Grove v. Grove , 296 Ga. 435 ( 2015 )

In the Supreme Court of Georgia
Decided: January 20, 2015
S14F1887. GROVE v. GROVE.
BENHAM, Justice.
Appellant is the Wife in this divorce case. At the final hearing in the case,
the parties, through counsel, indicated they had reached an agreement to all
terms of the divorce, property settlement, and child custody issues, and that the
only matter the parties were submitting to the court for final resolution was the
issue of appellee Husband’s visitation with respect to the two-year old child of
the marriage. The parties agreed that Wife would have primary physical custody
of the child, and the failure to arrive at an agreement about visitation arose from
the fact that Husband had substance abuse problems and was, at that time, living
in a residential rehabilitation facility for treatment. Further, the record reflects
Wife had concerns about Husband’s ability to ensure the child’s safety during
his visits with her. Counsel for Wife stated that he understood the paternal
grandparents would like visitation with the child, and informed the trial judge
that Wife had several concerns.
First, Wife was concerned about whether the grandparents would be able
to prevent improper conduct by Husband while the child was visiting the
grandparents. Second, Wife had been permitting the paternal grandparents to
visit the child but complained that she needed greater advance notice of their
visits than they were currently providing her. Third, Wife expressed concern
about the grandparents’ taking the child to visit Husband at his drug
rehabilitation facility. Finally, Wife wanted the unpaid child support to be paid
in full before either Husband or the paternal grandparents were permitted
visitation. All of the issues raised by Wife were addressed at the hearing,
including a stipulation that Husband’s visitation with the child must be
supervised by a third party. The judge then asked if the parties would be able
to draw up a parenting plan that addressed the issues resolved at the hearing, and
counsel for both parents answered affirmatively. A parenting plan that awarded
visitation rights to the paternal grandparents was signed by counsel to each
party, and it was attached to and became a part of the final judgment and decree
of divorce. The terms of the final judgment also contained an award of
visitation to the grandparents. Both the parenting plan and the final judgment
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provide that the paternal grandparents may exercise visitation with the child as
a substitute for the father. The signature of Wife’s counsel indicates he
approved the final judgment as to form. On appeal, Wife challenges the order’s
grant of visitation rights to the paternal grandparents.
1. OCGA § 19-7-3 (c) grants to grandparents of a minor child the right
to seek visitation rights “[u]pon the filing of an original action or upon
intervention in an existing proceeding” such as a divorce action where the
custody of the child is at issue. From the transcript of the hearing on the
visitation issue, it appears the parties had already agreed and stipulated that the
mother would have full custody. They further stipulated that all the father’s
visits would be supervised by a third party. Wife claims the court, sua sponte,
inserted into the final decree the provision that the grandparents could exercise
visitation with the minor child as a substitute for the father’s supervised
visitation schedule. Wife complains that this order permits the grandparents to
take Husband’s visitation turns even on major holidays such as Christmas and
Thanksgiving. Wife argues the trial court erred by granting these visitation
rights to the paternal grandparents even though they did not file a petition to
intervene in the divorce action.
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Wife waived this ground for appeal, however, by not raising the issue
below. See Francis v. Francis, 279 Ga. 248, 248-249 (611 SE2d 45) (2005).
The only objection to the grandparents’ visitation raised at the hearing at which
visitation was addressed was Wife’s request for timely advance notice by the
grandparents before scheduling a visit. This concern was resolved by discussion
at the hearing and reflected in the parenting plan adopted by the trial court,
which grants the grandparents the right to exercise visitation with the minor
child as a substitute for the Husband’s visitation schedule, and stipulates the
Husband is required to give no less than forty-eight hours’ advance notice of his
intent to exercise his visitation privileges. The hearing transcript reflects that
Wife and her counsel, as well as the paternal grandparents, were present at the
hearing, yet Wife made no objection to granting the grandparents visitation
rights on the ground that they had failed to intervene in the action, or any other
ground.
Pursuant to OCGA § 9-11-15 (b): “When issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.” Here, Wife
effectively acquiesced and consented to the grandparents’ participation in the
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proceeding as well as the court’s authority to make an award of visitation rights
to them even though they did not file a pleading to intervene in the action. See
Rude v. Rude, 241 Ga. 454 (1) (246 SE2d 311) (1978) (applying this rule of the
Civil Practice Act to hold, in a divorce proceeding, that the husband’s failure to
raise the objection that the wife’s pleadings did not include a specific prayer for
attorney fees, while permitting the court to litigate the matter, served as consent
to the court’s authority to make such an award).
2. OCGA § 19-7-3 (c) further provides that a grant of visitation rights to
any grandparent may be made “if the court finds the health or welfare of the
child would be harmed unless such visitation is granted, and if the best interest
of the child would be served by such visitation. The court shall make specific
written findings of fact in support of its rulings.” Wife asserts the final
judgment should be reversed for abuse of discretion because it grants visitation
rights to the paternal grandparents without making the required written findings
of fact. Wife contends the facts of this case are nearly indistinguishable from
those in Hunter v. Carter, 226 Ga. App. 251 (485 SE2d 827) (1997), in which
the Court of Appeals reversed the grant of grandparent visitation rights because
the evidence did not support the trial court’s finding that the minor child would
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be harmed if the grandparents were denied visitation rights. In fact, this case is
highly distinguishable from Hunter in that here, Wife, through her counsel,
approved the final judgment as to form and raised no objection to the trial
court’s failure to make findings of fact, whereas in Hunter, the child’s mother
and stepfather, who was attempting to adopt his wife’s child, opposed the
grandparents in the trial court proceeding and presented evidence that required
the reversal of the judgment granting visitation rights, along with its findings of
facts and conclusions of law. Id. at 252-253.
Again, Wife did not preserve this issue for appeal. “After approving the
form of the order, a party cannot complain of the court’s failure to include
findings of fact and conclusions of law.” Rude v. Rude, supra, 241 Ga. at 455.
See also Gant v. Gant, 254 Ga. 239, 240 (3) (327 SE2d 723) (1985); Hargett
v. Dickey, 304 Ga. App. 387 (2) (696 SE2d 335) (2010). Having approved the
order as to form, Wife is estopped from asserting on appeal that the form of the
order was deficient because it did not include findings of fact.
Judgment affirmed. All the Justices concur.
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