Linn v. O'Kelley

Ingram, Justice. This case involves the custody of a child, eleven years of age, whose custody was awarded to the mother under a divorce decree entered in DeKalb Superior Court. The father sought a change in custody based on his contention that there had been a material change in circumstances of the mother, adversely affecting the child, since the divorce decree. The mother denied the contentions of the father. The trial court heard evidence from both parties and found against the father and he appeals to this court. The trial judge also conducted an off-the-record examination of the child in the presence of counsel for both parties. This was done at the request, and with the consent, of both parties. "It was the province of the trial judge to weigh the evidence and give credence to the version that appeared to him most plausible.” Strickland v. Long, 216 Ga. 717, 720 (119 SE2d 561) (1961). "The testimony of a child eleven years of age as to his choice of the person with whom he desires to live can properly be considered by the trial judge, but it is not controlling on his judgment. Raily v. Smith, 202 Ga. 185, 189 (42 SE2d 491).” Wills v. Glunts, 222 Ga. 122, 126 (149 SE2d 106) (1966). We have no way of knowing what the examination of the child in chambers by the trial judge revealed or to what extent it influenced his judgment in leaving custody with the mother. No transcript was requested or made of the child’s testimony. Under the circumstances of this case, we conclude that there is reasonable evidence to support the trial judge’s decision. See Marlow v. Tankersley, 230 Ga. 460 (197 SE2d 709) (1973), and Nodvin v. Nodvin, 235 Ga. 708 (221 SE2d 404) (1975). Judgment affirmed. All the Justices concur. Argued June 15, 1976 Decided June 29, 1976. David Crosland, for appellant. Hugh R. Powell, for appellee.