318 Ga. 573 FINAL COPY
S24A0004. CRARY v. CLAUTICE et al.
COLVIN, Justice.
In this case, the trial court granted Appellant Allison Crary’s
petition to set aside and revoke a final consent order, which had
granted grandparent visitation rights under OCGA § 19-7-3 to
Appellees Khristel Clautice and Frank Clautice, the maternal
grandparents of Appellant’s minor child. On appeal, Appellant does
not challenge the trial court’s ruling in her favor as to the final
consent order but challenges three other orders from the revocation
proceeding: an order denying Appellant’s motion to declare
unconstitutional the grandparent visitation statute, OCGA § 19-7-
3; an order denying Appellant’s motion for a contempt citation
against Appellees; and an order denying Appellant’s motion for
attorney fees and expenses. As explained below, we dismiss as moot
the portion of Appellant’s appeal that challenges the
constitutionality of the grandparent visitation statute, and we affirm the trial court’s orders denying Appellant’s contempt motion
and motion for attorney fees and expenses.
1. In 2017, Appellant was granted sole legal and physical
custody of her minor child, and the father of Appellant’s minor child
was granted visitation rights. Appellees filed a petition for
grandparent visitation, and, on March 16, 2022, the trial court
entered a final consent order (“Grandparent Visitation Order”),
which permitted Appellees to visit with Appellant’s minor child
pursuant to an agreed-upon visitation schedule.
On November 16, 2022, Appellant filed a petition asking the
trial court to set aside and revoke the Grandparent Visitation Order,
to issue a citation of contempt against Appellees for their failure to
comply with the Grandparent Visitation Order, to declare OCGA
§ 19-7-3 facially unconstitutional and unconstitutional as applied,
and to award Appellant attorney fees and expenses.
Appellant also filed a separate motion to declare the
grandparent visitation statute unconstitutional. Appellant argued
that the grandparent visitation statute was unconstitutional
2 because it “fails to provide[,] and Georgia appellate decisions do not
set forth[,]” (1) who has the burden of proof when a parent seeks to
revoke a grandparent visitation order, (2) whether proof by clear and
convincing evidence that a child would be harmed absent visitation
is required for a grandparent to obtain visitation or for the court to
deny a petition to revoke visitation, (3) whether “good cause” for
revoking grandparent visitation is shown if there is an “absence of a
finding of harm,” and (4) whether courts are prevented from
granting or required to revoke grandparent visitation where the
child lives with both parents. Based on her constitutional
arguments, Appellant asked the trial court to vacate the
Grandparent Visitation Order and “declare OCGA § 19-7-3 facially
unconstitutional and [unconstitutional] as applied here.”
After Appellees answered the petition, the trial court held a
hearing on Appellant’s petition. The parties made arguments at the
hearing but did not present any evidence or testimony.
On December 5, 2022, the court entered an order summarily
denying Appellant’s motion to declare OCGA § 19-7-3
3 unconstitutional. And on December 12, 2022, the court entered an
order that “set aside and vacated” the Grandparent Visitation
Order. In short, the court concluded that “the Grandparent
Visitation Order contain[ed] nonamendable defects which
appear[ed] upon the face of the record and the pleadings” because
the father had not been joined as a necessary party under OCGA §
9-11-19 (a) (providing for joinder of indispensable parties), and
because the court had failed to make certain factual findings by clear
and convincing evidence, as required by OCGA § 19-7-3 (c) (1)
(providing that “the court may grant . . . reasonable visitation rights
if the court [makes certain findings] by clear and convincing
evidence,” and requiring courts to “make specific written findings of
fact in support of its rulings”).
On January 30, 2023, Appellant filed a “Second Motion for an
Award of OCGA § 19-7-3 Attorney’s Fees and Expenses.”1 Appellant
argued that attorney fees and expenses were warranted under
1 While the record does not contain a “first” motion for attorney fees and
expenses, Appellant’s petition seeking to vacate the Grandparent Visitation Order sought attorney fees and expenses. 4 OCGA § 9-15-14 (a) and (b) because Appellees had defended an
action that lacked substantial justification, choosing to file “their
objections and answers” to Appellant’s petition when they instead
“should have conceded that the order at issue should be set aside.”2
On May 31, 2023, the court summarily denied the motion for
attorney fees and expenses, stating that it did so “[a]fter careful
consideration of the motion.” The same day, the court issued an
order denying Appellant’s motion for a citation of contempt. In that
order, the court stated that “[t]he parties and their respective
counsel [had] com[e] before the [c]ourt” for a hearing on Appellant’s
petition seeking revocation of the Grandparent Visitation Order and
a citation of contempt, and that, “[a]fter careful consideration of the
testimony and evidence heard at the hearing, this [c]ourt does not
2 OCGA § 9-15-14 provides that, in a civil action, a court can award attorney fees and expenses if a “party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position,” OCGA § 9- 15-14 (a), or if the court makes a finding “that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification[,] or that the action, or any part thereof, was interposed for delay or harassment, or . . . that an attorney or party unnecessarily expanded the proceeding by other improper conduct,” OCGA § 9-15-14 (b). 5 find willful or intentional contempt by the [Appellees].” Appellant
then timely filed a notice of appeal directed to this Court.
2. On appeal, Appellant first argues that the trial court
erred in failing to declare the grandparent visitation statute facially
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318 Ga. 573 FINAL COPY
S24A0004. CRARY v. CLAUTICE et al.
COLVIN, Justice.
In this case, the trial court granted Appellant Allison Crary’s
petition to set aside and revoke a final consent order, which had
granted grandparent visitation rights under OCGA § 19-7-3 to
Appellees Khristel Clautice and Frank Clautice, the maternal
grandparents of Appellant’s minor child. On appeal, Appellant does
not challenge the trial court’s ruling in her favor as to the final
consent order but challenges three other orders from the revocation
proceeding: an order denying Appellant’s motion to declare
unconstitutional the grandparent visitation statute, OCGA § 19-7-
3; an order denying Appellant’s motion for a contempt citation
against Appellees; and an order denying Appellant’s motion for
attorney fees and expenses. As explained below, we dismiss as moot
the portion of Appellant’s appeal that challenges the
constitutionality of the grandparent visitation statute, and we affirm the trial court’s orders denying Appellant’s contempt motion
and motion for attorney fees and expenses.
1. In 2017, Appellant was granted sole legal and physical
custody of her minor child, and the father of Appellant’s minor child
was granted visitation rights. Appellees filed a petition for
grandparent visitation, and, on March 16, 2022, the trial court
entered a final consent order (“Grandparent Visitation Order”),
which permitted Appellees to visit with Appellant’s minor child
pursuant to an agreed-upon visitation schedule.
On November 16, 2022, Appellant filed a petition asking the
trial court to set aside and revoke the Grandparent Visitation Order,
to issue a citation of contempt against Appellees for their failure to
comply with the Grandparent Visitation Order, to declare OCGA
§ 19-7-3 facially unconstitutional and unconstitutional as applied,
and to award Appellant attorney fees and expenses.
Appellant also filed a separate motion to declare the
grandparent visitation statute unconstitutional. Appellant argued
that the grandparent visitation statute was unconstitutional
2 because it “fails to provide[,] and Georgia appellate decisions do not
set forth[,]” (1) who has the burden of proof when a parent seeks to
revoke a grandparent visitation order, (2) whether proof by clear and
convincing evidence that a child would be harmed absent visitation
is required for a grandparent to obtain visitation or for the court to
deny a petition to revoke visitation, (3) whether “good cause” for
revoking grandparent visitation is shown if there is an “absence of a
finding of harm,” and (4) whether courts are prevented from
granting or required to revoke grandparent visitation where the
child lives with both parents. Based on her constitutional
arguments, Appellant asked the trial court to vacate the
Grandparent Visitation Order and “declare OCGA § 19-7-3 facially
unconstitutional and [unconstitutional] as applied here.”
After Appellees answered the petition, the trial court held a
hearing on Appellant’s petition. The parties made arguments at the
hearing but did not present any evidence or testimony.
On December 5, 2022, the court entered an order summarily
denying Appellant’s motion to declare OCGA § 19-7-3
3 unconstitutional. And on December 12, 2022, the court entered an
order that “set aside and vacated” the Grandparent Visitation
Order. In short, the court concluded that “the Grandparent
Visitation Order contain[ed] nonamendable defects which
appear[ed] upon the face of the record and the pleadings” because
the father had not been joined as a necessary party under OCGA §
9-11-19 (a) (providing for joinder of indispensable parties), and
because the court had failed to make certain factual findings by clear
and convincing evidence, as required by OCGA § 19-7-3 (c) (1)
(providing that “the court may grant . . . reasonable visitation rights
if the court [makes certain findings] by clear and convincing
evidence,” and requiring courts to “make specific written findings of
fact in support of its rulings”).
On January 30, 2023, Appellant filed a “Second Motion for an
Award of OCGA § 19-7-3 Attorney’s Fees and Expenses.”1 Appellant
argued that attorney fees and expenses were warranted under
1 While the record does not contain a “first” motion for attorney fees and
expenses, Appellant’s petition seeking to vacate the Grandparent Visitation Order sought attorney fees and expenses. 4 OCGA § 9-15-14 (a) and (b) because Appellees had defended an
action that lacked substantial justification, choosing to file “their
objections and answers” to Appellant’s petition when they instead
“should have conceded that the order at issue should be set aside.”2
On May 31, 2023, the court summarily denied the motion for
attorney fees and expenses, stating that it did so “[a]fter careful
consideration of the motion.” The same day, the court issued an
order denying Appellant’s motion for a citation of contempt. In that
order, the court stated that “[t]he parties and their respective
counsel [had] com[e] before the [c]ourt” for a hearing on Appellant’s
petition seeking revocation of the Grandparent Visitation Order and
a citation of contempt, and that, “[a]fter careful consideration of the
testimony and evidence heard at the hearing, this [c]ourt does not
2 OCGA § 9-15-14 provides that, in a civil action, a court can award attorney fees and expenses if a “party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position,” OCGA § 9- 15-14 (a), or if the court makes a finding “that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification[,] or that the action, or any part thereof, was interposed for delay or harassment, or . . . that an attorney or party unnecessarily expanded the proceeding by other improper conduct,” OCGA § 9-15-14 (b). 5 find willful or intentional contempt by the [Appellees].” Appellant
then timely filed a notice of appeal directed to this Court.
2. On appeal, Appellant first argues that the trial court
erred in failing to declare the grandparent visitation statute facially
unconstitutional and unconstitutional as applied. In particular,
Appellant challenges the constitutionality of the legal standards for
granting visitation rights to a grandparent under OCGA § 19-7-3 (c)
(1) and for revoking visitation rights that have previously been
granted to a grandparent under OCGA § 19-7-3 (c) (2).3 According to
3 In relevant part, paragraphs (1) and (2) of OCGA § 19-7-3 (c) provide:
(1) Upon the filing of an original action or upon intervention in an existing proceeding under subsection (b) of this Code section, the court may grant any family member of the child 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. . . . 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
6 Appellant, these legal standards fail to adequately protect parents’
“fundamental liberty interests” in “the care, custody, and control of
their children.” Troxel v. Granville, 530 U. S. 57, 65 (II) (120 SCt
2054, 147 LE2d 49) (2000).
We conclude, however, that Appellant’s constitutional
challenges are moot. “Mootness is an issue of jurisdiction and thus
must be determined before a court addresses the merits of a claim.”
In the Interest of M. F., 305 Ga. 820, 820 (828 SE2d 350) (2019)
(citation and punctuation omitted). “When the resolution of a case
would be tantamount to the determination of an abstract question
not arising upon existing facts or rights,” and “[w]hen the remedy
visitation or child care by the family member with the child; or (D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted. The court shall make specific written findings of fact in support of its rulings. (2) . . . After visitation rights have been granted to any grandparent, the . . . parent of the child may petition the court for revocation or amendment of such visitation rights, for good cause shown, which the court, in its discretion, may grant or deny. . . .
(Emphasis supplied.) 7 sought in litigation no longer benefits the party seeking it, the case
is moot and must be dismissed.” McAlister v. Clifton, 313 Ga. 737,
738 (1) (873 SE2d 178) (2022) (citation and punctuation omitted).
Here, Appellant’s constitutional challenges to the grandparent
visitation statute are moot because a reversal of the trial court’s
order denying Appellant’s request to declare the statute
unconstitutional “would have no practical effect on the underlying
controversy.” Knox v. State of Ga., 316 Ga. 426, 427-428 (888 SE2d
497) (2023) (citation and punctuation omitted). The trial court
already ruled in Appellant’s favor when it “set aside and vacated”
the Grandparent Visitation Order on other grounds. And we “h[ave]
no province to determine whether or not [the] statute, in the
abstract, is valid.” Id. (citation and punctuation omitted).
Appellant argues that a declaration regarding the
constitutionality of the grandparent visitation statute is
nevertheless authorized here because “she remains in a position of
uncertainty with respect to her child and her parents,” “[a]ll
parenting decisions and all personal decisions she makes henceforth
8 will require consideration of the impact, if any, on that ever lurking,
ever threatening grandparent visitation action authorized by OCGA
§ 19-7-3,” and she “lives in fear that she may be served with a
summons and petition for grandparent visitation.”
Appellant is correct that
[a] declaratory judgment is authorized when there are circumstances showing a necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest.
Baker v. City of Marietta, 271 Ga. 210, 214 (1) (518 SE2d 879) (1999)
(citation and punctuation omitted). But “the relief sought by a
plaintiff must have some immediate legal effect on the parties’
conduct, rather than simply burning off an abstract fog of
uncertainty,” because “courts may not properly render advisory
opinions.” City of Atlanta v. Atlanta Independent School System, 307
Ga. 877, 880 (838 SE2d 834) (2020). Appellant’s request for
declaratory relief here does not meet that standard because she
9 asserts only abstract uncertainty over unspecified parenting
decisions and “has not articulated any future conduct upon which
this Court’s resolution” of her constitutional challenges depend. Id.
Nor does Appellant’s stated fear of similar litigation in the
future establish that the constitutional issues she raises avoid
mootness on the basis that they are “capable of repetition yet
evade[ ] review.” McAlister, 313 Ga. at 740 (1). The fact that
Appellees could file a new petition for grandparent visitation or that
Appellant might initiate a new revocation proceeding if Appellees
are again granted visitation rights does not show that Appellant’s
constitutional challenges would evade review. To the contrary,
Appellant, like any parent, could raise her constitutional challenges
to the statutory standards for granting or revoking grandparent
visitation in a new action for grandparent visitation, if one is filed,
or in a new petition to revoke grandparent visitation, if visitation is
ordered in the future. See id. (“While the question of the
constitutionality of the equitable caregiver statute may well be
raised again, there is no reason to believe that it will evade review.
10 Any time a person seeks custody or visitation pursuant to the
equitable caregiver statute, the opposing party may challenge the
constitutionality of the statute and the court may consider it . . . .”).
Accordingly, we dismiss as moot the portion of Appellant’s appeal
challenging the trial court’s denial of Appellant’s request for a
declaration that the grandparent visitation statute is
unconstitutional.
3. Next, Appellant challenges the trial court’s denial of her
motion to hold Appellees in contempt. “Trial courts have broad
discretion in ruling on a motion for contempt, and the trial court’s
ruling will be affirmed on appeal if there is any evidence in the
record to support it.” Horn v. Shepherd, 292 Ga. 14, 17 (4) (732 SE2d
427) (2012) (citation and punctuation omitted). “In order for one to
be held in contempt, there must be a wilful disobedience of the
court’s decree or judgment.” Knott v. Knott, 277 Ga. 380, 381 (1) (589
SE2d 99) (2003) (citation and punctuation omitted).
Here, the trial court ruled that, “[a]fter careful consideration of
the testimony and evidence heard at the hearing, this [c]ourt does
11 not find willful or intentional contempt by the [Appellees].”
Appellant contends that this ruling contains an implicit finding that
the parties presented testimony and evidence at the hearing, and
that this implicit finding was erroneous because no testimony or
evidence was presented at the hearing. But even assuming without
deciding that these contentions are correct, they do not establish
that the trial court abused its discretion in denying Appellant’s
contempt motion. As Appellant concedes, no evidence was presented
at the hearing to support a contempt finding. And the record does
not indicate that the court prohibited Appellant from introducing
evidence in support of her motion. Accordingly, the trial court did
not abuse its discretion in concluding that a contempt citation was
unwarranted. See Weaver v. Weaver, 242 Ga. 327, 328-329 (3) (249
SE2d 36) (1978) (holding that “the judge did not abuse his discretion
in refusing to hold the former husband in contempt” where “[t]he
judge did not refuse to hear evidence on the issue of contempt, but
none was offered by either party”). See also Killingsworth v.
Killingsworth, 286 Ga. 234, 237 (3) (686 SE2d 640) (2009) (holding
12 that “there was ample evidence in the record to support the court’s
finding that [an ex-wife] did not willfully disobey the provision of the
divorce decree requiring her to leave the marital residence in the
same condition” in part because “[t]here [was] no evidence in the
record that [she] did anything to damage the marital residence”).
4. Finally, Appellant argues that the trial court abused its
discretion in denying her motion for attorney fees and expenses
because the court ruled on the motion without holding a hearing and
taking evidence, and because the court considered only Appellant’s
motion, not the entire record, in ruling on the motion. We disagree.
Contrary to Appellant’s argument, the trial court was not
required to hold a hearing or take evidence before denying the
motion for attorney fees and expenses. As we have explained, “[a]
hearing is required in order to enter an award of attorney fees . . .
because an oral hearing gives the party opposing attorney fees an
opportunity to confront and challenge testimony with regard to the
need for, and value of, legal services.” Evers v. Evers, 277 Ga. 132,
132 (1) (587 SE2d 22) (2003) (emphasis supplied). “But this rationale
13 does not apply unless attorney fees are to be awarded,” meaning that
a hearing is not required “[i]f attorney fees are not to be awarded.”
Id. Here, the trial court was not required to hold a hearing or take
evidence before ruling on Appellant’s request for attorney fees and
expenses because the request was denied. See id.
Appellant’s argument that the court failed to consider the
entire record in ruling on the motion likewise fails. Appellant
appears to argue that the trial court confined its analysis to the four
corners of her motion because the court said it was denying the
motion “[a]fter careful consideration of the motion.” But this
statement indicates only that the court considered the motion, not
that it failed to consider the rest of the record. Moreover, Appellant’s
motion highlighted portions of the record that Appellant believed
supported her motion for attorney fees and expenses. Because the
court stated that it had carefully considered the motion, it
“presumably took this information . . . into account.” Driver v.
Driver, 292 Ga. 800, 804-805 (4) (741 SE2d 631) (2013) (noting that
we generally presume that a trial court considered “all the evidence
14 presented”). Accordingly, Appellant has not shown that the trial
court abused its discretion in denying her motion for attorney fees
and expenses.
Judgment affirmed in part and appeal dismissed in part. All the Justices concur.
Decided March 5, 2024.
OCGA § 19-7-3; constitutional question. Fulton Superior
Court. Before Judge Newkirk.
David S. DeLugas, for appellant.
Rubin Family Law, Kevin J. Rubin, for appellee.