MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
                                                                         Feb 14 2020, 9:00 am
court except for the purpose of establishing
the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Dillman                                          Janette E. Surrisi
Dillman Law Group                                        James N. Clevenger
Indianapolis, Indiana                                    Wyland, Humphrey, Clevenger &
                                                         Surrisi, LLP
                                                         Plymouth, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Guardianship of                                February 14, 2020
Benjamin Jack, an Incapacitated                          Court of Appeals Case No.
Person,                                                  19A-GU-2079
Alex Jack (Father),                                      Appeal from the Marshall Circuit
                                                         Court
Appellant-Defendant,
                                                         The Honorable Curtis Palmer,
        v.                                               Judge
                                                         Trial Court Cause No.
Christine Jack (Mother),                                 50C01-1904-GU-16

Appellee-Plaintiff.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020                 Page 1 of 12
[1]   Alex Jack (“Father”) appeals the trial court’s order naming him and Christine

      L. Jack (“Mother”) as co-guardians of their son, Benjamin. We affirm.


                                      Facts and Procedural History

[2]   Mother and Father had a son, Benjamin, who was born on July 17, 2001, and

      suffers from Autistic Spectrum Disorder. In April 2017, the marriage of Mother

      and Father was dissolved, and they agreed to joint legal custody with Father

      having primary physical custody.


[3]   On April 5, 2019, Mother filed a Petition for Appointment of Guardian Over

      Person and Estate of an Incapacitated Minor, Soon to Be Age of Majority. The

      petition sought to “extend [Mother’s] rights and obligations of joint legal

      custody with this petition which may include appointment of [Father] as co-

      guardian.” Appellant’s Appendix Volume II at 78. A chronological case

      summary entry dated April 10, 2019, indicates that Attorney Edward Ruiz filed

      an appearance on behalf of Father and his current wife, Natalie Jack

      (“Natalie”). On April 10, 2019, Father and Natalie filed a counter-petition

      seeking an order appointing them as Benjamin’s guardians.


[4]   On June 25, 2019, the court held a hearing. When asked by the court if Father

      and Natalie wanted to be co-guardians excluding Mother as a guardian,

      Father’s counsel answered, “Correct.” Transcript Volume II at 3.


[5]   Mother testified that Benjamin would turn eighteen in July, she and Father

      always wanted him to be as independent as possible, and reports from Marshall

      Starke Center indicated that Benjamin wished to be in a more independent

      Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 2 of 12
      setting such as a group home. She testified that, based on the last meeting she

      attended, Benjamin seemed to be ready to make that step and graduated from

      high school a couple weeks earlier. When asked to describe her objection to

      Natalie being appointed as a co-guardian, Mother stated that Father and

      Natalie had been married for a little over a year and she did not feel Natalie had

      been in Benjamin’s life “long enough to make those decisions for him in place

      of his mother.” Id. at 11. She testified that she exercised visitation with

      Benjamin on a regular basis, scheduled activities for him, and met with his case

      manager, recreational therapist, and his new behavioral therapist.


[6]   Father testified he obtained custody of Benjamin two years earlier, he did not

      believe Benjamin was ready to transition to a group home, and Mother had

      little to no communication with service providers and had not been proactive.

      When asked if he was requesting the court to appoint him and Natalie as co-

      guardians, he answered affirmatively. He indicated he did not feel he and

      Mother could be effective co-guardians because she does not take initiative or

      offer any feedback or input. He testified he is a reservist assigned to Grissom

      Air Reserve Base and Mother’s lack of commitment would concern him if he

      were again deployed and she was left in charge as guardian. When asked if he

      thought Mother had the track record to show she could follow through on

      Benjamin’s behalf, Father answered: “Anything that I’ve asked her to do she

      has done.” Id. at 31. On cross-examination, Father testified he was deployed

      three times prior to the dissolution and, during those times, Mother took care of

      Benjamin. Natalie testified she was very involved with Benjamin’s services, she


      Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 3 of 12
      was willing to act as Benjamin’s guardian if Father were deployed, and Mother

      was not proactively involved in Benjamin’s life.


[7]   On rebuttal, Mother testified that she told Father and Natalie she would take

      Benjamin to a doctor’s appointment anytime and they just needed “to let [her]

      know what’s going on.” Id. at 56. She testified that she talked to Father about

      placing Benjamin on Accutane, she expressed her opinion, and they agreed on

      the medication. She stated she went to Benjamin’s IEP meeting, met with his

      teacher, and responded to the teacher’s emails.


[8]   On June 28, 2019, the court entered an order appointing Father and Mother as

      co-guardians of Benjamin. The court’s order states in part:


              1. Benjamin Jack was born July 17, 2001, and is currently
              seventeen years of age.

              2. Benjamin Jack, currently a minor, is a resident of Marshall
              County, Indiana, residing with his father and stepmother . . . .

              3. Benjamin Jack is incapable of handling his personal and
              financial affairs due to his current minority status and his lifelong
              developmental limitations due to his autism. He is found to be
              an incapacitated person.

              4. Benjamin’s parents divorced in 2017 and agreed [Father]
              would have primary physical custody and they would share joint
              legal custody.

              5. [Father] has since remarried [to] Natalie Jack, the co-
              petitioner in the counter petition filed herein. They both wish to
              become co-guardians of Benjamin, to the exclusion of [Mother].

              6. [Mother] seeks to become a co-guardian of Benjamin along
              with [Father] to the exclusion of the step-mother, Natalie Jack.
      Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 4 of 12
        7. IC 29-3-5-5 establishes a priority the court may follow when
        selecting guardians. Natural parents share the same priority and
        are slightly above step-parents in priority.

        8. Mother and [Father] both live in Plymouth and both have
        maintained regular contact with Benjamin even after the divorce.

                                             *****

        10. [Father] is in the military reserves and is concerned that if
        called to active duty, he would be unable to perform his duties as
        a co-guardian while deployed. He feels stepmother, Natalie Jack,
        as a co-guardian, would be in a better position to direct the care
        for Benjamin instead of his mother.

        11. Although the court finds [Father’s] concerns to be
        reasonable, there is no evidence that [Mother] would not be able
        to direct the care for Benjamin if needed to do so. She is familiar
        with his therapists, medications and routines and would have the
        ability to contact the stepmother if additional information were
        needed.

        12. While the court recognizes there is some friction between
        [Mother] and the stepmother, it does not appear to rise to the
        level that either of them would fail to communicate with one
        another when Benjamin’s best interests are at stake.

                                             *****

        14. [Mother] has been familiar with Benjamin’s special needs for
        eighteen years. The stepmother has been aware of Benjamin’s
        special needs for eighteen months. The court finds no basis for
        excluding [Mother] as a co-guardian for her son.

        15. All of the requirements for the appointment of a guardian as
        set forth in the Indiana Code have been satisfied and [Father] and
        [Mother] are entitled to be co-guardians of the person and estate
        of Benjamin Jack and are so appointed without limitation as to


Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 5 of 12
               their duties, responsibilities, or powers as set out in IC §§ 29-3-8-
               1, 29-3-8-2 and 29-3-8-4.

               16. The ward has no significant property or income.

               17. The co-guardians need not post a bond nor are they required
               to file an inventory of current assets. Biennial reports shall be
               required pursuant to the probate code.


       Appellant’s Appendix Volume II at 85-88.


[9]    On July 29, 2019, Attorney Lisa Dillman filed an appearance on behalf of

       Father. That same day, Father filed a Motion to Reconsider or in the

       Alternative a Motion to Correct Errors and attached the Marriage Settlement

       Agreement, Father’s affidavit, and a letter from Quinn Selner, Benjamin’s

       teacher. In the motion, Father asked the court to appoint him as sole guardian

       and designate Mother and Natalie as standby guardians. In part, Father argued

       that “[t]he issue or problem arises when Father, as Guardian, needs to make a

       decision . . . with which Mother does not agree.” Id. at 97-98.


[10]   On August 6, 2019, Mother filed a Motion to Strike Supplemental Documents

       to Motion to Reconsider and Motion to Correct Errors. On August 7, 2019, the

       court granted Mother’s motion to strike the proffered additional evidence and

       denied Father’s motion to reconsider or correct error.


                                                   Discussion

[11]   The issue is whether the trial court abused its discretion in naming Father and

       Mother as co-guardians. Father argues the trial court failed to select the best

       qualified person and that Ind. Code § 29-3-5-5(b) requires the court to appoint a
       Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 6 of 12
       single person as guardian. He asserts that while the court found no basis for

       excluding Mother as a co-guardian, such an analysis does not constitute the test

       for selecting a guardian. He contends the court disregarded the prior custody

       determination which demonstrated it was in Benjamin’s best interest that he be

       appointed sole guardian. Mother argues Father waived his argument regarding

       a sole guardian, Ind. Code § 29-3-5-4 provides the court may appoint persons as

       co-guardians, and the court heard evidence supporting its conclusion that she

       should be named as co-guardian.


[12]   The trial court is vested with discretion in making determinations as to the

       guardianship of an incapacitated person or minor. In re Guardianship of A.L.C.,

       902 N.E.2d 343, 352 (Ind. Ct. App. 2009). This discretion extends to both its

       findings and its order. Id. We apply the abuse of discretion standard to review

       the trial court’s findings and order. Id. Because the court set forth findings, we

       look to those findings to determine whether the court abused its discretion. See

       id. The findings will not be set aside unless clearly erroneous. Id. Findings are

       clearly erroneous when the record lacks any facts or reasonable inferences to

       support them. Id. Further, we will not set aside the judgment unless clearly

       erroneous. Id. A judgment is clearly erroneous when unsupported by the

       findings of fact and conclusions thereon. Id.


[13]   The guardianship statutes provide for the appointment of guardians for minors

       or incapacitated persons. See Ind. Code § 29-3-5-1. Ind. Code §§ 29-3-5 set

       forth proceedings for the appointment of a guardian, and Ind. Code § 29-3-5-3

       provides that, if it is alleged and the court finds that the individual for whom the

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 7 of 12
       guardian is sought is an incapacitated person or a minor and the appointment of

       a guardian is necessary as a means of providing care and supervision of the

       physical person or property of the incapacitated person or minor, the court shall

       appoint a guardian under the chapter.


[14]   Ind. Code § 29-3-5-4 is titled “Considerations for appointment of guardian” and

       provides:


               The court shall appoint as guardian a qualified person or persons
               most suitable and willing to serve, having due regard to the
               following:

                       (1) Any request made by a person alleged to be an
                       incapacitated person, including designations in a durable
                       power of attorney under IC 30-5-3-4(a).

                       (2) Any request made for a minor by:

                                (A) a parent of the minor; or

                                (B) a de facto custodian of the minor, including a
                                designation in a power of attorney under IC 30-5-3-
                                4(b) or IC 30-5-3-4(c).

                       (3) Any request contained in a will or other written
                       instrument.

                       (4) A designation of a standby guardian under IC 29-3-3-7.

                       (5) Any request made by a minor who is at least fourteen
                       (14) years of age.

                       (6) Any request made by the spouse of the alleged
                       incapacitated person.

                       (7) The relationship of the proposed guardian to the
                       individual for whom guardianship is sought.
       Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 8 of 12
                        (8) Any person acting for the incapacitated person under a
                        durable power of attorney.

                        (9) The best interest of the incapacitated person or minor
                        and the property of the incapacitated person or minor.


[15]   Ind. Code § 29-3-5-5 is titled “Considerations for appointment of guardian;

       order of consideration; priorities” and provides:


               (a) The following are entitled to consideration for appointment as
               a guardian under section 4 of this chapter in the order listed:

                        (1) A person designated in a durable power of attorney.

                        (2) A person designated as a standby guardian under IC
                        29-3-3-7.

                       (3) The spouse of an incapacitated person.

                       (4) An adult child of an incapacitated person.

                       (5) A parent of an incapacitated person, or a person
                       nominated by will of a deceased parent of an incapacitated
                       person or by any writing signed by a parent of an
                       incapacitated person and attested to by at least two (2)
                       witnesses, or in a power of attorney of a living parent of an
                       incapacitated person under IC 30-5-3-4(c).

                       (6) A parent of a minor, a de facto custodian of a minor, or
                       a person nominated:

                                (A) by will of a deceased parent or a de facto
                                custodian of a minor; or

                                (B) by a power of attorney of a living parent or a de
                                facto custodian of a minor.

                       (7) Any person related to an incapacitated person by blood
                       or marriage with whom the incapacitated person has
       Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 9 of 12
                        resided for more than six (6) months before the filing of the
                        petition.

                        (8) A person nominated by the incapacitated person who is
                        caring for or paying for the care of the incapacitated
                        person.

               (b) With respect to persons having equal priority, the court shall
               select the person it considers best qualified to serve as guardian.
               The court, acting in the best interest of the incapacitated person
               or minor, may pass over a person having priority and appoint a
               person having a lower priority or no priority under this section.


[16]   To the extent Father argues on appeal that the court abused its discretion by

       appointing him and Mother as co-guardians and could have appointed only one

       individual as guardian, we observe that the April 10, 2019 counter-petition filed

       by Father and Natalie asserted that “it is necessary that [Father] and Natalie

       Jack be appointed guardians for [Benjamin] in order to provide for his care,

       custody, support, maintenance” and requested an order “[a]ppointing [Father]

       and Natalie [Jack] as the guardians of the person and estate of” Benjamin.

       Appellant’s Appendix Volume II at 82. Further, at the hearing, Father

       indicated multiple times that he was seeking a co-guardianship with Natalie.

       During closing argument, Father’s counsel asserted that the best option would

       be to appoint Father and Natalie as co-guardians. We conclude Father has

       waived the argument that the trial court’s discretion was limited to appointing

       only one guardian. Waiver notwithstanding, we cannot say that the trial court

       abused its discretion.




       Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 10 of 12
[17]   When interpreting a statute, we independently review a statute’s meaning and

       apply it to the facts of the case under review. Bolin v. Wingert, 764 N.E.2d 201,

       204 (Ind. 2002). If a statute is unambiguous, we must give the statute its clear

       and plain meaning. Id. A statute is unambiguous if it is not susceptible to more

       than one interpretation. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939,

       942 (Ind. 2001). If a statute is susceptible to multiple interpretations, we must

       try to ascertain the legislature’s intent and interpret the statute so as to

       effectuate that intent. Bolin, 764 N.E.2d at 204. We presume the legislature

       intended logical application of the language used in the statute, so as to avoid

       unjust or absurd results. Id. A statute should be examined as a whole, avoiding

       excessive reliance upon a strict literal meaning or the selective reading of

       individual words. Mayes v. Second Injury Fund, 888 N.E.2d 773, 776 (Ind. 2008).

       “To effectuate legislative intent, we read the sections of an act together in order

       that no part is rendered meaningless if it can be harmonized with the remainder

       of the statute.” Young v. Hood’s Gardens, Inc., 24 N.E.3d 421, 425 (Ind. 2015)

       (quoting City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007) (internal

       citation omitted)).


[18]   While Ind. Code § 29-3-5-5(b) provides in part that “[w]ith respect to persons

       having equal priority, the court shall select the person it considers best qualified

       to serve as guardian,” Ind. Code § 29-3-5-4 explicitly provides that “[t]he court

       shall appoint as guardian a qualified person or persons most suitable and willing

       to serve, having due regard to the following . . . .” (Emphasis added). We

       cannot say that the court abused its discretion by appointing co-guardians. See

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 11 of 12
       In re Guardianship of Atkins, 868 N.E.2d 878, 884 (Ind. Ct. App. 2007) (“Based

       upon the evidence presented, the trial court did not abuse its discretion when it

       found that it was in Patrick’s best interest to appoint the Atkinses as co-

       guardians of his person.”), reh’g denied, trans. denied.


[19]   With respect to Mother’s appointment, we note that Ind. Code § 29-3-5-5

       establishes a priority for parents. The court found no evidence that Mother

       would be unable to direct the care for Benjamin if she needed to do so. It also

       found that Mother was familiar with his therapists, medication, and routines,

       would have the ability to contact the stepmother if additional information was

       needed, and that Mother had been familiar with Benjamin’s needs for eighteen

       years. Based upon the evidence and testimony presented, we cannot say the

       trial court abused its discretion in appointing Father and Mother as co-

       guardians.


[20]   For the foregoing reasons, we affirm the order of the trial court.


[21]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020   Page 12 of 12
