Joanna G. Evans v. Connie Sangster

• Court: Court of Appeals of Georgia
• Decided: January 15, 2015
• Docket: A14A2110
• Status: Published

Opinion

FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and MCMILLIAN, J.

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/

January 15, 2015

In the Court of Appeals of Georgia A14A2110. EVANS v. SANGSTER et al. JE-108

A15A0079. EVANS v. SANGSTER et al. JE-005

ELLINGTON, Presiding Judge.

In Case No. A14A2110, Joanna Evans (“Joanna”) appeals from an order of

Superior Court of Crisp County, which entered a judgment affecting two cases that

were consolidated below: (1) a petition brought by Connie and Bob Sangster (“the

Sangsters”), in which they sought visitation with their biological grandson, Joanna’s

minor child, C. S.; and (2) a petition for stepparent adoption brought by Joanna’s

husband, Jason Evans (“Jason”), in which the Sangsters intervened. In related claims

of error, Joanna contends that the trial court erred in granting the Sangsters visitation

with C. S. She also contends that the trial court erred in consolidating the proceedings below, and in issuing an adoption decree that was “subject to” the court’s final

decision with respect to grandparent visitation. Finally, she argues that, although the

court granted her husband’s petition to adopt, the court erred in entering a decree

allowing C. S. to retain his father’s surname.

In Case No. A15A0079, Jason appeals from the final decree of adoption. Jason

raises the same claims of error that Joanna raises in her appeal. Because these matters

were consolidated by the trial court below and decided based upon the same facts, we

consolidate these appeals for the purposes of this opinion. See, e.g., Ray v. Hahn, 323

Ga. App. 45 (746 SE2d 600) (2013).

The facts relevant to both appeals are as follows. The Sangsters are the paternal

grandparents of the minor child, C. S. C. S. is the son of Joanna and of the Sangsters’

son, Robert Michael Sangster, Jr. (“Michael”). Joanna and Michael divorced on

March 25, 2010, about two years after C. S. was born. The final decree awarded the

parties joint legal custody of C. S., with Joanna being the child’s primary physical

custodian. The final divorce decree incorporated a separation agreement which

provided as follows:

The parties agree that[,] in the event of the husband’s death during the minority of their child, the Husband’s parents shall be entitled to

2 reasonable visitation rights with said child, and that in the event of the Wife’s death during the minority of the child, the Wife’s parents shall be entitled to reasonable visitation rights with the child.

After the divorce, the Sangsters regularly visited with C. S., primarily when he was

staying with his father during his custodial visits. On August 27, 2011, Joanna

married Jason. Michael died of cancer in July 2012.

Not long after Michael’s death, the Sangsters experienced resistance from

Joanna in their efforts to continue regular visitation with C. S. Consequently, they

sought the advice of counsel and, with counsel’s assistance, they entered into an

agreement with Joanna setting forth a regular visitation schedule. On July 15, 2013,

the Sangsters filed a petition seeking court-ordered grandparent visitation, which

initiated the underlying suit, Civil Action No. 13V-159. When Joanna was served

with the suit, she immediately withheld all visitation with C. S. from the Sangsters.

Consequently, the Sangsters amended their complaint to include a contempt count.

In her amended answer, Joanna “denie[d] that the [Sangsters] are ‘entitled to remain

an integral part of [C. S.’s] life as though his father were still alive[,]’” and asserted

that any visitation between C. S. and his grandparents was entirely at her discretion.

3 On July 26, 2013, eleven days after the Sangsters filed their petition for

visitation, Jason filed his petition for stepparent adoption, Civil Action No.

13AV-005. The Sangsters moved to intervene in the adoption on August 9, 2013,

seeking to preserve their visitation with C. S. The Sangsters also filed an objection

to the adoption on September 5, 2013. The court granted the Sangsters’ motion to

intervene in the adoption proceeding on February 20, 2014.

On August 26, 2013, the court held a temporary hearing in Case No. 13V-159

on the issue of grandparent visitation. A psychologist who had met with the Sangsters

testified that C. S. would be harmed if he was unable to see his grandparents. He

opined that grandparent visitation is especially important to a child who has lost a

parent. He further testified that C. S. would benefit from regular and predictable

visitation with his father’s side of the family. During her hearing testimony, Joanna

admitted that the Sangsters do, indeed, have a close bond with C. S. She admitted that

she had entered into an agreement with the Sangsters allowing them reasonable

visitation. She also admitted withholding that visitation when the Sangsters sought

a court-ordered visitation schedule. Joanna explained that what constitutes

“reasonable visitation” should be in her sole discretion, that she should be permitted

to allow visitation only when it is convenient for her and her new family, and that

4 reasonable visitation could mean no visitation if the circumstances demanded it. The

court also took into consideration 64 affidavits submitted by friends and family of the

Sangsters, attesting to the Sangsters’ character and to their relationship with C. S. At

the conclusion of the hearing, the court ruled from the bench that grandparent

visitation would resume immediately and that a written order would follow.

On September 9, 2013, the trial court entered a temporary order in Case

No.13V-159, finding that “[C. S.] had a close relationship and a bond with [the

Sangsters,]” and that the Sangsters had maintained that bond after C. S.’s father had

died. The trial court also found that Joanna had entered into an agreement allowing

the Sangsters visitation, but had withheld visitation when she was served with the

instant petition. The court found her in contempt for her wholesale denial of visitation

to the Sangsters, which the trial court found to be “inherently unreasonable”;

however, the court withheld the imposition of any sanctions. The trial court ordered

that the Sangsters were entitled to reasonable visitation with C. S., and set forth a

temporary visitation schedule. Joanna did not comply with the court-ordered

visitation schedule, and on October 4, 2013, the trial court granted the Sangsters’

motion for contempt, finding that Joanna willfully and knowingly violated the

temporary order and imposed sanctions.

5 On February 20, 2014, the court consolidated the Sangsters’ petition for

grandparent visitation and Jason’s petition for adoption. Thereafter, the parties

submitted letter briefs, but it does not appear from the record in either case that any

additional evidence was presented to the court. On May 19, 2014, the trial court

entered two orders. In one order, styled jointly under Civil Action Nos. 13AV-005

and 13V-159, the court addressed the issue of visitation only. In that order, the court

made specific findings of fact, including that C. S. had a close bond with the

Sangsters, that there had been a regular pattern of visitation between them, that C. S.

would be harmed if visitation were to cease, and that it was in the best interest of C.

S. to have scheduled visitation with the Sangsters, especially given the death of his

father. In the second order, entered in Civil Action No. 13AV-005 only, the court

granted Jason’s petition and issued the decree of adoption. The final decree of

adoption provided that “nothing in the foregoing decree shall in any way interfere

with visitation rights previously granted by this Court in a Final Order in Case No.

13V-159.” The decree also provided that C. S.’s surname would not be changed to

“Evans,” as Jason requested.

Case No. A14A2110

6 1. Joanna contends that, given her husband’s petition to adopt C. S., the trial

court lacked the legal authority to grant the Sangsters’ petition for grandparent

visitation. Joanna does not argue that, at the time they filed their petition for

visitation, the Sangsters lacked the right to do so pursuant to OCGA § 19-7-3 (b) (1).

Nor does she take issue with the court’s factual findings or with the quantum of

evidence supporting the award of visitation. Rather, she argues that the trial court

should have granted Jason’s petition for adoption first, and, had the court done so, the

adoption decree would have had the effect of extinguishing the Sangsters’ right to

seek visitation with their grandchild. Because this claim of error pertains to the effect

of the adoption decree and because the same argument is raised by Jason, we address

it in Case No. A15A0079 below. For the reasons set forth in Division 4, infra, this

claim of error is without merit.

2. Joanna also argues that the court gave no deference to her wishes in crafting

the visitation schedule contained within the order awarding grandparent visitation.

This assertion is not supported by the record. The court’s order indicates that it

expressly recognized that Joanna’s “judgment as to the best interest of the child

regarding visitation shall be given deference”; however, it “shall not be conclusive[,]”

citing OCGA § 19-7-3 (d). The record shows that the court entertained proposed

7 orders from the parties concerning visitation, and that the court’s final order was a

compromise between the two. The final order also takes into account those unforseen

circumstances that may conflict with court-ordered visitation, allowing Joanna

discretion to give priority to C. S.’s educational and medical needs. Joanna also

complains that the amount of visitation awarded exceed the minimum allowed by law,

citing OCGA § 19-7-3 (c) (4). That Code section, however, sets no maximum limit

on visitation1, and Joanna has set forth no argument demonstrating that the court-

ordered visitation is unauthorized or excessive. Consequently, we find this claim of

error to be without merit.

3. Joanna’s remaining claims of error pertain to the adoption proceeding. Those

claims of error are addressed in Jason’s appeal below.

Case No. A15A0079

4. Jason contends that the court should have granted the adoption petition first,

and, had the court done so, the Sangsters would have had no standing to object to the

1 OCGA § 19-7-3 (c) (4) provides: “In no case shall the granting of visitation rights to a grandparent interfere with a child’s school or regularly scheduled extracurricular activities. Visitation time awarded to a grandparent shall not be less than 24 hours in any one-month period.”

8 adoption or to seek visitation.2 He also argues that the trial court erred in

consolidating the adoption and visitation proceedings below because the cases do not

involve common questions. He also argues that no authority exists for permitting a

“conditional adoption”; therefore, the court erred in issuing an adoption decree that

incorporated the court’s final decision with respect to grandparent visitation. For the

following reasons, we disagree.

(a) Jason argues that the trial court was required by OCGA § 19-8-14 (a) to

hear the adoption proceeding within 120 days of its filing date, and, had the court

2 “Generally, the adoption of a minor child extinguishes any visitation rights of the child’s former grandparents — OCGA § 19-8-19 (a) (1) provides that a decree of adoption has the effect of severing all former relationships of the adopted child.” Hudgins v. Harding, 313 Ga. App. 613, 614 (722 SE2d 355) (2012). OCGA § 19-8- 19 (a) (1) provides:

Except with respect to a spouse of the petitioner and relatives of the spouse, a decree of adoption terminates all legal relationships between the adopted individual and his relatives, including his parent, so that the adopted individual thereafter is a stranger to his former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship[.]

9 complied with that time-frame, the adoption decree would have been issued before

the Sangster’s visitation order and would have cut off the Sangsters’ right to seek

visitation. The 120-day time frame for hearing adoption petitions applies, however,

only to uncontested adoptions.3 The Sangsters both intervened in the adoption and

filed an objection to it specifically to preserve their visitation rights pursuant to

OCGA § 19-7-3. Consequently, this argument lacks merit.

(b) Jason argues that OCGA § 9-11-42 (a),4 the general statute concerning the

consolidation of civil actions, required both his and Joanna’s consent to consolidate

and a common question of law or fact, and that neither were present in this case.

Moreover, he argues that OCGA § 19-8-18, pertaining to adoption hearings and

3 OCGA § 19-8-14 (a) provides, in relevant part that “[i]t is the policy of this state that, in the best interest of the child, uncontested adoption petitions should be heard as soon as possible but not later than 120 days after the date of filing[.]” 4 OCGA § 9-11-42 (a) provides:

When actions involving a common question of law or fact are pending before the court, if the parties consent, the court may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

10 decrees, does not contemplate permitting such consolidation. However, Jason ignores

OCGA § 19-7-3 (b) (1), which specifically authorizes the determination of

grandparent visitation rights within the context of a stepparent adoption proceedings

if the grandparents have been allowed to intervene. The Supreme Court of Georgia

has held that

[a] plain reading of OCGA §19-7-3 (b) offers two avenues by which grandparents may seek court-sanctioned visitation rights to their grandchildren. They can (1) file an original action or they can (2) intervene in an existing court action. Grandparents may intervene in any action where custody of the grandchild is an issue; in the divorce of the parents or a parent; in the termination of rights case of either parent; in the termination of visitation rights of either parent; and in the adoption of the grandchild by a blood relative or by a stepparent.

(Emphasis supplied.) Kunz v. Bailey, 290 Ga. 361, 362 (720 SE2d 634) (2012). And

the legislature provided that this right of intervention exists “notwithstanding the

provisions of Code Section 19-8-19[,]” which pertains to the effect of an adoption

decree. Thus, grandparents may intervene in an action for stepparent adoption even

though the subsequent granting of such an adoption would ordinarily have the effect

of severing the rights of the grandparents to the grandchild.5

5 See footnote 1, supra.

11 When the Sangsters filed their original action for visitation, the adoption

petition had not yet been filed. At that time, Jason was not yet the legal parent6 of C.

S.; thus, the exception to OCGA § 19-7-3 (b) (1) did not apply to bar the original

action, subjecting it to dismissal. That exception, codified at OCGA § 19-7-3 (b) (2)

provides: “This subsection shall not authorize an original action where the parents of

the minor child are not separated and the child is living with both parents.”7 When

Jason subsequently filed his petition to adopt, the Sangsters promptly filed a motion

to intervene in the adoption to protect their visitation rights. The court granted the

Sangsters’ motion to intervene on the ground that it was necessary to do so to

preserve the Sangsters’ standing to seek visitation with their grandchild.

Contemporaneously with the order granting intervention, the court ordered the cases

consolidated.

6 Jason was not the legal parent of C. S. until the court entered an adoption decree declaring him as such. OCGA § 19-8-1 (6) (A). Pursuant to Georgia adoption law, a “‘[p]arent’ means either the legal father or the legal mother of the child.” OCGA § 19-8-1 (8). 7 See Kunz v. Bailey, 290 Ga. at 362. (“[B]y virtue of the limiting language in the last sentence of OCGA §19-7-3 (b), grandparents may only file an original action for visitation when the parents are separated and the child is not living with both parents.”).

12 Because OCGA § 19-7-3 (b) (1) permitted the Sangsters to intervene in the

adoption proceeding to protect their visitation with C. S., it was not error to

consolidate the cases, as Jason argues. Under the circumstances, the consolidation

order was a housekeeping order that allowed the court to consider evidence from both

cases without requiring the parties to re-file pleadings, affidavits, hearing transcripts,

and other documents of record. Consequently, we find no error in the court’s order

consolidating the cases.

(c) Jason argues that the court was not authorized to incorporate the order

awarding grandparent visitation into the adoption decree. However, OCGA § 19-7-3

(c) (1) expressly provides that, “upon intervention in an existing proceeding under

subsection (b) of this Code section, the court may grant any grandparent of the child

reasonable visitation rights,” assuming that the requisite facts supporting the award

of visitation exist.8 An “existing proceeding” under OCGA § 19-7-3 (b) (1)

8 OCGA § 19-7-3 (c) (1) directs the court to make specific factual findings concerning whether “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 (d) provides that

[n]otwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased,

13 specifically includes an action for stepparent adoption. Kunz v. Bailey, 290 Ga. at

362. Consequently, OCGA § 19-7-3 (c) (1) specifically authorizes a court in an

stepparent adoption proceeding to award grandparent visitation as part of the

adoption decree.

Contrary to Jason’s argument, OCGA § 19-8-15 does not limit the court’s

authority to award visitation granted pursuant to OCGA § 19-7-3. OCGA § 19-8-159

incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive. 9 OCGA § 19-8-15 provides:

If the child sought to be adopted has no legal father or legal mother living, it shall be the privilege of any person related by blood to the child to file objections to the petition for adoption. A grandparent with visitation rights to a child granted pursuant to Code Section 19-7-3 shall have the privilege to file objections to the petition of adoption if neither parent has any further rights to the child and if the petition for adoption has been filed by a blood relative of the child. The court, after hearing such objections, shall determine, in its discretion, whether or not the same constitute a good reason for denying the petition and the court shall have the authority to grant or continue such visitation rights of the

14 pertains to “objections” that certain relatives of the child sought to be adopted may

make to the petition to adopt in those circumstances where both of the child’s parents

are either deceased or no longer have parental rights. Further, that Code section gives

the court the authority and discretion to continue grandparent visitation after an

adoption by a blood relative, demonstrating that such a “conditional” adoption decree

is not unique to OCGA § 19-7-3.

5. Jason argues that, despite the court’s broad discretion in adoption

proceeding,10 it was required to change C. S.’s surname as requested in the petition,

citing OCGA § 19-8-18 (b). We agree. Once the court is satisfied that the

prerequisites for an adoption exist, “it shall enter a decree of adoption, . . . naming the

child as prayed for in the petition[.]” Id. See OCGA § 19-8-13 (a) (1) (B) (The

petition shall set form “[t]he name by which the child is to be known should the

adoption ultimately be completed.”) Consequently, we must vacate the adoption

grandparent to the child in the adoption order in the event the adoption by the blood relative is approved by the court. 10 In an adoption case, the trial judge sits as trier of fact and is vested with a broad range of legal discretion which will not be controlled by the appellate courts except in cases of plain abuse. Sastre v. McDaniel, 293 Ga. App. 671 (667 SE2d 896) (2008).

15 decree and remand the case to the superior court with the instruction that the decree

be revised accordingly.

Judgment affirmed in Case No. A14A2110. Judgment affirmed in part and

vacated in part in Case No. A15A0079 and case remanded with direction. Phipps, C.

J., and McMillian, J., concur.