In the Supreme Court of Georgia



                                             Decided:     January 20, 2015


                        S14F1887. GROVE v. GROVE.


      BENHAM, Justice.

      Appellant is the Wife in this divorce case. At the final hearing in the case,

the parties, through counsel, indicated they had reached an agreement to all

terms of the divorce, property settlement, and child custody issues, and that the

only matter the parties were submitting to the court for final resolution was the

issue of appellee Husband’s visitation with respect to the two-year old child of

the marriage. The parties agreed that Wife would have primary physical custody

of the child, and the failure to arrive at an agreement about visitation arose from

the fact that Husband had substance abuse problems and was, at that time, living

in a residential rehabilitation facility for treatment. Further, the record reflects

Wife had concerns about Husband’s ability to ensure the child’s safety during

his visits with her. Counsel for Wife stated that he understood the paternal

grandparents would like visitation with the child, and informed the trial judge
that Wife had several concerns.

      First, Wife was concerned about whether the grandparents would be able

to prevent improper conduct by Husband while the child was visiting the

grandparents. Second, Wife had been permitting the paternal grandparents to

visit the child but complained that she needed greater advance notice of their

visits than they were currently providing her. Third, Wife expressed concern

about the grandparents’ taking the child to visit Husband at his drug

rehabilitation facility. Finally, Wife wanted the unpaid child support to be paid

in full before either Husband or the paternal grandparents were permitted

visitation. All of the issues raised by Wife were addressed at the hearing,

including a stipulation that Husband’s visitation with the child must be

supervised by a third party. The judge then asked if the parties would be able

to draw up a parenting plan that addressed the issues resolved at the hearing, and

counsel for both parents answered affirmatively. A parenting plan that awarded

visitation rights to the paternal grandparents was signed by counsel to each

party, and it was attached to and became a part of the final judgment and decree

of divorce. The terms of the final judgment also contained an award of

visitation to the grandparents. Both the parenting plan and the final judgment

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provide that the paternal grandparents may exercise visitation with the child as

a substitute for the father. The signature of Wife’s counsel indicates he

approved the final judgment as to form. On appeal, Wife challenges the order’s

grant of visitation rights to the paternal grandparents.

      1. OCGA § 19-7-3 (c) grants to grandparents of a minor child the right

to seek visitation rights “[u]pon the filing of an original action or upon

intervention in an existing proceeding” such as a divorce action where the

custody of the child is at issue. From the transcript of the hearing on the

visitation issue, it appears the parties had already agreed and stipulated that the

mother would have full custody. They further stipulated that all the father’s

visits would be supervised by a third party. Wife claims the court, sua sponte,

inserted into the final decree the provision that the grandparents could exercise

visitation with the minor child as a substitute for the father’s supervised

visitation schedule. Wife complains that this order permits the grandparents to

take Husband’s visitation turns even on major holidays such as Christmas and

Thanksgiving. Wife argues the trial court erred by granting these visitation

rights to the paternal grandparents even though they did not file a petition to

intervene in the divorce action.

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      Wife waived this ground for appeal, however, by not raising the issue

below. See Francis v. Francis, 279 Ga. 248, 248-249 (611 SE2d 45) (2005).

The only objection to the grandparents’ visitation raised at the hearing at which

visitation was addressed was Wife’s request for timely advance notice by the

grandparents before scheduling a visit. This concern was resolved by discussion

at the hearing and reflected in the parenting plan adopted by the trial court,

which grants the grandparents the right to exercise visitation with the minor

child as a substitute for the Husband’s visitation schedule, and stipulates the

Husband is required to give no less than forty-eight hours’ advance notice of his

intent to exercise his visitation privileges. The hearing transcript reflects that

Wife and her counsel, as well as the paternal grandparents, were present at the

hearing, yet Wife made no objection to granting the grandparents visitation

rights on the ground that they had failed to intervene in the action, or any other

ground.

      Pursuant to OCGA § 9-11-15 (b): “When issues not raised by the

pleadings are tried by express or implied consent of the parties, they shall be

treated in all respects as if they had been raised in the pleadings.” Here, Wife

effectively acquiesced and consented to the grandparents’ participation in the

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proceeding as well as the court’s authority to make an award of visitation rights

to them even though they did not file a pleading to intervene in the action. See

Rude v. Rude, 241 Ga. 454 (1) (246 SE2d 311) (1978) (applying this rule of the

Civil Practice Act to hold, in a divorce proceeding, that the husband’s failure to

raise the objection that the wife’s pleadings did not include a specific prayer for

attorney fees, while permitting the court to litigate the matter, served as consent

to the court’s authority to make such an award).

      2. OCGA § 19-7-3 (c) further provides that a grant of visitation rights to

any grandparent may be made “if the court finds the health or welfare of the

child would be harmed unless such visitation is granted, and if the best interest

of the child would be served by such visitation. The court shall make specific

written findings of fact in support of its rulings.” Wife asserts the final

judgment should be reversed for abuse of discretion because it grants visitation

rights to the paternal grandparents without making the required written findings

of fact. Wife contends the facts of this case are nearly indistinguishable from

those in Hunter v. Carter, 226 Ga. App. 251 (485 SE2d 827) (1997), in which

the Court of Appeals reversed the grant of grandparent visitation rights because

the evidence did not support the trial court’s finding that the minor child would

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be harmed if the grandparents were denied visitation rights. In fact, this case is

highly distinguishable from Hunter in that here, Wife, through her counsel,

approved the final judgment as to form and raised no objection to the trial

court’s failure to make findings of fact, whereas in Hunter, the child’s mother

and stepfather, who was attempting to adopt his wife’s child, opposed the

grandparents in the trial court proceeding and presented evidence that required

the reversal of the judgment granting visitation rights, along with its findings of

facts and conclusions of law. Id. at 252-253.

      Again, Wife did not preserve this issue for appeal. “After approving the

form of the order, a party cannot complain of the court’s failure to include

findings of fact and conclusions of law.” Rude v. Rude, supra, 241 Ga. at 455.

See also Gant v. Gant, 254 Ga. 239, 240 (3) (327 SE2d 723) (1985); Hargett

v. Dickey, 304 Ga. App. 387 (2) (696 SE2d 335) (2010). Having approved the

order as to form, Wife is estopped from asserting on appeal that the form of the

order was deficient because it did not include findings of fact.

      Judgment affirmed. All the Justices concur.




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