Rainey v. Lange
| Decision Date | 04 June 2003 |
| Docket Number | No. A03A1372.,A03A1372. |
| Parties | RAINEY v. LANGE et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Brian M. House, Chattanooga, TN, for appellant.
Amy A. Petulla, Rossville, for appellees.
In this appeal regarding grandparent visitation rights, Charles Emerson Rainey appeals the trial court's grant of visitation rights to Thomas and Vicki Lange, his daughter's maternal grandparents, contending that the trial court erred by failing to make specific written findings of fact in support of its ruling pursuant to OCGA § 19-7-3(c). For the reasons set forth below, we vacate the trial court's order and remand with direction.
1. The record shows that Rainey and Dawn Renee Lange Ormond, Rainey's ex-wife, have one daughter. Although Ormond was originally given custody of the child, Rainey filed a petition for modification of
custody, contending that his ex-wife was not properly caring for their daughter. Pending a hearing, Rainey was given temporary custody of his daughter, and Ormond's parents, the Langes, were allowed to intervene in the custody action. At the subsequent hearing, the trial court accepted a settlement agreement regarding custody submitted by Rainey and Ormond. In addition, the trial court granted visitation rights to the Langes. Rainey now appeals the grant of visitation to his daughter's maternal grandparents.
The statutory provision authorizing grandparent visitation rights is OCGA § 19-7-3(c), which states:
[T]he court may grant any grandparent of the child reasonable visitation rights if the court finds 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. The court shall make specific written findings of fact in support of its ruling. There shall be no presumption in favor of visitation by any grandparent.
See also Binkley v. Flatt.1 "OCGA § 19-7-3(c) does not require a finding that a parent is unfit, but simply that `the health or welfare of the child would be harmed unless such visitation is granted.'" Rogers v. Barnett.2 "Absent clear and convincing evidence that the child [will] experience actual physical, mental, or emotional harm if visitation was denied, the trial court cannot justify mandating grandparent visitation over the objections of the parents." Hunter v. Carter.3
In this case, the trial court's order neither shows that a clear and convincing evidence standard was employed nor contains the written findings of fact required by OCGA § 19-7-3(c). The order granting grandparent visitation states only:
Given the allegations the parents have raised against each other (but without making a finding as to the truth or falsity of any of the allegations), the Court finds that enough issues have been raised that visitation with the [maternal grandparents] is in the child's best interests and will promote the child's well-being and avoid harm to the child's welfare, by way of providing a system of checks and balances.
This broad conclusory statement fails to set forth specific findings of fact supporting the trial court's grant of grandparent visitation which would "enable this Court to conduct an intelligent review of the merits" of this case. Perrin v. Stansell.4
As the trial court's order granting visitation rights to the Langes does not include the specific findings of fact required by OCGA § 19-7-3(c), we must vacate that order and remand the case so that, employing a clear and convincing evidence standard, the trial court may enter such written findings if supported by the evidence.
2. We note that Ormond and the Langes also argue that we should not consider Rainey's appeal because his initial motion for new trial was a nullity. We disagree.
The trial court originally entered its visitation order on December 4, 2002. On the same day, Rainey filed a notice of appeal and subsequently asked this Court to exercise its discretion to consider the trial court's ruling. On December 13, 2002, Rainey filed a motion for new trial with the trial court. On January 30, 2003, this Court dismissed Rainey's application for discretionary review because the trial court had not ruled on the motion for new trial. On February 3, 2003, the trial court denied Rainey's motion for new trial, and on February 6, 2003, Rainey once again filed an application with this...
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