Jodi Leach v. Connie Sagen Warner ( 2021 )

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 11, 2021
In the Court of Appeals of Georgia
A21A0774. LEACH v. WARNER.
PHIPPS, Senior Appellate Judge.
Jodi Leach, the mother of minor child P. B., appeals from an order awarding
Connie Sagen Warner, the child’s paternal grandmother, visitation with the child.
Leach asserts that the evidence was insufficient to support the visitation award and
that a portion of the grandparent visitation statute, OCGA § 19-7-3 (c), is
unconstitutional. We find no error and affirm.
When considering an appeal from an order granting grandparent visitation, this
Court must “view the evidence in the light most favorable to the trial court’s
judgment to determine whether any rational trier of fact could have found by clear
and convincing evidence that the mandated visitation was authorized.” Elmore v.
Clay, 348 Ga. App. 625, 625 (824 SE2d 84) (2019) (citation and punctuation
omitted). In conducting our review, “[w]e do not weigh the evidence or determine
witness credibility, but defer to the trial court’s factfinding and affirm unless the
evidence fails to satisfy the appellate standard of review.” Id. (citation and
punctuation omitted).
So viewed, the record shows that P. B. was born in 2010 to Leach and Joseph
Berry, the father of the child and a respondent in the underlying action.1 Warner is
Berry’s mother and the paternal grandmother of P. B. The child was born in San
Diego, and Warner flew to see her and spend time with her approximately a week
after she was born. Warner spent “many, many, many months in San Diego taking
care of [P. B.].” She also paid to fly P. B. and Leach to her house when P. B. was very
young and Berry, who is in the Marine Corps, was training. According to Warner,
Leach and Berry began divorce proceedings when P. B. was ten months old, and the
divorce was finalized when she was about eighteen months old. Berry received
primary custody of P. B. at that time, and Warner flew back and forth to San Diego,
spending approximately two-and-a-half weeks every month taking care of P. B.
Warner “was like a mother [to P. B.] at that point[,]” and Warner’s husband worked
overtime to support two both Warner’s and Berry’s households. This arrangement
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Berry did not file a responsive pleading.
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continued until October 2014, when Berry gave primary custody of P. B. to Leach
because he had received orders from the Marine Corps to move to Florida, but he
could not legally remove P. B. from California.
Leach ultimately moved to Georgia in February 2015, and at that point, Warner
only saw P. B. for two to three weeks each summer during Berry’s visitation period.
Warner and her husband paid for a vacation trip with P. B. and Berry every summer
until the summer of 2017, when Berry cut ties with Warner because they had a fight.
The fight centered around Warner’s husband’s behavior with P. B.; he wanted to
wrestle with P. B., made numerous efforts to be alone with P. B., and hid in the lazy
river at Disney World with P. B.
Unable to gain access to P. B. through her son, Warner reached out to Leach
in September 2017 and requested contact with P. B. Leach agreed and allowed
Warner to visit P. B. in Georgia in 2017 and allowed P. B. to visit Warner twice in
Colorado in 2018. Leach also allowed Warner to FaceTime and call P. B. According
to Warner, she FaceTimed with P. B. at least once per week, but Leach testified that
Warner only FaceTimed with P. B. “maybe ten times” from 2017 until Leach ceased
communications with Warner in 2019.
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In November 2018, Leach filed for and was awarded sole physical custody of
P. B.; Berry missed the court date due to his training and deployment. Warner
supported Leach’s claim for custody. In the summer of 2019, Berry returned from
deployment and told Leach that he did not want Warner to have contact with P. B. As
a result, Leach terminated P. B.’s contact with Warner. Leach testified that even
before she cut off Warner’s contact with P. B., she had some concerns with visitation
between P. B. and Warner because she had learned that P. B. slept in the bed with
Warner and her husband when she visited.
Warner filed a petition for grandparent visitation rights in March 2020, seeking
reasonable visitation pursuant to OCGA § 19-7-3. Following a bench trial, the trial
court granted Warner’s petition, specifically finding that Warner had an established
pattern of regular visitation with P. B., the welfare of P. B. would be harmed unless
visitation was granted, and it was in the best interest of P. B. to have contact and
visitation with Warner. Warner was granted a weekly FaceTime or phone call with
P. B. at a reasonable time for no more than thirty minutes, a monthly in-person 24-
hour visit, and one three-day in-person visit each summer. Leach appeals this order.
1. Leach first asserts that the evidence was insufficient to support the trial
court’s visitation award to Warner under OCGA § 19-7-3. We disagree.
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OCGA § 19-7-3, the Grandparent Visitation Statute, “was enacted to provide
a mechanism for courts to grant a grandparent visitation rights with his or her minor
grandchild, where, as here, a child’s parent objects.” Luke v. Luke, 280 Ga. App. 607,
611 (3) (634 SE2d 439) (2006). The statute “codifies a standard for the trial courts
to utilize in balancing the interests of the child, the rights of the parents, and the
wishes of an alienated grandparent.” Id. Under OCGA § 19-7-3 (c) (1), a court may
grant a family member reasonable visitation rights “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.” The statute further provides:
In considering whether the health or welfare of the child would be
harmed without such visitation, the court shall consider and may find
that harm to the child is reasonably likely to result when, prior to the
original action or intervention:
(A) The minor child resided with the family member for six
months or more;
(B) The family member provided financial support for the
basic needs of the child for at least one year;
(C) There was an established pattern of regular visitation
or child care by the family member with the child; or
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(D) Any other circumstance exists indicating that
emotional or physical harm would be reasonably likely to
result if such visitation is not granted.
OCGA § 19-7-3 (c) (1).
“Where a petitioning grandparent meets this standard, a trial court may grant
visitation — notwithstanding evidence or circumstances that weigh against a grant
of visitation.” Luke, 280 Ga. App. at 611 (3). In fact, according to OCGA § 19-7-3
(c) (3),
[w]hile a parent’s decision regarding family member visitation shall be
given deference by the court, the parent’s decision shall not be
conclusive when failure to provide family member contact would result
in emotional harm to the child. A court may presume that a child who is
denied any contact with his or her family member or who is not provided
some minimal opportunity for contact with his or her family member
when there is a preexisting relationship between the child and such
family member may suffer emotional injury that is harmful to such
child’s health. Such presumption shall be a rebuttable presumption.
Leach argues that Warner failed to present clear and convincing evidence
establishing a pattern of regular visitation, as required to support a grant of visitation
rights under OCGA § 19-7-3 (c) (1) (C). According to Leach, she had no contact with
Warner from the time Leach received full physical custody of P. B. in 2014 until late
2017. However, the record belies this assertion, showing instead that during this time,
Warner continued visitation and contact with P. B. when Berry had visitation during
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the summer. Although Berry only had visitation with P. B. in the summer during this
time frame, Warner took full advantage of the opportunity for contact with P. B. and
spent two to three weeks with her each summer. In addition, after Berry denied
Warner contact with P. B. in 2017, Warner reached out to Leach and began FaceTime
and in-person contact with P. B. through Leach until Leach ended Warner’s contact
with P. B. in the summer of 2019. Contrary to Leach’s argument, the record
establishes clear and convincing evidence of a historical pattern of regular visitation
by Warner. See OCGA § 19-7-3 (c) (1) (C).
Leach also argues that Warner failed to provide financial assistance for P. B.’s
basic needs or child care after Leach received full-time physical custody of P. B. Even
if this were true, a trial court is not required to find both a pattern of regular visitation
and financial assistance or a pattern of regular visitation and child care to award
grandparent visitation under OCGA § 19-7-3 (c) (1) because subsections (A) through
(D) of the statute and the actions contained in subsection (C) of the statute are written
in the disjunctive. “The natural meaning of ‘or,’ where used as a connective, is to
mark an alternative and present choice, implying an election to do one of two things.”
Haugen v. Henry County, 277 Ga. 743, 744-745 (2) (594 SE2d 324) (2004) (citation
and punctuation omitted). And, “where a legislative provision is phrased in the
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disjunctive, it must be so construed absent a clear indication that a disjunctive
construction is contrary to the legislative intent.” Gearinger v. Lee, 266 Ga. 167, 169
(2) (465 SE2d 440) (1996).
Last of all, Leach maintains that she “decided in her capacity as a parent that
further visitation of her child by Appellee Warner was not in the best interest of her
child[,]” and the trial court’s grant of visitation rights to Warner infringes on Leach’s
right to direct the upbringing of her child and the presumption that a fit parents acts
in the best interests of her child. This Court, however, already has addressed and
rejected this contention. It is well established that “Georgia law expressly provides
that while a parent’s decision [regarding family-member visitation] shall be given
deference by the court, the parent’s decision shall not be conclusive when failure to
provide grandparent contact would result in emotional harm to the child.” Keith v.
Callahan, 332 Ga. App. 291, 292-293 (1) (772 SE2d 386) (2015) (citation and
punctuation omitted; emphasis in original). See also OCGA § 19-7-3 (c) (3). In fact,
as already stated, OCGA § 19-7-3 “was enacted to provide a mechanism for courts
to grant a grandparent visitation rights with his or her minor grandchild, where, as
here, a child’s parent objects.” Luke, 280 Ga. App. at 611 (3); accord Keith, 332 Ga.
App. at 293 (1). Here, the trial court expressly found that not only would P. B.’s
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welfare be harmed unless visitation with Warner was granted, but also that P. B. “may
suffer emotional injury that is harmful to [her] health” if she was denied contact with
Warner.
We reject Leach’s contention that the trial court gave no deference to her
concerns regarding Warner’s husband’s actions in crafting the visitation schedule.
Indeed, the trial court’s order specifically states that Warner “shall supervise the child
during the visits and shall not leave the child alone and unattended with her
husband[.]”
Viewing the evidence in the light most favorable to the trial court’s judgment
and with deference to the trial court’s factfinding, we conclude that a rational
factfinder could have found that mandatory visitation with Warner was authorized
under OCGA § 19-7-3 (c). See Elmore, 348 Ga. App. at 625.
2. Leach spends the bulk of her appellate brief arguing that OCGA § 19-7-3 (c)
is unconstitutional on its face. However, Leach did not raise this constitutional claim
below, nor did the trial court rule on the constitutional issue. Accordingly, Leach’s
constitutional challenge is not properly before this Court. See Clark v. State, 236 Ga.
App. 153, 155 (2) (510 SE2d 907) (1999) (“This Court will not consider issues and
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grounds for objection, even of constitutional magnitude, which were not raised and
determined in the trial court.”).
Leach attempts to circumvent this procedural defect by arguing that she raised
this constitutional claim in her response to Warner’s petition for grandparent
visitation rights. Specifically, Leach points to the following assertion from her
response as proof that she raised this claim below:
During prior visits by Petitioner, Respondent Leach states that the
Petitioner consistently showed a penchant for undermining
Respondent’s legitimate interest and constitutional right to raise her
child as she sees fit and in a way she, Respondent Leach, believes to be
in the best interest of the Child.
Contrary to Leach’s assertion, however, her response did not assert a constitutional
argument. In fact, nowhere in the response does Leach raise any issue with the
constitutionality of OCGA § 19-7-3 (c). See In re L. C., 273 Ga. 886, 889 (2) (548
SE2d 335) (2001) (constitutional challenge not properly raised when party does not
specify either the particular part or parts of the statute being challenged or how those
part or parts of the statute violated a constitutional provision). Neither did Leach raise
a constitutional argument during trial. Leach points to her trial attorney’s closing
argument, where he stated, “And I myself question the constitutional[ity] of Section
19-7-3 but that’s of my own opinion.” This passing statement made during closing
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argument is not sufficient to raise a constitutional claim. See In re L. C., 273 Ga. at
889 (2).
Moreover, the trial court did not address any constitutional claim, and this
Court will not consider the constitutionality of a statute “unless it clearly appears in
the record that the point was directly and properly made in the court below and
distinctly passed on by the trial judge.” Wilson v. State, 212 Ga. 157, 158 (1) (91
SE2d 16) (1956); accord Brewer v. State of Ga., 281 Ga. 283, 284 (2) (637 SE2d 677)
(2006) (“Appellant’s argument under the State Constitution was not raised and ruled
on below and thus we do not address it.”); Lucas v. Lucas, 273 Ga. 240, 242 (3) (539
SE2d 807) (2000) (“This Court will not rule on a challenge to the constitutionality of
a statute unless the issue has been raised and ruled on in the trial court.”).
Accordingly, Leach’s constitutional argument has not been preserved for appellate
review.
Judgment affirmed. Rickman, C. J., and McFadden, P. J., concur.
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