      MEMORANDUM DECISION
                                                                     Jun 16 2015, 8:21 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Andrew C. Mallor                                         Andrew Z. Soshnick
      Kendra G. Gjerdingen                                     Teresa A. Griffin
      Mallor Grodner LLP                                       Faegre Baker Daniels LLP
      Bloomington, Indiana                                     Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the                                     June 16, 2015
      Guardianship of M.B.,                                    Court of Appeals Case No.
                                                               06A01-1408-GU-355
      Mariea L. Best,                                          Appeal from the Boone Superior
                                                               Court
      Appellant-Nonparty,
                                                               The Honorable Matthew C. Kincaid,
              v.                                               Judge

                                                               Case No. 06D01-1401-GU-1
      Russell C. Best,
      Appellee-Petitioner




      Crone, Judge.


                                               Case Summary
[1]   Mariea L. Best attempts to appeal from the trial court’s order appointing her ex-

      husband, Russell C. Best, as guardian of their twenty-year-old incapacitated

      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015   Page 1 of 11
      daughter, M.B. However, because Mariea was not a party to the guardianship

      proceedings below and because she has not demonstrated that the trial court’s

      judgment is adverse to her legal interests, she is without standing to pursue this

      appeal. Consequently, we dismiss her appeal.


                                   Facts and Procedural History
[2]   The present case is yet another chapter in the seemingly never-ending post-

      dissolution litigation between Mariea and Russell. 1 While it is unnecessary to

      belabor the tumultuous details, some procedural background is warranted.

      Mariea and Russell’s marriage was dissolved in 2004. They initially agreed to

      share custody of their two children: son Alex, born in 1992, and daughter,

      M.B., who has Down Syndrome and was born in 1995. In June 2009, the

      dissolution court granted Russell’s petition to modify custody and awarded

      Russell sole legal and primary physical custody of Alex and M.B. Mariea

      appealed, and our supreme court affirmed the dissolution court’s decision in

      Best I, 941 N.E.2d at 504.


[3]   The intense battles between this ex-couple that ensued have revolved solely

      around M.B. In October 2011, the dissolution court approved a mediated

      agreed entry (“Agreed Entry”) between the parties which provided in relevant

      part as follows:




      1
        Best v. Best, 941 N.E.2d 499 (Ind. 2011) (“Best I”); In re Marriage of Best, 06A04-1401-DR-46 (Ind. Ct. App.
      Jun. 25, 2014) (“Best II”); Best v. Best, No. 06A04-1403-DR-124 (Ind. Ct. App. Sept. 3, 2014) (“Best III”).

      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015                Page 2 of 11
              3. Neither party (either personally or in a representative capacity) will
              seek guardianship of [M.B.] prior to her attaining twenty-one years of
              age unless necessary for medical or public benefits purposes. If it
              becomes necessary before age twenty-one (21), it is agreed that
              [Russell] will serve as the guardian. Barring establishment of a
              guardianship, the custody order and jurisdiction of this Court remain
              in full force and effect.
      Appellant’s App. at 43.


[4]   At some point after M.B.’s nineteenth birthday, the parties decided that a

      guardianship over M.B. should be established even though she was not yet

      twenty-one years old. However, despite the Agreed Entry, Mariea filed several

      motions and petitions in an attempt to be named M.B.’s guardian, including a

      petition for guardianship in the Hamilton Superior Court. Russell responded by

      filing a petition with the dissolution court to enforce the Agreed Entry. On

      January 3, 2014, the dissolution court entered its order which provided that the

      issue of guardianship was resolved by the parties’ Agreed Entry, and that the

      Boone Superior Court has jurisdiction over guardianship proceedings. The

      court further ordered, “if deemed necessary for medical or public benefits

      purposes, Russell Best shall with the consent of Mariea Best, file a petition to

      establish guardianship over the person of [M.B.] in a court of proper

      jurisdiction.” Id. at 53. Mariea appealed that order. Another panel of this

      Court affirmed the dissolution court’s order in Best II, slip. op. at 2.


[5]   While the appeal in Best II was pending, Russell filed a petition to establish

      guardianship over M.B.’s person in Boone Superior Court. Russell also

      requested that Mariea consent to his guardianship petition. When Mariea


      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015   Page 3 of 11
      refused to give her consent, Russell filed a contempt petition in the dissolution

      court alleging that Mariea willfully and intentionally failed to comply with the

      parties’ Agreed Entry and the court’s January 3, 2014 order. Following an

      evidentiary hearing, the dissolution court found Mariea in contempt and

      ordered her “to sign a blanket consent to the guardianship of [M.B.] by Russell

      Best by 8:00 a.m. on February 20, 2014.” Appellant’s App. at 247. Mariea

      signed the consent which included language that the consent was “without

      prejudice to [Mariea’s] right to request a replacement guardian of the person of

      [M.B.] after the appointment of Russell Best as her guardian.” Id. at 76.

      Mariea then appealed the dissolution court’s contempt order. This Court

      affirmed the court’s order in Best III, slip op. at 4.


[6]   Meanwhile, the parties entered into an agreement filed with the Hamilton

      Superior Court entitled “Court Order of February 20, 2014” that essentially

      memorialized the dissolution court’s contempt order. Specifically, the order

      provided that Mariea would dismiss her guardianship action in the Hamilton

      Superior Court because the Boone Superior Court has jurisdiction over the

      guardianship of M.B. Mariea also agreed that she would not “directly or

      indirectly, oppose [Russell’s] petition that he be appointed guardian of the

      person of [M.B.],” but she reserved the right to request a replacement guardian

      after Russell was appointed. Id. at 248. The agreement further stated that “the

      parties agree that this order shall be effective in the pending Boone Superior

      Court I guardianship action, and should be recognized as an order of that

      Court.” Id. at 249. On February 26, 2014, Russell filed his amended petition to


      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015   Page 4 of 11
      establish guardianship over the person of M.B. in the Boone Superior Court and

      attached Mariea’s consent to his petition.


[7]   On March 26, 2014, M.B.’s brother, Alex, filed a motion to intervene in the

      guardianship proceedings. Without objection from Russell, Alex filed his cross-

      petition seeking his appointment as guardian or co-guardian of M.B. Alex also

      filed a petition for the court to appoint a guardian ad litem (“GAL”) for M.B.

      The trial court appointed a GAL on April 28, 2014. In its appointment order,

      the trial court directed the GAL to consider, among other things, whether it is

      in M.B.’s best interests that Russell be appointed, that Alex be appointed, or

      that some third person “unrelated to [M.B.] by the first degree be appointed”

      guardian. Id. at 97. The court specifically noted that Mariea “by previous

      agreement has waived her ability to contest the initial appointment of Russell

      Best as guardian or to pursue appointment herself.” Id. at 94 n.1. Shortly

      thereafter, following the submission of physician reports indicating that M.B.

      was unable to care for herself or her property and that she faced immediate and

      irreparable injury, the trial court, on its own motion, appointed Russell as

      temporary guardian of M.B. pending final outcome of the guardianship

      proceedings. As an intervening party, Alex filed his consent to Russell being

      appointed temporary guardian.


[8]   Even though Mariea was not a party to the guardianship proceedings, she filed

      multiple motions and petitions with the trial court, including a petition for

      appointment of a replacement guardian, essentially contesting the meaning of

      her consent to the appointment of Russell as M.B.’s guardian and objecting to

      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015   Page 5 of 11
the trial court’s determination that she was ineligible to be appointed as

guardian. On July 14, 2014, the trial court overruled Mariea’s objections and

dismissed her petition for appointment of a replacement guardian again

concluding that Mariea

         is ineligible to serve as an initial guardian in this case because she has
         already consented to [Russell] serving as guardian. She has bargained
         away her standing vis-à-vis [Russell]. Because she consents to
         [Russell] being guardian, she is estopped from taking a contrary
         position at the hearing that she be appointed. That would render the
         [Agreed Entry] between [Russell] and [Mariea] a nullity, contrary to
         the public policy favoring the durability of settlement agreements and,
         more to the point, contrary to the Court of Appeals’ ruling on this very
         issue.
Id. at 139. The trial court went on to explain that there is nothing to prevent

Mariea from seeking appointment as a successor guardian in the future, but that

her current request to be considered for and appointed guardian is not ripe due

to her consent that Russell serve, at least initially, as guardian. 2 The court

stated that, based upon her consent, Mariea could not participate as a party in

the guardianship proceedings or petition the trial court “in any fashion adverse”

to Russell’s petition for guardianship. Id. at 140. However, the trial court




2
  Mariea argued that Russell’s appointment as M.B.’s temporary guardian during the pendency of the
guardianship proceedings made her eligible to go ahead and seek appointment as a replacement guardian
pursuant to the Agreed Entry in which she reserved the right to request a replacement guardian for M.B.
“after the appointment of [Russell] as her guardian.” Appellant’s App. at 76. It appears that the trial court
found Mariea’s argument disingenuous, and we agree. Clearly the reservation of rights language in Mariea’s
consent contemplates a scenario that could occur only after a guardianship appointment has been made at
the conclusion of the guardianship proceedings and not merely the temporary appointment of Russell as
guardian during the pendency of the guardianship proceedings.



Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015              Page 6 of 11
      concluded that Mariea could attend the guardianship hearing and that she

      could testify if called as a witness. 3 The trial court’s dismissal of Mariea’s

      petition for replacement was “without prejudice if [Russell] (a) is found not

      qualified and is not appointed and/or (b) [Russell] is appointed but in the future

      removed or incapable of serving and a successor guardian is required; this

      DISMISSAL is otherwise with prejudice.” Id. 4


      The trial court held evidentiary hearings on July 15, 30, and 31, 2014. Russell

      and Alex both appeared by counsel and each requested to be appointed

      guardian over the person and estate of M.B. Mariea attended the hearings as an

      interested person along with her counsel. M.B. attended the hearings with her

      GAL who was also represented by counsel. At the conclusion of the hearings,

      the trial court took the matter under advisement and, on August 8, 2014, issued

      extensive findings of fact and conclusions thereon pursuant to Indiana Trial

      Rule 52, appointing Russell as guardian of the person and estate of M.B. 5


[9]   On August 25, 2014, Mariea filed a notice of appeal. Thereafter, Russell filed a

      verified motion to dismiss the appeal with prejudice arguing that Mariea was

      neither a party to the guardianship action nor an aggrieved person within the




      3
          Indiana Code Section 29-3-5-1(f) provides:

               Any person may apply for permission to participate in the proceeding, and the court may grant
               the request with or without hearing upon determining that the best interest of the alleged
               incapacitated person or minor will be served by permitting the applicant’s participation. The
               court may attach appropriate conditions to the permission to participate.
      4
          Mariea did not seek an interlocutory appeal of this decision.
      5
          We commend the trial court for its incredibly detailed, thorough, and thoughtful findings and conclusions.


      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015                Page 7 of 11
       meaning of the guardianship statutes, and therefore she is without standing to

       pursue an appeal of the trial court’s decision. Mariea objected to the motion to

       dismiss. On October 22, 2014, our motions panel entered an order holding the

       motion to dismiss in abeyance to be addressed by the writing panel to which

       this case was assigned. The parties then filed their respective appellate briefs

       and appendices. As the writing panel, we now address whether dismissal of

       this appeal is appropriate.


                                      Discussion and Decision
[10]   Russell challenges Mariea’s standing to bring this appeal. We begin by noting

       that our supreme court has defined standing as “having sufficient stake in an

       otherwise justiciable controversy to obtain judicial resolution of that

       controversy.” Old Nat’l Bancorp v. Hanover Coll., 15 N.E.3d 574, 575-76 (Ind.

       2014) (citation and some quotation marks omitted). “Like the real-party-in-

       interest requirement, the point of the standing requirement is to insure that the

       party before the court has a substantive right to enforce the claim that is being

       made in the litigation.” Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct. App.

       2011). Standing focuses generally upon the question of whether the

       complaining party is the proper person to invoke the Court’s power. Pence v.

       State, 652 N.E.2d 486, 488 (Ind. 1995). More fundamentally, however,

       “standing is a restraint upon this Court’s exercise of its jurisdiction in that we

       cannot proceed where there is no demonstrable injury to the complainant before us.” Id.

       (quoting City of Indianapolis v. Bd. of Tax Comm’rs, 261 Ind. 635, 638, 308 N.E.2d

       868, 870 (1974)).

       Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015   Page 8 of 11
       Initially, we note that Mariea concedes that she was not a party to the

       guardianship proceedings below. We have previously explained that, just as

       Indiana Appellate Rule 17(A) provides that “[a] party of record in the trial court

       … shall be a party on appeal,” the converse is also true: a person who is not a

       party of record in the trial court cannot become a party for the first time on

       appeal. Simon, 957 N.E.2d at 989. Instead, to maintain an appeal, the person

       considering herself aggrieved first must have been a party before the trial court

       as there are no appellate rules providing for intervention on appeal. Id. at 988-

       89. In short, one cannot appeal a judgment entered in a proceeding in which

       one was not a party. Matter of Guardianship of Coffey, 624 N.E.2d 465, 466 (Ind.

       1993). As it is undisputed that Mariea was not a party in the guardianship

       proceedings, as a general matter it follows that she cannot now appeal the trial

       court’s judgment entered in those proceedings.


       Nevertheless, Mariea maintains that she has standing to appeal the trial court’s

       order pursuant to Bristow v. Konopka, 166 Ind. App. 357, 359, 336 N.E.2d 397,

       398 (1975) (stating that to appeal pursuant to the guardianship statutes “one

       need not be a party, and need only ‘consider’ himself aggrieved) and the broad

       language of Indiana Code Section 29-1-1-22. That section provides:

               Any person considering himself aggrieved by any decision of a court
               having probate jurisdiction in proceedings under this article may
               prosecute an appeal to the court having jurisdiction of such appeal.
               Such appeal shall be taken as appeals are taken in civil causes.
               Executors, administrators, guardians and fiduciaries may have a stay
               of proceedings without bond.
[11]   Ind. Code § 29-1-1-22. Mariea’s reliance on these authorities is misplaced.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015   Page 9 of 11
[12]   First, we remind Mariea that regardless of whether she considers herself

       aggrieved by the trial court’s judgment here, Indiana Appellate Rule 9(A)

       clearly states that “[a] party initiates an appeal….” (emphasis added).

       Moreover, we have concluded that a person’s subjective belief that he or she is

       aggrieved does not control, as such interpretation of the above statutory

       language would “provide no discernable limit to who could challenge a probate

       court’s decision.” In re Estate of Eguia, 917 N.E.2d 166, 169 (Ind. Ct. App.

       2009). Rather, for a person to be “aggrieved” pursuant to the statute, the

       probate court’s judgment must be adverse to that person’s legal interests. Id.

       Under the circumstances presented, Mariea can claim no cognizable legal

       interest.


[13]   Mariea consented to Russell’s appointment as M.B.’s guardian, as well as her

       ineligibility to serve, at least initially, as guardian, in the Agreed Entry, and this

       Court has twice concluded that she is bound by that consent. See Best II, slip op.

       at 2; Best III, slip op. at 4. At the conclusion of the guardianship proceedings,

       the trial court appointed Russell guardian of M.B.’s person and estate. Mariea

       has not demonstrated that the trial court’s judgment has affected her or will

       affect her in any way based upon her prior consent to this exact result. Due to

       her consent, she had no true stake in the outcome of these proceedings, and

       therefore she has failed to demonstrate that she has any legal interest to which




       Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015   Page 10 of 11
       the court’s judgment was adverse. 6 For the reasons stated, Mariea lacks

       standing to pursue an appeal of the trial court’s judgment, and we therefore

       dismiss her appeal.


[14]   Dismissed.


       Brown, J., and Pyle, J., concur.




       6
         We additionally note that the doctrine of “[j]udicial estoppel prevents a party from assuming a position in a
       legal proceeding inconsistent with one previously asserted when the court has acted on the admissions of the
       estopped party.” Ohning v. Driskill, 739 N.E.2d 161, 163 (Ind. Ct. App. 2000), trans. denied (2001). Mariea
       consented to Russell’s appointment as M.B.’s guardian in the Agreed Entry and, as noted above, this Court
       has twice concluded that she is bound by that consent. The trial court here acted in accordance with
       Mariea’s consent. She is estopped from now asserting that there is a justiciable legal dispute between herself
       and Russell on this issue.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1408-GU-355 | June 16, 2015               Page 11 of 11
