Davis v. Cicala

356 Ga.App. 873

849 S.E.2d 728

DAVIS et al.

v.CICALA.

A20A1116

Court of Appeals of Georgia.

October 5, 2020

Stephen W. Adkins Jr., Elicia Davis, Kevin McKinney, for Appellant.

Kevin Trent Moore, for Appellee.

Miller, Presiding Judge.

In this dispute involving grandparent visitation, the trial court awarded grandparent visitation to the children's paternal grandmother, Tami Cicala. Proceeding pro se on appeal, Elicia Davis and Kevin McKinney, the children's parents, contend that the trial court's grant of grandparent visitation under OCGA § 19-7-3 was not supported by the evidence and improper, and that the trial court erred in considering evidence pertaining to a child who is not involved in this case. Discerning no error on the part of the trial court in its grant of grandparent visitation, we affirm.

When reviewing an order granting grandparent visitation, we 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. We 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.

(Citation omitted.) Elmore v. Clay , 348 Ga. App. 625, 824 S.E.2d 84 (2019).

So viewed, the record shows that Elicia Davis and Kevin McKinney are the parents of two minor children: D. M., who was born in 2004, and S. M., who was born in 2009. McKinney is also the father of another minor, J. M., born during his current marriage, who is not involved in this action. The parents were divorced in 2014, and the final decree set out that they shared joint legal custody of the children and it named the mother as their primary physical custodian.

In June 2018, the mother filed a petition for modification and motion for contempt, seeking to modify the custody and parenting time arrangement that the trial court had established. Cicala filed a motion to intervene in the modification proceeding to request reasonable visitation, and the trial court held a hearing on Cicala's motion.

At the hearing, Cicala testified that the children's father lived with her for two years, during which time the children stayed with her in her home every other weekend and every other Wednesday, and that each child had a bedroom in her home. According to Cicala, during these two years she took care of the children and provided financial support for them because the father "couldn't afford to feed them" while he was working. Cicala explained that she had a continuous and constant relationship with the children "[s]ince the day they were born," and she attended their sporting events, spent traditional holidays with them, and took them on a summer vacation to Florida each year. Prior to November 2017, when Cicala was no longer allowed to visit the children, "[t]here weren't many weeks that went by that [she] didn't see [her] grandchildren." More recently, Cicala purchased food and Christmas presents and helped pay the father's water and electricity bills.

The parents both testified that Cicala had provided financial support for the children, and Cicala's husband testified to "extended periods" during which he and Cicala cared for the children and that he and Cicala paid most of the expenses while on vacations with the children. The mother affirmed that Cicala had seen the children regularly, that Cicala had been active in the children's lives, that they vacationed with Cicala every summer while she and the father were still married, and that visitation with Cicala added continuity and emotional stability to the children's lives. The mother further testified that for eight years, before she separated from the father, she took the children to Cicala's home "all the time." Indeed, the mother plainly testified that D. M. had been harmed by not seeing Cicala and that he had been crying over Cicala's health, and as a result, she allowed Cicala and her husband to see the children again. The mother testified that D. M. in particular had been concerned about Cicala, given her primary immune deficiency disease, and that reconnecting with the children with Cicala had been helpful for both children. The children's father testified that D. M. has diagnosed anxiety and that it would harm him to not see Cicala. Cicala also testified to her belief that S. M. would feel hurt if she were not permitted to visit Cicala at the same time as D. M., and that both children would benefit from visiting with her and observing firsthand "that everything's okay and that [she's] okay."

In a detailed order containing several pertinent findings, the trial court granted Cicala's motion to intervene and awarded grandparent visitation under OCGA § 19-7-3 (c) (1). The trial court determined that, by clear and convincing evidence, harm would result if the children were denied independent grandparent visitation, and that it would be in the children's best interest to have such visitation with Cicala. Specifically, the trial court found that the grandchildren and Cicala had a longstanding relationship with a historical pattern of regular visitation, and that during the marriage, separation, and divorce of the parents, Cicala provided some financial support for the children for several years, including assistance with food and other expenses. The trial court noted its consideration of the children's emotional needs at this stage of their development and determined that, given Cicala's diagnosis with primary immune deficiency disorder, time to interact with the children while she remains mobile may be limited. Cicala was granted independent visitation with the children for one day during the Christmas break from school and one week during their summer break, to coincide with the father's portion of summer parenting time. The parents filed a joint motion for reconsideration, which the trial court denied in another detailed order. Jointly, the parents appealed to the Supreme Court of Georgia, which transferred this appeal to this Court.

1. First, we reject Cicala's claim in her appellee brief that the parents’ appeal should be dismissed because the visitation issue in this case is ancillary to a divorce action and that the parents were required to file a discretionary application.

"Under Georgia law, visitation rights are a part of custody." Vines v. Vines , 292 Ga. 550, 551 (2), 739 S.E.2d 374 (2013). And "[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody" are directly appealable under OCGA § 5-6-34 (a) (11). As discussed above, years after the parties were divorced, the mother moved to modify custody, after which Cicala filed a motion to intervene. Because the parents now challenge the trial court's decision on Cicala's motion to intervene, which granted her visitation rights, this is a "direct appeal from a judgment in a child custody case." Viskup v. Viskup , 291 Ga. 103, 727 S.E.2d 97 (2012) (recognizing a father's appeal as a direct appeal where custody was adjudicated as part of the divorce decree, but the mother later filed a petition for modification of custody and the father appealed from the trial court's decision on the petition). Accordingly, we may consider this appeal.

2. In various related enumerations of error, the parents argue that the record neither meets the evidentiary threshold required by OCGA § 19-7-3 nor supports the trial court's award of grandparent visitation, that the ruling was improperly entered over the objection of both parents, and that because the grant of visitation to Cicala was not warranted, they were denied fair process. These arguments fail because the record contains sufficient evidence supporting the trial court's grant of visitation to Cicala under OCGA § 19-7-3 (c) (1), and the trial court committed no reversible error in ordering visitation.

OCGA § 19-7-3, known as the Grandparent Visitation 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." (Footnote omitted.) Luke v. Luke , 280 Ga. App. 607, 611 (3), 634 S.E.2d 439 (2006). "Where a petitioning grandparent meets this standard, a trial court may grant visitation — notwithstanding evidence or circumstances that weigh against a grant of visitation." (Footnote omitted.) Id. Under OCGA § 19-7-3 (c) (1), the court may grant a 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." OCGA § 19-7-3 (c) (1) further provides as follows:

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

(D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

"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." (Citation, punctuation, and emphasis omitted.) Keith v. Callahan , 332 Ga. App. 291, 292-293 (1), 772 S.E.2d 386 (2015).

When we view the evidence in the light most favorable to the trial...