Motes v. Stanton

Supreme Court of Georgia

Motes v. Stanton

239 S.E.2d 26, 239 Ga. 842, 1977 Ga. LEXIS 1350

CourtSupreme Court of Georgia

DecidedOctober 20, 1977

Docket32311

StatusPublished

This text of 239 S.E.2d 26 (Motes v. Stanton) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Motes v. Stanton, 239 S.E.2d 26, 239 Ga. 842, 1977 Ga. LEXIS 1350 (Ga. 1977).

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Opinion

Marshall, Justice.

This is the second appearance of this case before this court. The earlier decision of Motes v. Stanton, 237 Ga. 440 (228 SE2d 831) (1976), reversed the judgment of the trial court, denying the appellant mother’s petition for a change in custody of her minor child, for failure to make the required findings of fact and conclusions of law in the case.

Upon remand, the trial court entered findings of fact finding that there had been no material change of circumstances substantially affecting the interest and welfare of the child occurring since the prior award. Accordingly, the trial court reinstated the original order as to custody and visitation rights, from which order the mother appeals. Held:

We have reviewed the record and found that, while there was evidence which might have authorized a change in custody, there was, nevertheless, " 'reasonable evidence’ in the record to support the decision made by the habeas corpus court,” in which situation "the decision of the habeas corpus court must prevail as a final judgment .." Robinson v. Ashmore, 232 Ga. 498, 500, 501 (207 SE 2d 484) (1974).

The trial court’s statement in the order, that the change of visitation rights in the order previously appealed from was "a compromised agreement made by the parties’ attorneys which this court approved,” the truth of which is now challenged by the appellant, was harmless, if error, since the provisions of the order here appealed from are different from those of the previous order.

Nor is there harmful error in the trial court’s statement in the order, that his findings of fact were made after,-inter alia, "observing documentary evidence.” Even if the trial judge considered documentary evidence which was not in the record, as the appellant contends, there was sufficient reasonable evidence in the record, exclusive of any other evidence, to authorize the order and to render the consideration of other evidence harmless error. Moreover, the likelihood is that no such extraneous [843]*843evidence was considered, and that this was a mere error in form in the order. We will presume, absent a showing to the contrary, that the judge properly performed his duty of not considering evidence outside of the record.

Argued May 11, 1977 Decided October 20, 1977. Raiford, Hills & McKeithen, Tyler Dixon, for appellant. Crudup & Howell, E. A. Crudup, Jr., for appellee.

Judgment affirmed.

All the Justices concur, except Hill, J., who concurs in the judgment only.

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Marshall, Justice.

This is the second appearance of this case before this court. The earlier decision of Motes v. Stanton, 237 Ga. 440 (228 SE2d 831) (1976), reversed the judgment of the trial court, denying the appellant mother’s petition for a change in custody of her minor child, for failure to make the required findings of fact and conclusions of law in the case.

Upon remand, the trial court entered findings of fact finding that there had been no material change of circumstances substantially affecting the interest and welfare of the child occurring since the prior award. Accordingly, the trial court reinstated the original order as to custody and visitation rights, from which order the mother appeals. Held:

We have reviewed the record and found that, while there was evidence which might have authorized a change in custody, there was, nevertheless, " 'reasonable evidence’ in the record to support the decision made by the habeas corpus court,” in which situation "the decision of the habeas corpus court must prevail as a final judgment .." Robinson v. Ashmore, 232 Ga. 498, 500, 501 (207 SE 2d 484) (1974).

The trial court’s statement in the order, that the change of visitation rights in the order previously appealed from was "a compromised agreement made by the parties’ attorneys which this court approved,” the truth of which is now challenged by the appellant, was harmless, if error, since the provisions of the order here appealed from are different from those of the previous order.

Nor is there harmful error in the trial court’s statement in the order, that his findings of fact were made after,-inter alia, "observing documentary evidence.” Even if the trial judge considered documentary evidence which was not in the record, as the appellant contends, there was sufficient reasonable evidence in the record, exclusive of any other evidence, to authorize the order and to render the consideration of other evidence harmless error. Moreover, the likelihood is that no such extraneous [843]*843evidence was considered, and that this was a mere error in form in the order. We will presume, absent a showing to the contrary, that the judge properly performed his duty of not considering evidence outside of the record.

Argued May 11, 1977 Decided October 20, 1977. Raiford, Hills & McKeithen, Tyler Dixon, for appellant. Crudup & Howell, E. A. Crudup, Jr., for appellee.

Judgment affirmed.

All the Justices concur, except Hill, J., who concurs in the judgment only.

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239 S.E.2d 26, 239 Ga. 842, 1977 Ga. LEXIS 1350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/motes-v-stanton-ga-1977.

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