Hancock, Matter of
| Decision Date | 09 April 1992 |
| Docket Number | No. 17699,17699 |
| Citation | 828 S.W.2d 707 |
| Parties | In the Matter of Ralph HANCOCK, An Alleged Incapacitated and Disabled Person. Jerry THORNSBERRY, Public Administrator-Respondent, v. Francis HANCOCK, Appellant. |
| Court | Missouri Court of Appeals |
Tyce S. Smith, Sr., Cary L. Hansen, Smith, Hutcheson and Dunbar, Waynesville, for public administrator-respondent.
Tweedie Fisher, Jefferson City, for appellant.
Francis Hancock, a nephew of Ralph Hancock, appeals from the trial court's order appointing Jerry Thornsberry, the Pulaski County Public Administrator, as Ralph Hancock's conservator and guardian. Appellant contends that there was insufficient evidence that Ralph Hancock was incapacitated or disabled and those findings were against the weight of the evidence. Appellant also asserts that if a conservator and guardian should be appointed, it should be appellant.
Review of this nonjury case is under Rule 73.01. Cases interpreting that rule require that this court sustain the judgment unless there was no substantial evidence to support it, unless it was against the weight of the evidence, unless it erroneously declared the law, or erroneously applied the law. Robinson v. Estate of Robinson, 768 S.W.2d 676 (Mo.App.1989). This court sets aside a judgment on the ground that it is against the weight of the evidence only when we have a firm belief that the judgment is wrong. Looney v. Estate of Eshleman, 783 S.W.2d 164, 165 (Mo.App.1990). "Weight of the evidence" means the evidence's weight in probative value, not its quantity or amount. Id.
A person petitioning for appointment as a conservator or guardian has the burden of proving incapacity or disability by clear and convincing evidence. Matter of Conservator Estate of Moehlenpah, 763 S.W.2d 249, 261 (Mo.App.1988).
On appellate review of a case tried without a jury, due regard is given the opportunity of the trial court to judge the credibility of witnesses. Rule 73.01(c)(2). On issues on which there are no findings of fact, all fact issues are deemed found in accordance with the result reached. De Paul Hospital School of Nursing v. Southwestern Bell Telephone Co., 539 S.W.2d 542, 545 (Mo.App.1976).
Letters of guardianship of the person are granted for a person adjudged incapacitated. Letters of conservatorship are granted for a person adjudged to be disabled. § 475.030.1, RSMo 1986. An "incapacitated person" is defined in § 475.010(8) as:
one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur. The term "incapacitated person " as used in this chapter includes the term "partially incapacitated person " unless otherwise specified or apparent from the context.
A person who is "disabled" or a "disabled person" is defined in § 475.010(4), RSMo 1986 as one:
(a) Unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his financial resources, or
(b) The term "disabled " or "disabled person " as used in this chapter includes the terms "partially disabled " or "partially disabled person " unless otherwise specified or apparent from the context.
The trial court had sufficient evidence before it to find that Ralph Hancock was disabled and incapacitated. The evidence was sufficiently clear and convincing to support the trial court's determination that an appointment of a guardian and a conservator should be made.
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