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In re Estate of Wertzer

Court of Appeals of Georgia

November 12, 2014

In re ESTATE OF WERTZER

Reconsideration denied December 10, 2014.

Guardianship. Cobb Probate Court. Before Judge Wolk.

O'Dell & O'Neal, Leslie D. O'Neal, for appellant.

Chan Law Firm, Ophelia W. Chan, for appellee.

McMILLIAN, Judge. Phipps, C. J., and Ellington, P. J., concur.

OPINION

Page 426

McMillian, Judge.

The parties to this appeal, Grace Wertzer (" mother" ) and Saul Wertzer (" father" ), are the biological parents of Sierra Leigh Wertzer, an incapacitated adult.[1] The primary issue in this appeal is whether the probate court had the authority to enter an order establishing a visitation schedule with the father, over the objection of the mother, who had been appointed Sierra's guardian and conservator. We now hold that the probate court does have such authority.

Page 427

The record and hearing transcripts show that the mother and father were divorced in 2004. Pursuant to the terms of the parties' settlement agreement, the mother was granted sole legal and physical custody of Sierra. The father was granted limited visitation with [330 Ga.App. 295] Sierra, which was supervised for the first year following the divorce.[2] This plan apparently remained unchanged until the present proceedings were instituted.

In April 2013, the father filed a petition to modify visitation in the superior court. In response, the mother moved to suspend the father's visitation and for attorney fees. In May 2013, the mother filed a Petition for Appointment of a Guardian and/or Conservator in the Cobb County Probate Court in anticipation of Sierra's 18th birthday.[3] The father subsequently moved to intervene and for additional relief, seeking to continue and extend the visitation he had been granted in the divorce proceedings to include overnight visits and a week-long visitation period in the summer. Additionally, the father requested that the mother notify him of any changes to Sierra's medical condition, maintenance medications, physicians, and residential status. Alternatively, the father sought to be appointed co-guardian along with the mother.

On July 29, 2013, the probate court granted the father's request to intervene in the guardianship proceedings, but reserved ruling on the other relief requested in his motion. Two days later, the probate court granted the mother's petition for guardianship/conservatorship, but once again reserved ruling on the other relief requested in the father's motion to intervene. Subsequently, the mother filed a petition in the probate court to dismiss the father's request for visitation, contending that the probate court lacked authority to " force" Sierra to visit with her father.

The probate court denied the mother's motion to dismiss the father's petition on October 30, 2013.[4] Sierra turned 18 on November 20, 2013, and on December 3, 2013, the probate court issued letters of guardianship and conservatorship to the mother pursuant to its earlier order granting the petition for guardianship.

Following a multi-day hearing which commenced on December 9, 2013, the probate court issued an order granting the father supervised visitation with Sierra during the third weekend of each month. The probate court slightly extended the hours of the Saturday visits, but denied the father's request for overnight visitation and for an [330 Ga.App. 296] extended visitation period during the summer. The probate court noted that the mother and her counsel did not appear to have any objections to the father being informed of changes to Sierra's medical condition, medications, or residence, and additionally ordered, consistent with the parties' prior divorce settlement agreement, that the parents confer with each other on all important matters pertaining to Sierra's health, welfare, and education, and that each parent notify the other in the event ...


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