Guardianship of Carrico v. Bennett, No. 3--873A102

• Docket Nº: No. 3--873A102
• Citation: 162 Ind.App. 330, 319 N.E.2d 625
• Case Date: December 10, 1974
• Court: Court of Appeals of Indiana

Page 625

319 N.E.2d 625 162 Ind.App. 330 In the Matter of the GUARDIANSHIP OF Nara D. CARRICO, an
incompetent, by Marge Bardon, on behalf of Nara D.
Carrico, Petitioner-Appellant,
v.
Rex E. BENNETT and Mercantile National Bank of Indiana,
Respondents-Appellees. No. 3--873A102. Court of Appeals of Indiana, Third District. Dec. 10, 1974.
Rehearing Denied Jan. 17, 1975.

[162 Ind.App. 331]

Page 626

Foster, Stanish & Kouris, Hammond, for petitioner-appellant.

Richard P. Komyatte, Efron, Efron, & Komyatte, Hammond, for respondents-appellees.

Page 627

GARRARD, Judge.

Petition was filed to terminate the guardianship of Nara Carrico upon the ground that she was no longer incapable of managing her property and caring for herself. The trial court found that petitioner failed to establish the averments of the petition and entered judgment accordingly.

It is contended the decision is contrary to law and against the weight of the evidence. Appellant concedes, as petitioner, she had the burden of proof. Shafer v. Shafer (1914), 181 Ind. 244, 104 N.E. 507. The appeal is from a negative judgment, and assertion that the decision was against the weight of the evidence presents nothing for review. We will, however, determine whether the evidence was without conflict and led solely to the conclusion opposite that reached by the trial court. Gariup v. Stern (1970), 254 Ind. 563, 261 N.E.2d 578; Houser v. Bd. of Commrs. (1969), 252 Ind. 312, 247 N.E.2d 675.

The evidence was conflicting Appellant's psychiatrist testified that in her opinion the ward was competent. However, non-expert evidence is allowable on issues of insanity or incompetence. Johnson v. Culver (1888), 116 Ind. 278, 19 N.E. 129; Ramseyer v. Dennis (1918), 187 Ind. 420, 116 N.E. 417, 119 N.E. 716. Thus, opinion testimony of a medical expert does not preclude the trier of fact from considering and weighing non-expert evidence when such a matter is in issue. Klinger v. Caylor (1971), 148 Ind.App. 508, 267 N.E.2d 848; Dudley Sports Co. v. Schmitt (1972), Ind.App., 279 N.E.2d 266.

Here petitioner's case in chief consisted solely of the psychiatrist's testimony. Neither the petitioner nor the ward [162 Ind.App. 332] were called. (Both, however, appeared briefly as rebuttal witnesses.)

The ward's son, who was also guardian of the person for Mrs. Carrico, testified in opposition to the petition. While indicating that she had improved both physically and mentally since the inception of the guardianship, he testified that in his opinion she was incapable of handling her affairs. He supported this by relating that Mrs. Carrico was disoriented upon awakening in the morning, and that while she had good days, there were a number of days each month when she would be incompetent. He described numerous occasions when he could not locate her at St. Ann's Home, although she was not signed out. He described her memory failure and related her accusations that he was in collusion with the bank, the judge and respondent's counsel to steal her funds. He related her assertion that all private telephones were being tapped by the federal government. In addition, when Mrs. Carrico was called as a rebuttal witness, she was questioned by the court. She first asserted the guardianship was instituted by her son so he could get her property. She then conceded that he did not have her money, but maintained she had meant her furniture and clothing. When the court inquired why her son would want her clothing, she stated he had instituted the guardianship because he did not want to be bothered with her.

While such evidence may be susceptible to more than one ultimate inference, we cannot say it led solely to the conclusion that Mrs. Carrico was capable of managing her affairs and caring for herself. Indeed there was no direct evidence, other than the psychiatrist's opinion, to establish that she could. Accordingly, the decision may not be overturned on this ground.

Furthermore, as the evidence does not lead solely to the conclusion that Mrs. Carrico was capable of managing her property and caring for herself (despite her age or infirmity), we need not reach appellant's argument that mere old age or physical infirmity cannot sustain the guardianship. Harvey [162 Ind.App. 333] v. Rodger (1924), 84 Ind.App. 409, 143 N.E. 8; Perry v. Perry (1940), 108 Ind.App. 93, 27 N.E.2d 133.

It is also urged that the trial court erroneously required appellant to negative

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the reasons for the original finding of incompetence rather than simply prove the ward competent at the time of hearing. Certainly, the latter proof is appropriate. Cochran v. Amsden (1885), 104 Ind. 282, 3 N.E. 934. However, from the record it also appears to have been the one applied, since on this issue the trial court advised petitioner she had the burden of establishing the relevant allegations of her petition, and the court expressly found that the averments of the petition had not been sustained. ¹

Appellant next complains of five evidentiary rulings made by the court.

Appellant's psychiatrist testified that she felt her own opinion was reinforced by a letter she had read from a Dr. Husted addressed to an attorney. Dr. Husted did not appear as a witness. Appellant attempted to introduce the letter in evidence. The exclusion of the letter as hearsay was proper.

Appellant objected to cross examination of the psychiatrist regarding the...