Rimmer v. Tinch

749 S.E.2d 236, 324 Ga. App. 65, 2013 Fulton County D. Rep. 2993, 2013 WL 5391171, 2013 Ga. App. LEXIS 794
CourtCourt of Appeals of Georgia
DecidedSeptember 27, 2013
DocketA13A1368
StatusPublished
Cited by4 cases

This text of 749 S.E.2d 236 (Rimmer v. Tinch) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rimmer v. Tinch, 749 S.E.2d 236, 324 Ga. App. 65, 2013 Fulton County D. Rep. 2993, 2013 WL 5391171, 2013 Ga. App. LEXIS 794 (Ga. Ct. App. 2013).

Opinion

Miller, Judge.

John and Mary Rimmer, adoptive father and biological mother of son M. H. R., born April 9, 2004, appeal from the trial court’s grant of a petition to modify the visitation rights of Shane Tinch, the biological father of M. H. R., and the trial court’s grant of a motion for contempt filed by Tinch and Patricia Frix, the paternal grandmother of M. H. R., alleging interference with their visitation rights. The termination of Shane Tinch’s parental rights, M. H. R.’s adoption by John Rimmer, and Tinch and Frix’s visitation rights were all accomplished by a consent order. On appeal, the Rimmers challenge the consent order as void. They also argue that the trial court erred in modifying Tinch’s visitation and in awarding attorney fees. For the reasons that follow, we affirm in part, vacate in part, and remand with direction.

In an adoption case, the trial judge sits as both judge and jury 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). In addition, “a trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” (Citation omitted.) Hunter v. Hunter, 289 Ga. 9, 11 (4) (709 SE2d 263) (2011).

The following is not disputed. On November 19, 2009, Tinch’s petition to legitimate M. H. R. was dismissed. On December 7, 2009, the superior court entered its “Consent Order Entering Decree of Adoption” (hereafter “Consent Order”).

In the Consent Order, the trial court made the following findings of fact and conclusions of law. Tinch was not married to Mary Rimmer when M. H. R. was born and did not file any action to legitimate him until one month after John Rimmer’s petition to adopt was filed. Since his birth, M. H. R. has been in the legal custody of his mother and, since June 2005, John Rimmer has lived with the mother and child. John and Mary married in May 2006.

Since August 2004, Tinch failed to provide for the care and support of the child for over a year and since April 2005, Tinch failed to communicate with or to make a bona fide attempt to communicate with the child for over a year. Thus, the trial court found that sufficient evidence existed to terminate his parental rights pursuant to OCGA § 19-8-10 (b) (1) & (b) (2). Nonetheless, the Rimmers agreed that Tinch “shall have the right to begin supervised visits with [M. H. R.] on those occasions that this child is visiting with his paternal grandmother, Patricia Frix, who shall be responsible for supervising all visits” between Tinch and the child. Further, the [66]*66Rimmers agreed that, if Tinch could prove that “he has established a familial bond” with the child, one year after entry of the adoption order he could file a petition seeking unsupervised visits to be set by the trial court or agreed by the parties.

The Consent Order further found that, since the child’s birth, the paternal grandmother, Frix, had been allowed regular unsupervised visits with the child. The Rimmers agreed that Frix had established a bond with the child and that it was in the child’s best interest to continue the visits with her. Additionally, John Rimmer agreed that Frix be allowed to intervene in the adoption proceeding in order to seek continuation of her visits with the child.

No appeal was taken from the Consent Order. More than one year after the Consent Order, Tinch filed his motion to modify visitation rights, seeking the right to have unsupervised visitation with the child, as provided in the Consent Order.

Having obtained new counsel, the Rimmers filed an objection to the motion, including a plea for a declaratory judgment finding the Consent Order void, as well as a motion for summary judgment asserting that allowing visitation with Tinch and Frix was illegal. In response, Tinch and Frix asserted that the Rimmers were estopped from challenging the Consent Order. Tinch and Frix also filed a motion for contempt against the Rimmers, based upon denial of their visitation rights beginning in September 2011.

The trial court denied the Rimmers’ motion for summary judgment, concluding that, pursuant to OCGA § 19-7-3 (b), as amended in 1993, Ga. L. 1993, p. 456, § 1,1 Frix was entitled to seek visitation rights. No specific ruling was made on the Rimmers’ claim that visitation with Tinch was illegal.

Following a hearing, the trial court entered its order on Tinch’s motion to modify visitation and Tinch and Frix’s motion for contempt, finding that Tinch would share visitation rights with Frix and those visitations would be unsupervised. Further, the trial court found the Rimmers in contempt of the Consent Order, ordered corrective actions to make up for the lost visitation, and ordered the Rimmers to pay the attorney fees of Tinch and Frix.

1. In the Rimmers’ first five enumerations of error, they allege illegalities in the underlying Consent Order. We consider these enumerations together and conclude that their challenges to the Consent Order were barred for the following reasons.

[67]*67(a) First, as stated above, no appeal was taken from the Consent Order. Pursuant to OCGA § 19-8-18 (e), “[a] decree of adoption . . . shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.” (Emphasis supplied.) See also Oni v. Oni, 323 Ga. App. 467, 470 (1) (746 SE2d 641) (2013) (challenge to adoption order time barred when made ten months after entry) (physical precedent only). Here, the adoption decree contained in the Consent Order was entered on December 7, 2009 and the Rimmers sought to challenge that order over a year later on December 14, 2010. Thus, to the extent that they challenged the adoption decree portion of the Consent Order, their challenge is barred.

(b) Second, counsel for the Rimmers prepared the Consent Order, and an order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake, or collusion of counsel and, in the absence of such a showing, a party cannot complain of a consent order. Rieffel v. Rieffel, 281 Ga. 891, 894 (3) (644 SE2d 140) (2007). The Rimmers “cannot now complain of a result [they] aided in causing, because induced error is not an appropriate basis for claiming prejudice.” (Citations and punctuation omitted.) Camp Cherokee v. Marina Lane, LLC, 316 Ga. App. 366, 371 (2) (729 SE2d 510) (2012).

(c) Finally, as asserted by Tinch and Frix below and here, the Rimmers’ challenges to the Consent Order are also precluded by res judicata and judicial estoppel.

The doctrine of res judicata seeks to bring finality to litigation. By law,

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

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749 S.E.2d 236, 324 Ga. App. 65, 2013 Fulton County D. Rep. 2993, 2013 WL 5391171, 2013 Ga. App. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rimmer-v-tinch-gactapp-2013.