Carroll v. Carroll, A10A2332

*All courts mentioned are at the state level.

• Following a final hearing in a custody modification action, the trial court awarded primary physical custody of the three minor children to their father.
• The mother appealed, claiming the trial court committed harmful error in reviewing testimony previously submitted by affidavit.  The parties submitted affidavits in anticipation of a temporary hearing which was subsequently canceled.
• The mother claims that the trial court improperly considered the affidavits, which were not admitted into evidence at the final hearing, for purposes of its final order.
• The Court of Appeals agreed that the affidavits submitted in anticipation of a temporary hearing did not upon their filing constitute evidence for purposes of the final hearing.
• The Court of Appeals also agreed that the trial court was required to rule on the evidence presented at the final hearing, and not on knowledge gleaned from affidavits that were not admitted into evidence.
• Despite the mother’s arguments, however, she failed to show that the trial court used the affidavits for an improper purpose.  She failed to show that the trial court either considered the affidavits to be evidence or relied on them in reaching its final decision.  Further, she failed to show that the testimony of the numerous witnesses presented at the final hearing was insufficient to support the trial court’s findings.
• As such, the Court of Appeals did not find error with the trial court’s decision.  Specifically, the Court of Appeals explained that it would not assume that the judge considered anything outside of the evidence in rendering his judgment.  That the trial court prepared for the hearing by reading the case file is not error.

Attorneys:

• W. Edward Meeks, Jr., for appellant
• Joshua C. Bell for appellee

Trial Court:

Grady Superior Court; Judge A. Wallace Cato