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
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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
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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.
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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.
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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
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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
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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
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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
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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).
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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).
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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.
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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.
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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
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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
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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.
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