MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                         Aug 21 2020, 8:27 am
court except for the purpose of establishing                                          CLERK
the defense of res judicata, collateral                                           Indiana Supreme Court
                                                                                     Court of Appeals
estoppel, or the law of the case.                                                      and Tax Court




ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Michael L. Parkinson                                     Eileen P.H. Moore
Parkinson Law Office                                     Derek R. Molter
West Lafayette, Indiana                                  Eric J. McKeown
                                                         Ice Miller LLP
John K. Morris
                                                         Indianapolis, Indiana
Morris Law Office
Lafayette, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Guardianship:                                            August 21, 2020
                                                         Court of Appeals Case No.
Michael L. Parkinson, et al.,                            19A-GU-1032
Appellants-Respondents,                                  Appeal from the Tippecanoe
                                                         Circuit Court
        v.                                               The Honorable Sean M. Persin,
                                                         Judge
Heidi Smith,                                             Trial Court Cause No.
Appellee-Petitioner.                                     79C01-1512-GU-130




Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020       Page 1 of 16
                                            Case Summary
[1]   This case involves a lengthy family dispute over access to William L. Parkinson

      and his assets. William died on December 27, 2017, after a battle with

      Alzheimer’s disease. Prior to William’s death, Heidi Smith, who is William’s

      granddaughter, petitioned for a guardianship, alleging that William was unable

      to take care of his affairs and that Michael L. Parkinson, his son and Heidi’s

      uncle, was asserting undue influence over William. Prior to William’s death,

      the trial court appointed a guardian ad litem (“GAL”) and indicated that a legal

      guardian was needed. However, William died before the trial court appointed a

      legal guardian. After William’s death, Heidi requested attorney’s fees pursuant

      to Indiana Code sections 29-3-9-9 and 29-3-4-4. Following a hearing, and over

      Michael’s objection, the trial court awarded Heidi $413,872.17 in attorney’s

      fees. Michael and his wife Yvonne Parkinson (collectively, “Appellants”)

      appeal, arguing that the trial court abused its discretion in granting Heidi’s

      request for attorney’s fees. We affirm.



                             Facts and Procedural History
[2]   William was diagnosed with Alzheimer’s disease in 2013. On December 4,

      2015, Heidi petitioned for the appointment of a legal guardian for William (“the

      Petition”).1 In seeking the appointment of a legal guardian, Heidi expressed




      1
       Heidi subsequently filed an amended petition in which she corrected certain procedural errors but did not
      amend any substantive issues.

      Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020                 Page 2 of 16
      concerns regarding William’s ability to manage his property and care due to

      undue influence by Michael. William’s counsel opposed Heidi’s attempts to

      establish a guardianship for William, filing a motion to dismiss the Petition on

      December 15, 2015. Michael joined the motion to dismiss as an interested

      party. On March 9, 2016, the trial court dismissed the Petition, finding that it

      was barred by the doctrine of res judicata. Heidi appealed the dismissal of the

      Petition. On December 29, 2016, we reversed the dismissal of the Petition,

      concluding that it was not barred by res judicata. See H.S. v. W.P., 66 N.E.3d

      623 (Ind. Ct. App. 2016), trans. denied. The Indiana Supreme Court denied

      transfer and the case was remanded to the trial court for further proceedings.

      Id.


[3]   During the time between Heidi’s filing of the Petition and the reinstatement of

      the action in the trial court, William’s health declined. Medical records from

      May of 2017 indicated that William required help with activities of daily living

      and “constant supervision.” Appellee’s App. Vol. II p. 37. On remand,

      William’s counsel continued to resist Heidi’s attempts to independently verify

      William’s mental capacity.


[4]   On June 8, 2017, Heidi sought the appointment of a GAL based on her

      concerns for William’s mental capacity and his ability to protect his own

      interests or direct his own legal representation (the “GAL Motion”). Heidi also

      filed a motion for leave to have a medical examination of William performed.

      A few days later, Heidi filed a motion to compel William to sit for a deposition.



      Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 3 of 16
      In the alternative, she again requested that the trial court appoint a GAL and

      order a medical examination of William.


[5]   On June 30, 2017, the trial court held a hearing on the pending motions. The

      trial court granted Heidi’s request to have a medical examination performed

      and scheduled a hearing on the GAL Motion for August 28, 2017. The trial

      court also granted Michael’s motion to intervene. The medical examination

      was delayed due to a dispute as to whether it would be recorded.


[6]   Following the August 28, 2017 hearing, the trial court granted Heidi’s request

      to record William’s medical examination. The trial court also determined that

      the appointment of a GAL was appropriate. Harry J. Falk was subsequently

      appointed as the GAL. The trial court directed the parties to “cooperate” with

      the GAL and set a status hearing for October 2, 2017. Appellee’s App. Vol. II

      p. 118.


[7]   On September 11, 2017, Martin R. Farlow, M.D., performed the court-ordered

      medical examination of William, finding that William “was unable to tell me

      what he had for dinner last night or breakfast this morning,” that he “had no

      knowledge of previous hospitalizations,” and that he “could not provide time,

      date, day of the week, month and said the year was 1949.” Appellee’s App.

      Vol. II p. 119. William “did not know where we were, and could not tell me

      where he lived,” nor could he remember how many children he had.

      Appellee’s App. Vol. II pp. 119–20. Dr. Farlow concluded, inter alia, that

      William “does not know the extent of his wealth” and “[a]t the current time he


      Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 4 of 16
      would not have financial capacity to manage his estate, nor the capacity to

      appropriately manage healthcare or legal matters.” Appellee’s App. Vol. II p.

      120. Moreover, Dr. Farlow concluded that “[a]t this stage his impairment has

      become so severe he no longer has capacity to meaningfully choose or delegate

      who should represent him in these matters.” Appellee’s App. Vol. II p. 120.


[8]   On November 5, 2017, the GAL requested permission to retain an expert

      witness to conduct an accounting of substantial sums paid or transferred to

      Michael and/or Yvonne by William. The GAL noted that financial records

      produced in discovery “demonstrate that from August of 2015 until December

      of 2015, specifically, five (5) months, [William] paid approximately the sum of

      one hundred thirty-four thousand three hundred fifteen dollars ($134,315.00) to

      Michael” and that “in December of 2015 alone Michael … and/or Yvonne[2] …

      received almost the sum of seventy-five thousand dollars ($75,000.00).”

      Appellee’s App. Vol. II p. 121. Also on November 5, 2017, William’s counsel

      moved to continue the previously-scheduled December 2017 trial date, claiming

      that counsel had a previously-known but not mentioned scheduling conflict.

      Heidi opposed the motion to continue the trial date, expressing “grave concerns

      that any further delay in the resolution of this matter increases the risk that her

      grandfather (William) could pass away without the opportunity to reunite with

      estranged family members.” Appellee’s App. Vol. II p. 129.




      2
          Yvonne also intervened in the underlying lawsuit.


      Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 5 of 16
[9]    The trial court conducted a status hearing on November 13, 2017, during which

       the GAL reported that “there is no way that [William] is able to care for

       anything” and “I’ve said it numerous times … [he] is not competent and he is

       unable to care for himself financially or medically.” Tr. Vol. II pp. 104–05.

       The trial court found that William was “unable to sit for a deposition and as a

       consequence is unable to conduct his legal affairs and that a [legal] guardian is

       required for [William] and the question is who the [legal] guardian should be.”

       Tr. Vol. II p. 105. The trial court’s written order issued the next day also

       confirmed that William “lacks the capacity to sit for a deposition, and as a

       consequence, is unable to conduct his legal affairs and a [legal] guardian is

       required.” Appellee’s App. Vol. II p. 132. The trial court continued the trial

       date, rescheduling it for February 21–23, 2018, and directed the GAL to

       proceed with retaining the expert witness to examine the transfers from William

       to Michael.


[10]   On November 20, 2017, Heidi and the GAL filed a joint application to protect

       William’s assets. On December 1, 2017, Heidi filed an emergency petition,

       seeking a temporary guardian over William’s person and estate until such time

       as the trial court could conduct a final hearing on the merits. In the alternative,

       Heidi sought a protective order to protect William’s estate and person pending a

       final hearing on the merits.


[11]   The trial court held a two-day evidentiary hearing on December 7 and 18, 2017.

       During the hearing, the GAL testified that William was “absolutely not”

       capable of managing his own property, stating that “he’s not capable of

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 6 of 16
       handling his own affairs, personally or personal or property.” Tr. Vol. II p.

       172. The GAL further testified that after reviewing records concerning the

       management of William’s funds, he was “gravely concerned about the extent of

       the funds that are being spent” and “very concerned about the dissipation of

       [William’s] assets” as “there are large sums of money that have been

       dissipated.” Tr. Vol. II pp. 165, 174. The GAL further testified that he was

       “very concerned about when you have a person using a power of attorney to

       spend funds” and “very concerned about where this money is going.” Tr. Vol.

       II p. 113.


[12]   The trial court echoed the GAL’s concerns, stating that it was “concerned about

       the allegation about how much money has been transferred and to whom,”

       “concerned about what happened with the one trust going into the other trust,”

       and that “[t]hose are things which are kind of alarming.” Tr. Vol. II p. 169.

       The trial court also recognized that “there is a substantial amount of money

       that has been transferred for the benefit of Michael,” Tr. vol. III p. 62, and that

       if William’s assets were being depleted for the benefit of Michael or his wife,

       “that requires an intervention.” Tr. Vol. III, p. 55. Further, the trial court

       stated its intention to “keep [the] corpus intact until [a] hearing [could] be held”

       and provide some protection for the proceeds of the sale of William’s property

       should it occur before a final hearing. Tr. Vo1. III p. 80.


[13]   In an order dated December 18, 2017, the trial court ordered that Heidi be

       allowed to visit William under the supervision of the GAL and without

       interference from Michael. The trial court also imposed several protections to

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 7 of 16
       prevent further dissipation of William’s assets pending a final guardianship

       determination. These protections included the following:


               1. No cash withdrawals over $100.00 without the prior approval
               of [Michael], [the GAL], and the Court;
               2. No transaction of any kind over $1,500.00 without the prior
               approval of [Michael], [the GAL], and the Court;
               3. [Michael and the GAL] shall be provided with real time
               electronic access to the account and [have] the ability to review
               all transactions.


       Appellants’ App. Vol. III p. 80. These restrictions applied to “any funds

       belonging to William … or the William L. Parkinson Trust.” Appellants’ App.

       Vol. III p. 80. In addition, “[t]he approval of [Michael], [the GAL], and the

       Court must be obtained prior to selling, transferring, or otherwise disposing of

       any real property or other assets owned or held by William … or his Trust.”

       Appellants’ App. Vol. III p. 80. William passed away on December 27, 2017.


[14]   On January 16, 2018, Heidi filed a request for attorney’s fees and costs pursuant

       to Indiana Code sections 29-3-9-9 and 29-3-4-4. In doing so, Heidi detailed her

       efforts in the trial court action which she claimed resulted in numerous benefits

       for William, including, inter alia, preventing Michael from further dissipation of

       William’s assets/estate, restricting the transfer or disposition of any real

       property or assets owned by William or his trust by Michael without approval,

       and giving William the opportunity to reunite with his granddaughter before his

       death. Michael opposed Heidi’s request, arguing that Heidi was not entitled to

       attorney’s fees because the December 18, 2017 order was not a protective order


       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 8 of 16
       and William was not a protected person. The trial court conducted a hearing

       on Heidi’s petition on September 18, 2018. Near the conclusion of the hearing,

       the trial court acknowledged that Heidi’s request for attorney’s fees “hinge[d]

       on this issue of is there an order of protection in place or not.” Tr. Vol. III p.

       152. The trial court subsequently issued an order awarding Heidi $413,872.17

       in attorney’s fees.



                                  Discussion and Decision
[15]   Appellants contend that the trial court erred in granting Heidi’s request for

       attorney’s fees. “We review the trial court’s award of attorney fees for an abuse

       of discretion.” Matter of Guardianship of Lamey, 87 N.E.3d 512, 524 (Ind. Ct.

       App. 2017) (citing Ind. Code § 29–3–2–4; In re Guardianship of Hickman, 811

       N.E.2d 843, 851 (Ind. Ct. App. 2004), trans. denied). “An abuse of discretion

       occurs only if the judgment is against the logic and effect of the facts and

       circumstances before the court, together with any reasonable inferences arising

       therefrom.” Id. (citing Hickman, 811 N.E.2d at 851).


                                   I. Statutory Right to Fees
[16]   Appellants argue that the trial court abused its discretion in granting Heidi’s

       request for attorney’s fees because the trial court lacked statutory authority to

       order fees. We disagree. Pursuant to Indiana Code section 29-3-9-9:


               (a) Whenever a guardian is appointed for an incapacitated person
               or minor, the guardian shall pay all expenses of the proceeding,
               including reasonable medical, professional, and attorney’s fees,

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 9 of 16
               out of the property of the protected person.
               (b) The expenses of any other proceeding under this article that
               results in a benefit to the protected person or the protected
               person’s property shall be paid from the protected person’s
               property as approved by the court.


       “The right to compensation from the guardianship estate ‘should not depend

       upon the result of the litigation but rather upon the reasonable necessity for

       such litigation.’” Lamey, 87 N.E.3d at 525 (quoting In re Guardianship of N.R.,

       26 N.E.3d 97, 100 (Ind. Ct. App. 2015)).


               Thus, when ruling on an attorney fee petition in a guardianship
               proceeding, the trial court should consider not only the outcome
               of the proceedings but also “(1) whether the parties acted
               reasonably and in good faith incurring the fees, (2) whether the
               facts were in dispute, (3) whether the legal issues were complex,
               and (4) whether any party’s misconduct caused the proceedings.”


       Id. (quoting N.R., 26, N.E.3d at 100). “‘A trial court may not award fees to a

       party whose misconduct necessitated the proceedings.’” N.R., 26 N.E.3d at 100

       (quoting In re Guardianship of Shaffer, 711 N.E.2d 37, 41 (Ind. Ct. App. 1999),

       trans. denied).


[17]   On November 13, 2017, the trial court found that William was “unable to

       conduct his legal affairs and that a [legal] guardian is required for [William] and

       the question is who the [legal] guardian should be.” Tr. Vol. II p. 105. The

       trial court scheduled further proceedings during which the court would hear

       argument regarding who should be appointed William’s legal guardian.

       William, however, died before a legal guardian was appointed.

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 10 of 16
[18]   While Indiana Code section 29-3-9-9(a) provides for payment of attorney’s fees

       in cases where a guardian has been appointed, Indiana Code section 29-3-9-9(b)

       provides for payment of expenses relating to other proceedings that result in

       benefit to a protected person or a protected person’s property. Thus, if William

       qualifies as a protected person and the expenses requested benefited William or

       his property, the expenses “shall be paid from the protected person’s property.”

       Ind. Code § 29-3-9-9(b).


[19]   The term “‘[p]rotected person’ means an individual for whom a guardian has

       been appointed or with respect to whom a protective order has been issued.” Ind.

       Code § 29-3-1-13 (emphasis added). With respect to protective orders, Indiana

       Code section 29-3-4-1 provides that


               (a) Upon petition by any person and after a hearing under IC 29-
               3-5, the court may issue, without the appointment of a guardian,
               any protective order for the benefit of a person who has been
               adjudicated an incapacitated person or is a minor.
                                                ****
               (d) The court may issue a protective order concerning an
               incapacitated person if the court finds that:
                      (1) the incapacitated person:
                             (A) owns property or has income
                             requiring management or protection
                             that cannot otherwise be provided;
                             (B) has or may have financial or
                             business affairs that may be jeopardized
                             or impaired; or
                             (C) has property that needs to be
                             managed to provide for the support or
                             protection of the incapacitated person;


       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 11 of 16
                      (2) the incapacitated person is unable to manage the
                      incapacitated person’s property and financial or
                      business affairs effectively; and
                      (3) the protection sought is necessary.
               The court shall make the orders that it considers proper and
               appropriate to protect the person, business affairs, and property
               of the incapacitated person.


       An “incapacitated person” is an individual who


               is unable:
                       (A) to manage in whole or in part the individual’s
                       property;
                       (B) to provide self-care; or
                       (C) both;
               because of insanity, mental illness, mental deficiency, physical
               illness, infirmity, habitual drunkenness, excessive use of drugs,
               incarceration, confinement, detention, duress, fraud, undue
               influence of others on the individual, or other incapacity[.]


       Ind. Code § 29-3-1-7.5(2).


[20]   In this case, the trial court acknowledged that resolution of Heidi’s request for

       attorney’s fees hinged on whether the court found William to be a protected

       person, stating “the court has heard evidence on the [GAL’s] request for fees

       and petitioner’s request for attorneys’ fees all which hinge on this issue of is there an

       order of protection in place or not.” Tr. Vol. III p. 152 (emphasis added). The trial

       court found that William qualified as an incapacitated person and issued an

       order to protect his personal and financial interests. In addition to putting

       restrictions in place to protect William’s assets, the trial court appointed the

       GAL to act as an additional level of oversight over William and William’s

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 12 of 16
       property pending the resolution of the guardianship proceedings and ordered

       that Heidi, accompanied by the GAL, be granted the opportunity to visit

       William without interference from Michael.


[21]   In granting Heidi’s motion for attorney’s fees, the trial court considered whether

       William received a benefit from the actions taken by Heidi on his behalf.

       Specifically, the trial court found as follows:


               As of December 27, 2017, this court heard evidence on the
               motion to appoint GAL and granted the same. The court heard
               evidence on Petitioner’s request for visitation with her
               grandfather and granted the same. The court heard evidence
               over two days on the [j]oint [a]pplication to [p]rotect William[’s]
               … [a]ssets and granted the same. The court made these rulings
               over the objection of Michael … and the attorneys for William….
               The court heard limited evidence as to whether Michael …
               alienated other family members and received large sums of
               money from William … while acting as his attorney-in-fact. The
               court granted the [j]oint [a]pplication to [p]rotect William[’s] …
               [a]ssets, giving the GAL access to William[’s] … bank accounts
               and restricting cash withdrawals over $100.00 and other
               transactions over $1,500.00 without the prior approval of the
               GAL and the court.

               The order appointing GAL, the order for [v]isitation, and the
               temporary order to protect assets were issued for the sole benefit
               of William [ ], and he benefitted from these orders. Accordingly,
               Petitioner’s request for fees related to these matters is granted.
               The court understands the counter-argument that the financial
               restrictions provided little relief since William … passed away
               just nine days later. However, Indiana law merely requires a
               benefit to the protected person.



       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 13 of 16
       Appellant’s App. Vol. II p. 67. We will not reweigh the evidence with regard to

       the trial court’s determination that William benefitted from the proceedings.

       See Chavis v. Patton, 683 N.E.2d 253, 260 (Ind. Ct. App. 1997).


[22]   In granting Heidi’s request for attorney’s fees under Indiana Code section 29-3-

       9-9, the trial court determined that William qualified as a protected person

       under the guardianship statutes and issued an order meant to protect William

       and his property. Given the record before us, we conclude that the trial court

       had statutory authority under Indiana Code section 29-3-9-9(b) to order that

       expenses relating to the proceedings be paid by William’s estate. The trial court

       issued such an order. We cannot say that the trial court abused its discretion in

       this regard.


              II. Whether the December 18, 2017 Order was a
                             Protective Order
[23]   Appellants alternatively raise numerous arguments asserting that the trial

       court’s December 18, 2017 order, which set forth the protections for William

       and his property, did not qualify as protective order. Specifically, Appellants

       argue that a protective order cannot be a provisional order, that the December

       18, 2017 order does not include the word “protective,” and the December 18,

       2017 order does not specifically list findings detailing the factors included in

       Indiana Code section 29-3-4-1(d). Appellants, however, cite to no authority,

       and we are aware of none, supporting their position that a protective order

       cannot be provisional or that it must contain the word “protective.” As for

       Appellants’ third argument, the record reveals that the trial court issued a
       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 14 of 16
       number of orders regarding William’s incapacitation and the need for a

       protective order. The trial court’s orders regarding William’s inability to

       conduct his own legal affairs necessitating the oversight of the GAL and the

       appointment of a legal guardian read together with the December 18, 2017

       order make it clear that the trial court considered all of the factors listed in

       Indiana Code section 29-3-4-1(d) when issuing the protective order. As such,

       we are unpersuaded by Appellants’ argument.


                                 III. Bad Faith and Estoppel
[24]   We have previously concluded that a trial court “may not award fees to a party

       whose misconduct necessitated the proceedings.” Shaffer, 711 N.E.2d at 41.

       Appellants also argue that the trial court abused its discretion in granting

       Heidi’s request for attorney’s fees because misconduct by Heidi’s former

       counsel necessitated the proceedings. In making this argument, however,

       Appellants only point to misconduct which they claim occurred during a prior

       case and/or in proceedings that occurred before we issued our prior opinion

       that Heidi’s request for the appointment of a guardian was not barred by res

       judicata. See H.S., 66 N.E.3d at 627.


[25]   The parties have each accused the other side of less than optimal conduct at

       various points throughout the pendency of this case. However, in raising their

       claim on appeal, Appellants have pointed to no alleged misconduct by Heidi or

       her counsel since we remanded the case to the trial court for further

       proceedings. Heidi claims that Appellants’ argument in this regard is without


       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 15 of 16
       merit as they do “not actually identify any misrepresentation by Heidi or her

       counsel.” Appellee’s Br. p. 49. She further claims that Appellants’ arguments

       in this regard are “nothing more than a belated and impermissible collateral

       attack on this Court’s resolution of the first appeal, where [Appellants] had a

       full opportunity to raise the same argument [they are] now raising here.”

       Appellee’s Br. p. 50. The trial court found Appellants’ argument relating to the

       alleged misrepresentation by Heidi and her former counsel to be “borderline

       frivolous.” Tr. Vol. III p. 182. We agree and conclude that Appellants’ claims

       relating to bad faith and estoppel are without merit.


[26]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-GU-1032 | August 21, 2020   Page 16 of 16
