Conrad v. Atkins

DARDEN, Judge,

dissenting.

I would respectfully dissent from the majority’s conclusion that the trial court erred when it did not enter an order granting Brett’s request for his visitation and contact with Patrick.

I begin by summarizing the perspective from which we review the appeal of that *889 decision. Neither party requested, and the trial court did not make sua sponte, findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A) with respect to Brett’s motion seeking an order of visitation. “In the absence of special findings, we review a trial court decision as a general judgment and, without reweighing evidence or considering witness credibility, affirm if sustainable upon any theory consistent with the evidence.” Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind.1997); see also Brandeis Machinery & Supply Co., LLC v. Capitol Crane Rental, Inc., 765 N.E.2d 173, 176 (Ind.Ct.App. 2002); In re Estate of Highfill, 839 N.E.2d 218, 224 (Ind.Ct.App.2005). Moreover, “due regard must be given the trial court’s opportunity to judge the credibility of witnesses, and the judgment should not be set aside unless clearly erroneous.” Brandéis, 765 N.E.2d at 176 .

Further, as we have held, when reviewing the trial court’s judgment in a guardianship proceeding, “we consider only the evidence most favorable to the prevailing party, and we neither reweigh the evidence nor reassess witness credibility.” Chavis v. Patton, 683 N.E.2d 253, 255 (Ind.Ct.App.1997). I view the trial court’s decision with respect to an order that the Atkinses, as co-guardians, allow Brett’s visitation and contact with Patrick to be akin to that of a custody determination or modification. In such determinations, we also apply an abuse of discretion standard. We define such an abuse of discretion as occurring when the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Higginbotham v. Higginbotham, 822 N.E.2d 609, 611 (Ind.Ct.App.2004); Pawlik v. Pawlik, 823 N.E.2d 328, 330 (Ind.Ct. App.2005); Stratton v. Stratton, 834 N.E.2d 1146, 1151 (Ind.Ct.App.2005). In the appeal of such determinations, we have repeatedly stated that we will not substitute our judgment for that of the trial court unless no evidence or legitimate inferences support its judgment, id., and noted that “the trial court is in a better position than we are to render a decision ... because [it] can observe the parties’ conduct and demeanor and listen to their testimony.” Pawlik, 823 N.E.2d at 330 , Stratton, 834 N.E.2d at 1151 . Id. We have further emphasized that we will not reweigh the evidence, judge witness credibility, or substitute our judgment for that of the trial court. Higginbotham, 822 N.E.2d at 611 , Pawlik, 823 N.E.2d at 330 , Stratton, 834 N.E.2d at 1151 ; see also In re Adoption of T.L. W., 835 N.E.2d 598, 600 (Ind.Ct.App.2005) (On appeal of order denying motion to enforce visitation, “we will not reweigh the evidence or substitute our judgment for that of the trial court.”).

The majority concedes that Dr. Jonathon Mangold, a psychologist recognized by the majority as an expert, testified that he had personally met with Patrick, and that visitation with Brett might not be positive for Patrick from a psychological standpoint. Further, when Dr. Mangold opined that no visitation between Patrick and Brett should be ordered, he testified that he had reached this conclusion after having heard all of the testimony at trial. Therefore, the trial court’s order denying the motion to order visitation was supported by evidence before it, and we should affirm. See Perdue Farms, Inc., 683 N.E.2d at 240; Higginbotham, 822 N.E.2d at 611 ; Pawlik , 823 at 330; Stratton, 834 N.E.2d at 1151 . When the majority concludes that “the overwhelming wealth of evidence in the record, as well as common sense” supports the determination that visitation should be ordered, Op. at 886, I believe that it has impermissibly substituted its judgment for that of the trial court. Id.; T.L. W., 835 N.E.2d at 600 .

*890 I further note that the majority relies upon Indiana Code section 29-3-5-3(b) to declare that the trial court was required to enter orders to encourage development of Patrick’s self-improvement, self reliance and independence, and to contribute to his living as normal a life as possible under the circumstances. Op. at 886. I can agree that such would indeed by a laudable goal of a guardianship order, but I cannot agree that this is what the statute requires. According to the statute,

if it is alleged and the court finds that the welfare of an incapacitated person would be best served by limiting the scope of the guardianship, the court shall make the appointive or other orders under this chapter to

(1) encourage development of the incapacitated person’s self-improvement, self-reliance, and independence; and

(2) contribute to the incapacitated person’s living as normal a life as that persons condition and circumstances permit without psychological or physical harm to the incapacitated person.

I.C. § 29 — 3—5—3(b) (emphasis added). Here, the trial court did not find that Patrick’s welfare would be best served by limiting the scope of the Atkinses’ co-guardianship. The majority opinion necessarily implies such a finding by the trial court. To such a conclusion I would also respectfully dissent and suggest that the majority has impermissibly reweighed the evidence and assessed witness credibility in violation of our long accepted standard of review.