Carroll v. Carroll

In a custody modification case, the trial court did not err by reading a case file containing an affidavit not admitted into evidence, since appellant failed to show that the trial court considered the information in the affidavit in reaching its decision.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Following a final hearing in this custody modification action, the trial court awarded primary physical custody of the three minor children to their father, Shane Carroll. The children’s mother, Heather Carroll, appeals claiming that the trial court committed harmful error in reviewing testimony previously submitted by affidavit. We find no error because the mother does not show that the trial court considered the affidavits as evidence for purpose of the final hearing or used the knowledge derived therefrom to reach its decision in the matter. The mother asserts, and the father does not dispute, that the parties submitted affidavits in anticipation of a temporary hearing which was subsequently cancelled by the agreement of the parties. The mother shows that the trial court reviewed the affidavit testimony before the final hearing. She 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.

We agree with the mother that the affidavits, although properly submitted in anticipation of a temporary custody hearing, did not upon their filing constitute evidence for purposes of the final hearing.1 We also agree with the mother 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.2

Carroll v. Carroll

In a custody modification case, the trial court did not err by reading a case file containing an affidavit not admitted into evidence, since appellant failed to show that the trial court considered the information in the affidavit in reaching its decision.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report