CourtListener 10680376

Full text

318 Ga. 573
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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.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: March 5, 2024

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

2
grandparent visitation statute unconstitutional. Appellant argued

that the grandparent visitation statute was unconstitutional

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.

3
On December 5, 2022, the court entered an order summarily

denying Appellant’s motion to declare OCGA § 19-7-3

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] on 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

4
Award of OCGA § 19-7-3 Attorney’s Fees and Expenses.”1 Appellant

argued that attorney fees and expenses were warranted under

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

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.
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,” id. § 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,” id. § 9-15-14 (b).
5
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

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, subsections (1) and (2) of OCGA § 19-7-3 (c) provide:

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)

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
(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
(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

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, 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

8
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

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

9
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

asserts only abstract uncertainty over unspecified parenting