In Re the Marriage of Myers

HOFFMAN, Judge,

dissenting.

I dissent.

The well-settled rule on appeal, apparently ignored by the majority, is that this Court will consider only that evidence most favorable to the judgment, together with all reasonable and logical inferences which may be drawn therefrom. Cook v. Rosebank Development Corp. (1978), Ind.App., 376 N.E.2d 1196, at 1199; Utica Mut. Ins. Co. v. Ceding (1977), Ind.App., 370 N.E.2d 373, at 376.

Further, that evidence will be viewed with due regard for the opportunity of the trial court to observe the demeanor of witnesses and to form judgments of their credibility. Schwartz v. Schwartz (1976), Ind. App., 351 N.E.2d 900, at 901; Cornwell v. Cornwell (1940), 108 Ind.App. 350, at 354, 29 N.E.2d 317, at 318.

This Court may neither weigh the evidence nor substitute its judgment for that of the trier of fact, In Re Marriage of Patus (1978), Ind.App., 372 N.E.2d 493, at 495, even though we might have reached a different conclusion had we been the triers of fact. J. I. Case Co. v. Sandefur (1964), 245 Ind. 213, at 223, 197 N.E.2d 519, at 523.

These principles of review apply to all cases, and those cases involving questions of child custody are no exceptions. See, e. g. Shaw v. Shaw (1973), 159 Ind.App. 33, 304 N.E.2d 536 (stating presumption in favor of appellee).

The evidence most favorable to Laura, as appellee, is as follows:

Two psychiatrists testified that, although Laura had previously experienced some problems requiring psychiatric treatment, she was now capable of caring for her son, Keith. Further, the difficulties which she had experienced occurred a number of years ago, and she had required no treatment for about two and a half years prior to trial.

Laura testified that she was employed on a full-time basis and was financially able to maintain her own household without outside assistance. During her working hours, Keith would be cared for by her mother. Laura further stated that she was living in a two-bedroom apartment where Keith would have his own bedroom; whereas, if Bruce were to have custody, Keith would be required to stay in his paternal grandparents’ bedroom.

Two witnesses testified to Laura’s fitness as a parent. One observed that Laura took great pride in the care of Keith and that the boy was well-behaved when in the company of his mother. The other noted that Laura and Keith got along very well and that Keith was always neat and clean. Both concluded that Laura was a fit and proper person to have permanent custody of her son.

The testimony of other witnesses indicated that Bruce had exhibited signs of a bad temperament on a number of occasions, including one incident when he struck Laura during her pregnancy and two others when he damaged household fixtures by striking them with his fist.

In view of this evidence I cannot agree that the decision below was “ ‘clearly against the logic and effect of the facts and circumstances before the court,’ ” thus requiring a reversal of the judgment. See: Schwartz v. Schwartz, supra; Shaw v. Shaw, supra; Buchanan v. Buchanan (1971), 256 Ind. 119, 267 N.E.2d 155. Where, as here, the record contains ample evidence to support the trial court’s award of custody, no abuse of discretion will be found. Schwartz, supra, 351 N.E.2d at 901—902.

That the trial judge may have made casual, off-the-record remarks which might be construed as an indication that he considered an improper presumption regarding custody is of absolutely no moment in this case. The conversations reported by attorney Sopko’s affidavit do little more than relate the observations made by Judge Ho-sinski in the course of his many years of hearing cases such as these. In my view, the use of those off-hand, off-the-record observations to impeach the judgment falls *1366short of being a necessary exercise in advocacy. More importantly, the fact that the judgment is sustainable as a matter of law renders any discussion of such matters irrelevant.

The decision reached today by the majority can only encourage a multitude of appeals based on events occurring outside the courtroom, thereby discouraging open communication between the bench and bar. The wisdom of avoiding such a result is self-evident.

I would therefore affirm the judgment below.