McAlister v. Clifton

• Decision Date: 19 April 2022
• Docket Number: S22A0144
• Parties: ERIN C. McALISTER v. WENDI L. CLIFTON.
• Court: Georgia Supreme Court

ERIN C. McALISTER v. WENDI L. CLIFTON.

No. S22A0144

Supreme Court of Georgia

April 19, 2022

The Honorable Supreme Court met pursuant to adjournment. The following order was passed:

On January 11, 2022, the Motion for Reconsideration filed in this case was granted and the opinion of this Court issued on December 14, 2021, was vacated and withdrawn from the files. The attached opinion is substituted therefore. Any motion for reconsideration of the substitute opinion must be filed within 10 days of the date of this order. See Supreme Court Rule 13.

All the Justices concur, except Boggs, P. J., and McMillian, J disqualified. Bethel, J., not participating.

Ellington, Justice.

Erin McAlister appeals from trial court orders awarding Wendi Clifton, McAlister's former domestic partner, visitation rights to McAlister's adopted daughter, Catherine pursuant to the equitable caregiver statute, OCGA § 19-7-3.1.^[1] McAlister contends the trial court erred in declaring the statute "constitutional, both facially and as applied to [Clifton]," as well as finding that Clifton had standing to seek visitation rights as Catherine's equitable caregiver. McAlister also contends that the trial court erred in denying her counterclaim for breach of a settlement agreement that the parties signed when they separated. Because Catherine is now an adult, having turned 18 years old prior to the docketing of this appeal, McAlister's challenge to the award of visitation rights is moot.^[2] Therefore, we vacate those portions of the court's orders addressing the constitutionality of the equitable caregiver statute, as well as the award of visitation, and we remand the case to the trial court with direction to dismiss Clifton's claim for visitation which was based on the statute. However, because the record supports the trial court's finding that McAlister failed to carry her burden of proving any damages from Clifton's alleged breach of the settlement agreement, the court did not err in denying McAlister's counterclaim. Consequently, we affirm that portion of the court's judgment.

The record shows that, on January 25, 2021, the trial court entered an order denying McAlister's motion to dismiss Clifton's petition for visitation with Catherine, rejecting McAlister's challenge to the constitutionality of OCGA § 19-7-3.1.^[3] Also on January 25, the trial court issued its "Final Order on Equitable Caregiver," in which it found that Clifton had satisfied the statute's criteria for standing as an equitable caregiver, and it awarded her "parenting time" with Catherine. The orders did not grant Clifton any parental rights beyond visitation. McAlister appealed to the Court of Appeals, which transferred the case to this Court.^[4] Thereafter, we directed the parties to file supplemental briefs regarding whether this appeal is moot. See In the Interest of M. F., 305 Ga. 820 (828 S.E.2d 350) (2019) ("Mootness is an issue of jurisdiction and thus must be determined before a court addresses the merits of a claim." (citation and punctuation omitted)); Byrd v. Goodman, 192 Ga. 466, 466 (15 S.E.2d 619) (1941) ("[I]t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction." (citation and punctuation omitted)).

1. Clifton contends that McAlister's challenge to the constitutionality of OCGA § 19-7-3.1 is moot because Catherine is now legally an adult and no longer in the custody or control of her parent. We agree.

When the resolution of a case would be tantamount to the determination of an abstract question not arising upon existing facts or rights, then that case is moot. When the remedy sought in litigation no longer benefits the party seeking it, the case is moot and must be dismissed.

(Citations and punctuation omitted.) M. F., 305 Ga. at 820. In a case factually similar to this case, the Court of Appeals explained why it was required to dismiss as moot an appeal from a custody order:

The child was 17 years old when the [trial] court granted custody to Harvey and turned 18 years of age shortly after the appeal was docketed. Because at 18 years the child has reached the age of legal majority and is no longer subject to the custody order, this issue is moot. OCGA § 39-1-1 (a) (age of legal majority is 18 years); OCGA § 19-7-1 (a) (at age 18 child no longer in the custody or control of either parent). To the extent Francis-Rolle claims the custody award was error, the appeal is dismissed.

Francis-Rolle v. Harvey, 309 Ga.App. 491, 492 (1) (710 S.E.2d 659) (2011).^[5]

McAlister argues that her challenge is not moot because Clifton's "status" as an equitable caregiver continues beyond Catherine's eighteenth birthday, which presents a question concerning Clifton's existing parental rights. McAlister has cited no law in support of this argument, and the trial court made no finding in either order that Clifton had continuing parental rights as an equitable caregiver. Rather, in its final order, the court found that Clifton had "standing" to seek "parenting time" as an equitable caregiver because she had satisfied the statutory criteria for such an award of visitation. The court did not award Clifton any rights beyond visitation, and the visitation award has since terminated by operation of law. See Francis-Rolle, 309 Ga.App. at 492 (1). Hence, the portion of the trial court's final order awarding visitation is a nullity. McAlister also argues that Clifton is using the fact that she was previously awarded visitation as an equitable caregiver to gain an advantage in a guardianship matter involving her daughter in the Probate Court of DeKalb County.^[6] However, McAlister has not shown that the trial court's final order granting Clifton parenting time with Catherine would have any collateral consequence in the pending guardianship matter.^[7] See In the Interest of I. S., 278 Ga. 859, 862 (607 S.E.2d 546) (2005) (a matter does not become moot if adverse collateral consequences continue to plague the affected party).

McAlister also argues that this Court has recognized certain public policy "exceptions" to the doctrine of mootness and that we should apply those exceptions to hold that her challenge to the constitutionality of the statute is not moot. To be clear, although we have sometimes used the word, there are no true "exceptions" to the mootness doctrine, which is a jurisdictional doctrine rooted in the common law and the separation of powers; rather, "we have recognized circumstances where cases that may appear to be moot are nonetheless viable due to the particular nature of the litigated issue." M. F., 305 Ga. at 821. As we have explained, "a case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights." (Citation and punctuation omitted.) Collins v. Lombard Corp., 270 Ga. 120, 121 (1) (508 S.E.2d 653) (1998).

So, when a case contains an issue that is capable of repetition yet evades review, the issue is not moot "because a decision in such a case would be based on existing facts or rights which affect, if not the immediate parties, an existing class of sufferers." (Citation and punctuation omitted.) Id. at 121-122 (1). Contrary to McAlister's argument, this case is not one that affects an existing class of persons suffering harm as a result of the statute. 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. 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, just as the trial court did in this case. See id. at 122 (2) (the underlying issue of the constitutionality of a statute imposing a tax could be raised by other parties in a suit for a refund).

McAlister also argues that this case presents an issue of such significance that the public interest demands that we address the constitutionality of the statute immediately. She relies on Hopkins v. Hamby Corp., 273 Ga. 19 (538 S.E.2d 37) (2000), in which we noted that

[o]ther states have adopted a rule that permits them to decide an appeal in a moot case where the case contains an issue of significant public concern or an issue that might avert future litigation. The courts find justification for deciding issues raised in moot cases when (1) the public interest will be hurt if the question is not immediately decided; (2) the matter involved is likely to recur frequently; (3) it involves a duty of government or government's relationship with its citizens; and (4) the same difficulty that prevented the appeal from being heard in time is likely to again prevent a decision.

(Footnotes omitted.) Id. Assuming Hopkins is authority for a "significant public concern" rationale that could support the continuing viability of McAlister's constitutional challenge to the equitable caregiver statute, ^[8] McAlister has failed to show that the challenge presented satisfies the criteria set forth in Hopkins - especially when trial courts are able to address the constitutionality of the statute when a petition is filed pursuant to it. See id.

Finally,

[w]hen a civil case becomes moot pending appellate review due to happenstance - circumstances not attributable to the parties, like the mere passage of time - rather than by settlement of the dispute or voluntary cessation of the challenged conduct by the prevailing party below, the better practice is to vacate the judgment under review and remand with direction that the case be dismissed by the trial court.

(Citations omitted.) Babies Right Start, Inc. v. Georgia Dep't of Pub. H...