparents requested, among other things, a “temporary hearing . . . on May
    23, 2017, addressing grandparent’s 2017 summer visitation.” The court set a hearing
    for that day “on the issues of (1) summer visitation and (2) reunification progress and
    recommendations.” The court added, “This hearing shall last a maximum of three
    hours.”
    Prior to the scheduled hearing, the mother moved in limine to bar introduction
    at the hearing of hearsay regarding any reports, summaries, or oral information “not
    presented to the Court at a formal hearing.” Two weeks before the May 23 hearing,
    the court-appointed guardian ad litem (GAL) moved in all three cases for
    modification of the court’s December 2016 temporary order and for other clarification
    and direction regarding certain matters concerning the children. The GAL alleged that
    this GAL is concerned that the children and the possibility of their
    reunification with the Grandparents is being thwarted by the Mother’s
    failure to follow the recommendations of the reunification therapist and
    her inability to follow through with the plans created with the assistance
    of the reunification therapist and this GAL.
    5
    The GAL was also concerned that the children were not under the care of a child
    psychologist. The court added the GAL’s motion to the matters to be considered on
    May 23. Prior to that hearing, the mother issued a subpoena to Dr. Hill demanding
    that she produce for the hearing essentially all documents in her possession related
    to the matters raised by the parties. The mother also issued a similar subpoena to the
    GAL. The GAL moved to quash; Dr. Hill did not.
    Following the May 23, 2017, hearing, the trial court issued a temporary order
    applicable to all three cases in which it (1) granted the GAL’s motion to quash; (2)
    declined to enforce the subpoena issued to Dr. Hill; (3) denied the mother’s motion
    in limine; (4) overruled the mother’s objection to the length of the hearing; (5) held
    that the grandparents were authorized to request a modification to their visitation; (6)
    granted the grandparents four weeks of visitation time during the summer of 2017,
    with the first two weeks to include reunification therapy with Dr. Hill; (7) ordered
    reunification therapy for the father; (8) ordered coordination between a therapist for
    the children and Drs. Hill and Oppenhiemer “to ensure therapeutic consistency for the
    children”; and (9) scheduled a follow-up status hearing on July 31, 2017, at which the
    court would consider ongoing observations and recommendations by Dr. Hill, Dr.
    Oppenheimer, and the GAL “when considering the progress of the case and whether
    6
    further modifications of the temporary order are appropriate.” The mother appeals
    from this order in the combined cases.
    1. In two enumerations of error, the mother contends that the trial court erred
    by modifying the grandparents’ visitation for the summer of 2017 in contravention
    of OCGA § 19-7-3.
    (a) The grandparents respond that this enumeration of error is moot because the
    summer 2017 visitation has occurred. See OCGA § 5-6-48 (b) (“Where the questions
    presented have become moot” the appeal “shall be dismissed.”). We agree that the
    issue of the grandparents’ visitation for 2017 is moot. Nevertheless, we address two
    claims of error related to the visitation ordered that could be repeated by the trial
    court yet evade review because of the timing of the appeal process. See White v.
    Raines, 
    331 Ga. App. 853
    , 854 n. 1 (771 SE2d 507) (2015); Elgin v. Swann, 
    315 Ga. App. 809
    , 810 (1) (728 SE2d 328) (2012).
    (b) The mother argues that the grandparents were not authorized to seek, and
    the trial court was not authorized to grant, a change of the grandparent visitation
    provided in the original consent order. The mother further argues that even if the trial
    court was so authorized, the court failed to apply the correct standard in deciding
    7
    whether to modify the grandparents’ visitation. These issues turn on the meaning of
    OCGA § 19-7-3, as well as § 19-9-3, upon which the trial court relied in part.
    (i) Georgia’s “Grandparent Visitation Statute,” OCGA § 19-7-3, grants any
    grandparent the right to seek visitation of a minor grandchild in two ways: (1) by
    filing an original action for visitation rights; or (2) by intervening in an existing
    action concerning custody, divorce of the parents or a parent, termination of parental
    rights or visitation rights, or in certain cases involving adoption. OCGA § 19-7-3 (b)
    (1); see also Kunz v. Bailey, 
    290 Ga. 361
    , 362 (720 SE2d 634) (2012). Grandparents
    may file an “original action” requesting such visitation rights only once during any
    two-year period and not “during any year in which another custody action has been
    filed concerning the child.” OCGA § 19-7-3 (c) (2). The statute provides no such
    limitation, however, on how often a grandparent may intervene in an existing
    qualifying action. Nor does it limit a grandparents’ ability to counterclaim for a
    modification of visitation in response to an action by a parent in which the parent
    requested that the grandparents’ visitation rights “be revisited, reviewed and modified
    on a temporary and permanent basis” and that their “visitation for summer 2016 be
    suspended pending further investigation of [the court].” Accordingly, we find no error
    by the trial court in determining that under the circumstances, the grandparents had
    8
    the authority to seek, and the court had the authority to grant, a temporary
    modification of the grandparents’ visitation rights. We therefore need not reach the
    question whether OCGA § 19-9-3 (which provides guidelines for custody
    considerations between parents, see generally Stone v. Stone, 
    297 Ga. 451
     (774 SE2d
    681) (2015)) provides authority to the trial court to make a temporary modification
    of the grandparents’ visitation rights, as the trial court held, nor whether the ruling in
    Van Leuvan v. Carlisle, 
    322 Ga. App. 576
    , 583 (3) (745 SE2d 814) (2013) (physical
    precedent only), regarding a trial court’s authority to make a temporary ruling on
    grandparent visitation under OCGA § 19-9-3, is persuasive.
    (ii) The Grandparent Visitation Statute further provides, among other things,
    that the court may grant reasonable visitation rights only “if the court finds by clear
    and convincing evidence that the health or welfare of the child would be harmed
    unless such visitation is granted and if the best interests of the child would be served
    by such visitation.” OCGA § 19-7-3 (c) (1). This standard of proof is of constitutional
    importance. See Brooks v. Parkerson, 
    265 Ga. 189
     (454 SE2d 769) (1995) (finding
    unconstitutional the prior version of the statute that allowed the court to “grant any
    grandparent of the child reasonable visitation rights upon proof of special
    circumstances which make such visitation rights necessary to the best interests of the
    9
    child.”). Our Supreme Court held that “state interference with parental rights to
    custody and control of children is permissible only where the health or welfare of a
    child is threatened.” 
    Id. at 193
     (2) (b). “[E]ven assuming grandparent visitation
    promotes the health and welfare of the child, the state may only impose that visitation
    over the parents’ objections on a showing that failing to do so would be harmful to
    the child.” 
    Id. at 194
     (2) (c).1 “As a result [of Brooks v. Parkerson], the Georgia
    General Assembly amended the Grandparent Visitation Statute to require a finding
    of harm to the health or welfare of the child before visitation is granted.” Clark v.
    Wade, 
    273 Ga. 587
    , 595 (III) (544 SE2d 99) (2001); see also Ormond v. Ormond, 
    274 Ga. App. 869
    , 871 (619 SE2d 370) (2005) (“Because there was no showing that
    failure to grant visitation to the grandparents would be harmful to the children, the
    1
    We find nothing in OCGA § 19-9-3 that would allow a trial court to order
    grandparent visitation based on a different standard. We also reject the grandparents’
    argument that a modification of existing grandparent visitation time does not require
    satisfaction of the above standard. Such a procedure would amount to an end run on
    the constitutional importance underlying the standard imposed in OCGA § 19-7-3 (c)
    (1).
    10
    visitation order must be reversed.”).2 And the court is required to make “specific
    written findings of fact in support if its rulings.” OCGA § 19-7-3 (c) (1).
    Here, the trial court significantly increased the grandparents’ visitation rights
    for the summer of 2017 without applying the required standard. Although the issue
    of summer visitation for 2017 is moot, the correct standard should be applied to any
    future authorized proceedings where the grandparents seek to modify visitation.
    2. The mother contends that the trial court committed reversible error when
    conducting the temporary hearing by limiting the presentation of evidence, over the
    mother’s objection, by not allowing the parties to testify. “[T]he order of presentation
    of evidence is a matter that rests within the trial court’s discretion and will not be
    controlled in the absence of an abuse thereof.” Farley v. State, 
    145 Ga. App. 98
    , 102
    (2) (243 SE2d 322) (1978).
    On May 9, 2017, when the trial court set the May 23, 2017 hearing, it indicated
    that the hearing would “last a maximum of three hours.” The mother did not object
    2
    Compare Vincent v. Vincent, 
    333 Ga. App. 902
    , 903 (1) (777 SE2d 729)
    (2015) (OCGA § 19-7-3 (d) “sets out a different standard when the parent of the
    minor child with whom visitation is sought is incapacitated, incarcerated or deceased,
    and the grandparent seeking visitation is the parent of such incarcerated, incapacitated
    or deceased parent”). Here, the grandparents did not allege that their son was
    incarcerated and there is no indication that the court relied on OCGA § 19-7-3 (d).
    11
    to the limitation in the two weeks leading up to the hearing or request a continuance.
    At the beginning of the May 23 hearing, however, the mother objected to the three-
    hour limitation for the hearing as not being sufficient for “an evidentiary hearing of
    this magnitude and of the decisions that are being sought to be made today.” The
    court did not rule on the objection, and the mother did not make any proffer of what
    evidence she intended to put forward. The court then called two witnesses, Dr. Hill
    and the GAL, whom the parties cross examined, and the court later accepted the
    deposition of another witness, at the request of the mother. Although the mother now
    asserts that the court failed to provide an opportunity for the parties to testify, the
    mother never asked the court to allow them to testify or otherwise indicate that she
    desired to call the parties as witnesses. She also did not object, obtain a ruling, or
    proffer any such testimony. “To establish reversible error, a party seeking review of
    a trial court’s ruling excluding testimony must show how the testimony would have
    benefitted her case.” Landry v. Walsh, 
    342 Ga. App. 283
    , 285 (1) (801 SE2d 553)
    (2017); see also Fredericks v. Hall, 
    275 Ga. App. 412
    , 414 (3) (620 SE2d 638) (2005)
    (“It is the duty of counsel to obtain a ruling on his motions . . . , and the failure to do
    so will ordinarily result in a waiver.”) (citation and punctuation omitted).
    Accordingly, the mother can show no abuse of discretion.
    12
    3. The mother contends the trial court erred by delegating determination of the
    father’s visitation privileges to a third party. In the temporary order on appeal, the
    trial court accepted Dr. Hill’s recommendation that reunification therapy with the
    father was appropriate. The trial court therefore ordered that the children undergo
    reunification therapy with the father under Dr. Hill’s direct supervision and that the
    mother comply with Dr. Hill’s recommendations:
    Thus, the Court directs that Brian Sadlock be introduced to the children
    in a therapeutically appropriate manner. At this time, Brian Sadlock’s
    interaction with his children shall be limited to Dr. Hill’s office under
    her direct supervision. Julie Pate is directed to facilitate and comply with
    the reunification recommendations regarding Brian Sadlock while the
    children are in her custody.
    The mother argues that the order is flawed because it fails to designate specific days,
    times or frequency for the children’s reunification with the father and leaves that
    decision in the hands of Dr. Hill. To the extent that the issue is not moot, we conclude
    the trial court did not err.
    It is true that “any self-executing change of custody provision that fails to give
    paramount import to the child’s best interests in a change of custody as between
    parents must be stricken as violative of Georgia public policy.” Dellinger v.
    13
    Dellinger, 
    278 Ga. 732
    , 733 (1) (609 SE2d 331) (2004). Changes in visitation
    privileges fall within this rule. Hardin v. Hardin, 
    338 Ga. App. 541
    , 543 (1) (790
    SE2d 546) (2016). As the Supreme Court has explained, a trial court must not
    delegate decisions regarding modification of custody or visitation:
    It is the trial court’s responsibility to determine whether the evidence is
    such that a modification or suspension of custody/visitation privileges
    is warranted, and the responsibility for making that decision cannot be
    delegated to another, no matter the degree of the delegatee’s expertise
    or familiarity with the case.
    Wrightson v. Wrightson, 
    266 Ga. 493
    , 496 (3) (467 SE2d 578) (1996). Thus, “[w]hile
    the expert’s opinion may serve as evidence supporting the trial court’s decision to
    modify or suspend visitation, the decision must be made by the trial court, not the
    expert.” Wrightson, 
    266 Ga. at 496
     (3). Not all self-executing provisions are invalid,
    however, and “we must closely examine the nature of any such provision in
    determining whether it fails to give paramount import to the child’s best interests.”
    Hardin, 338 Ga. App. at 543 (1) (citation and punctuation omitted).
    Here, the trial court ordered reunification therapy for the purpose of the father’s
    reintroduction to the children and required that the therapy occur only in Dr. Hill’s
    office under her direct supervision. Nothing in the order indicates that Dr. Hill was
    14
    instructed to decide whether to modify visitation privileges or that such a
    modification would occur in a self-executing manner following the reunification
    therapy. In fact, the court set a follow-up hearing seven weeks later on the matters
    addressed in the order and stated that it would be considering Dr. Hill’s observations
    and recommendations “when considering the progress of the case and whether further
    modifications of the temporary order are appropriate.” Thus, although aided by Dr.
    Hill’s recommendations, the court retained control of the decision as to whether the
    father’s visitation should be modified following reunification therapy. Hardin is
    distinguishable. In that case, the trial court’s order provided that a transition in
    custody would automatically follow the completion of therapy without a review by
    the court regarding the effectiveness of the therapy. Hardin, 338 Ga. App. at 545 (1).
    We therefore find no error. See also Williams v. Williams, 
    301 Ga. 218
    , 221 (1) (800
    SE2d 282) (2017) (where trial court had “required that [the mother’s] visitation would
    occur twice per month at a particular location, a local church, with the days and times
    for those visits to be arranged by the church, in cooperation with Husband and Wife,”
    the court had not left visitation solely to the discretion of a third party).
    4. The mother also contends the trial court erred by declining to enforce her
    subpoena for records from Dr. Hill. One week prior to the May 23, 2017 hearing, the
    15
    mother issued to Dr. Hill a subpoena to produce documents at the hearing. During the
    hearing, the mother requested a ruling on whether Dr. Hill had to produce the
    requested documents. The court responded that it was “denying the request for her
    records at this point.” The mother responded, “You’re granting a motion to quash that
    hasn’t been filed?” The court basically repeated that it was denying the request, and
    the mother objected. The mother contends the trial court erred, but the mother has not
    perfected this claim of error by showing any possible harm. She did not make a
    proffer below of the significance of the information or otherwise show any possible
    harm arising from the trial court’s ruling. Accordingly, there is nothing for this Court
    to review. Gardiner v. State, 
    264 Ga. 329
    , 334 (9) (444 SE2d 300) (1994); Boone v.
    State, 
    250 Ga. App. 133
    , 140 (12) (549 SE2d 713) (2001).
    Judgment affirmed. Ellington, P. J., and Bethel, J., concur.
    16
    

Document Info

Docket Number: A18A0395; A18A0396; A18A0397

Judges: Phipps

Filed Date: 5/3/2018

Precedential Status: Precedential

Modified Date: 10/6/2023