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Wednesday, June 27, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

Guardianship of Patrick Atkins; Brett Conrad v. Thomas Atkins and Jeanne Atkins - The question here is whether Brett, Patrick's life partner for 25 years, would be permitted visitation and contact with Patrick, who had had a stroke, over objections of Patrick's parents. The decision is 2-1, with a dissent beginning on p. 19. Chief Judge Baker writes:

We find, among other things, that although the trial court did not abuse its discretion by naming the Atkinses to be Patrick’s co-guardians, there is overwhelming evidence in the record establishing that it is in Patrick’s best interest to continue to have contact with Brett, his life partner of twenty-five years. We also find that the trial court erroneously refused Brett’s request to have a portion of his attorney fees and costs paid by the guardianship estate. Thus, we affirm in part, reverse in part, and remand with instructions to grant Brett the visitation and contact with Patrick that he requested and to calculate the amount of Brett’s attorney fees and costs to be paid by the guardianship estate. * * *

Conclusion. We are confronted here with the heartbreaking fracture of a family. Brett and Patrick have spent twenty-five years together as life partners—longer than Patrick lived at home with his parents—and their future life together has been destroyed by Patrick’s tragic medical condition and by the Atkinses’ unwillingness to accept their son’s lifestyle.

Although we are compelled to affirm the trial court’s order that the Atkinses be appointed Patrick’s co-guardians under our standard of review, we reverse the trial court with respect to Brett’s request for visitation, inasmuch as all credible evidence in the record establishes that it is in Patrick’s best interest to continue to have contact with his life partner. We also find that the trial court should have required Patrick’s presence at the hearing but that Patrick’s GAL waived that right by failing to enforce it. Additionally, we conclude that the trial court properly set off the entirety of the Charles Schwab account to the guardianship estate. Finally, we find that the trial court erroneously refused Brett’s request that the guardianship estate pay a portion of his attorney fees and costs and remand for a calculation of the amount to be paid therefrom. * * *

ROBB, J., concurs.
DARDEN, J., dissents with opinion: 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. * * *

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, I believe that it has impermissibly substituted its judgment for that of the trial court. * * *

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.

In Beth Palmer Kopczynski v. David Bryan Barger and Peggy Lucas Barger , a 19-page, 2-1 opinion, Chief Judge Baker writes:
[T]the Palmers claim that summary judgment was improper because there was a genuine issue of material fact as to whether the Bargers were negligent in allowing Alisha to play on their trampoline without any supervision. Alternatively, the Palmers contend that the Bargers should be held liable for the injuries that Alisha sustained because the trampoline was an attractive nuisance. Concluding that summary judgment was properly entered for the Bargers, we affirm the judgment of the trial court. * * *

In essence, the designated evidence established that Alisha knew of the trampoline’s dangers, and the record is devoid of any evidence that there was any hidden peril that Alisha could not have comprehended.

There is also no evidence that the Bargers knew that children might trespass on their property and be injured by the trampoline. As noted above, there was no communication or interaction between the Bargers and the Palmers before the accident occurred. In our view, this lack of interaction between the families supports the notion that the Bargers would not anticipate that Alisha would enter their property and use the trampoline. Moreover, Beth had specifically instructed her children not to wander on to the neighbors’ property. Finally, the designated evidence established that the Bargers permitted other children on the trampoline only if the adults had invited them onto the property.

In light of this evidence, it is apparent that the Bargers had no reason to know that Alisha might enter their property and jump on the trampoline without their express permission. Thus, the Palmers have failed to show that the Bargers may be held liable for Alisha’s injuries under an attractive nuisance theory. While we are sympathetic to Alisha’s plight, we conclude that summary judgment was properly entered for the Bargers. The judgment of the trial court is affirmed.

FRIEDLANDER, J., concurs.
CRONE, J., dissents with opinion. [that begins] I respectfully disagree with the majority’s conclusion that Alisha was a trespasser and that the trampoline was not an attractive nuisance as a matter of law. Therefore, I dissent.

In Pam Kuehne and Larry Kuehne v. United Parcel Service, Inc., a 13-page opinion, Chief Judge Baker writes:
In this case, we are asked to resolve an issue of first impression in Indiana. Appellants-plaintiffs Pam and Larry Kuehne (collectively, the Kuehnes) appeal the grant of summary judgment in favor of appellee-defendant United Parcel Service, Inc. (UPS), regarding their claim against UPS for negligence after Pam tripped over a package that a UPS driver left on the Kuehnes’ doorstep. Specifically, the Kuehnes argue that the trial court erred in determining that their claims against UPS were preempted by federal law. In response, UPS argues that the Kuehnes’ claims are preempted because “Congress has barred the application of state laws to determine how UPS provides its services.” Concluding that the Kuehnes’ claims against UPS are not preempted by federal law, we hold that summary judgment was improperly entered for UPS. Thus, we reverse the judgment of the trial court and remand this cause for trial.
Alexander C. Thompson v. Carmen M. Thompson - "Our Supreme Court has ruled that the question of the proper treatment of the Social Security retirement benefits received by a child in calculating child support should be left to the sound discretion of the trial court. We hold that a trial court abuses that discretion in setting support at a level that varies to such an extent from the standard of living that the child would have enjoyed had the family remained intact and that devotes substantially higher percentages of total family income to such support for families receiving Social Security benefits than those that do not. Accordingly, we reverse the trial court’s support calculation and remand for a recalculation of the support obligation consistent with this opinion."

NFP civil opinions today (3):

Robyn Hayden v. The Guardianship of D.H., a minor child (NFP) - guardianship, affirmed.

Charles E. DeMorrow v. Eunice L. DeMorrow (NFP) - property settlement agreement, affirmed.

Mitzi Ruth Stephens n/k/a Mitzi Ruth Elliott v. Kevin Ray Stephens (NFP) - "We conclude that Elliott has not demonstrated that the trial court improperly ordered that she must reimburse Stephens for college expenses he advanced due to Elliott’s failure to meet her obligation. Affirmed."

NFP criminal opinions today (3):

Richard A. Ostrander v. State of Indiana (NFP)

Donald Adkins v. State of Indiana (NFP)

Jeremiah T. Peters v. State of Indiana (NFP)

Posted by Marcia Oddi on June 27, 2007 01:41 PM
Posted to Ind. App.Ct. Decisions