Scott v. Scott., A11A1206.

• Citation: 716 S.E.2d 809,11 FCDR 2987,311 Ga.App. 726
• Decision Date: 20 September 2011
• Docket Number: No. A11A1206.,A11A1206.
• Parties: SCOTT et al.v.SCOTT.
• Court: United States Court of Appeals (Georgia)

311 Ga.App. 726

716 S.E.2d 809

11 FCDR 2987

SCOTT et al.

v.SCOTT.

No. A11A1206.

Court of Appeals of Georgia.

Sept. 20, 2011.

James S. Altman, Atlanta, for appellants.Larry Allen Ballew, Cumming, for appellee.SMITH, Presiding Judge.

John and Josephine Scott appeal from the trial court's order dismissing their petition seeking custody of their two minor granddaughters. We reverse because the trial court erroneously concluded that the Scotts' petition failed to state a claim.

1. On appeal, we review the trial court's grant of a motion to dismiss de novo. South Point Retail Partners v. North American Properties, 304 Ga.App. 419, 420, 696 S.E.2d 136 (2010).

A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.

(Citations and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525, 525–526(1), 668 S.E.2d 723 (2008). In this case, the Scotts' custody petition, filed on February 1, 2010, in Fulton County Superior Court, asserts in relevant part:

...

3.

On or about March 4, 2008, the father of the minor children, Ralph Clifton Scott, was brutally murdered, found shot in the parties' marital residence by the children's mother, Lona Lee Scott.

4.

The Defendant [Lona Lee Scott] is on trial for the murder in DeKalb County beginning Monday, February 1, 2010.

5.

Plaintiffs have standing to receive custody under OCGA § 19–7–1(b.1) and [are] authorized to seek custody by OCGA § 19–9–2.

6.

Plaintiffs are fit and proper parties to receive custody.

...

8.

Plaintiffs are the only fit and proper parties to this litigation into which custody may be vested at this time and it is necessary for the Court to make an award of custody so that the children can be cared for pending further proceedings before this Court.

In their prayer for relief, the petitioners asked the trial court to “[f]ind the Defendant to be unfit as a parent.”

In her answer filed on March 31, 2010, Lona Scott filed a one-sentence motion to dismiss based upon “failure to state a claim” and insufficient service. On May 3, 2010, the Scotts filed a written response to the motion in which they asserted that they filed the custody petition because the mother was “facing her initial trial for the murder of their son. Had Lona Scott been convicted, the children would be without parental care and control.”

It is undisputed that the trial resulted in a hung jury. The Scotts argued that the trial court could hear evidence of the mother's unfitness even in the absence of a conviction and asserted there was no dispute that the mother had killed their son. In a later brief, they stated that the mother testified in her criminal trial that one of the children was present in the home when she shot and killed her husband.

The mother responded that the Scotts failed “to make any sworn allegation of unfitness, either under the statute or the case law nor do they describe how the health or welfare of the children is in jeopardy. The only allegation in the complaint is that Lona Scott killed Cliff Scott and if she were tried, convicted, and imprisoned, the girls would be without a parent.”

In its order granting the mother's motion to dismiss, the trial court concluded:

[T]o succeed on their claim petitioners must show by clear and convincing evidence that parental custody would harm the child and that the award of custody to the parent is not in the best interest of the child. The harm which must be shown is physical harm or significant, long-term emotional harm. The current petition does not include any allegations that continued parental custody would harm the children at issue, much less any allegations that any such harm would be sufficiently significant to authorize the requested change in custody.... The only reference to the respondent's fitness as a parent is a request in the prayer for relief for the Court to find that the respondent is unfit as a parent. These allegations are not sufficient to support a claim to change custody from a parent to a grandparent. In addition, the length of time that has passed while the respondent's motion to dismiss for failure to state a claim has been pending, together with the fact that the petition has not been amended to address the shortcomings identified in the motion, convince the Court that no provable set of facts exists which would entitle the petitioners to the relief requested.

The trial court erred by concluding the Scotts were required to allege additional facts to survive the mother's motion to dismiss. “Complaints do not have to allege facts sufficient to set forth a cause of action and are no longer to be construed most strongly against the pleader.[Cit.]” Richter v. D & M Assoc., 228 Ga. 599, 604(1), 187 S.E.2d 253 (1972). And it is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. Christner v. Eason, 146 Ga.App. 139, 140, 245 S.E.2d 489 (1978); Hill v. Lariscy, 118 Ga.App. 699, 699–700, 165 S.E.2d 315 (1968). “If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” (Citations and punctuation omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Fowler, 177 Ga.App. 834, 341 S.E.2d 491 (1986).

In this case, the Scotts' custody petition gave fair notice that they sought custody of the child under OCGA §§ 19–7–1(b.1) and 19–9–2 based upon the mother's alleged murder of the father. These allegations are sufficient to survive a motion to dismiss. See In the Interest of J.L.M., 204 Ga.App. 46, 47–48(1), 418 S.E.2d 415 (1992) (murder of one parent by another can be considered as evidence of parental unfitness).¹

2. In her brief, the mother asserts we should affirm the trial court's dismissal of the custody petition based upon a right for any reason analysis. See Santora v. American Combustion, 225 Ga.App. 771, 772(1)(a), 485 S.E.2d 34 (1997) (“judgment right for any reason will be affirmed”). She claims that the doctrines of collateral estoppel and res judicata apply to bar the Scotts' petition for custody because a previous court denied their request for visitation. The record shows that she raised these defenses in her answer and attached the previous order denying visitation as an exhibit to her answer. Because the parties briefed these issues and the trial court ruled upon them, we will address them on appeal. See generally City of Gainesville v. Dodd, 275 Ga. 834, 838–839, 573 S.E.2d 369 (2002).

(a) The trial court properly determined that collateral estoppel does not bar the Scotts' petition for custody. “Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.” (Citation and punctuation omitted.) Matherly v. Kinney, 227 Ga.App. 302, 304(2), 489 S.E.2d 89 (1997). “Collateral estoppel ... also precludes issues that necessarily had to be decided in order for the previous judgment to have been rendered.” (Citations and footnote omitted.) In re T.M.G., 275 Ga. 543, 544, 570 S.E.2d 327 (2002).

With regard to grandparent visitation, OCGA § 19–7–3(c) provides in relevant part:

... [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 rulings. There shall be no presumption in favor of visitation by any grandparent....

The record shows that the Scotts filed a petition for visitation in DeKalb County Superior Court in April 2008. On May 12, 2009, the DeKalb court issued a six-page order in which it concluded that it could not mandate grandparent visitation over the mother's objection unless clear and convincing evidence demonstrated that the children would “experience actual physical, mental, or emotional harm if visitation was denied.” (Citation, punctuation and footnote omitted.) See Rainey v. Lange, 261 Ga.App. 491, 491–492(1), 583 S.E.2d 163 (2003). After...