Hickman v. Hickman

805 N.E.2d 808, 2004 Ind. App. LEXIS 486, 2004 WL 595243
CourtIndiana Court of Appeals
DecidedMarch 26, 2004
DocketNo. 53A01-0211-CV-446
StatusPublished
Cited by21 cases

This text of 805 N.E.2d 808 (Hickman v. Hickman) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hickman v. Hickman, 805 N.E.2d 808, 2004 Ind. App. LEXIS 486, 2004 WL 595243 (Ind. Ct. App. 2004).

Opinion

OPINION

SHARPNACK, Judge.

Leo E. Hickman, Jr., ("Leo") appeals the trial court's grant of a petition for guardianship over the person and estate of Josephine A. Hickman ("Josephine") filed by Joseph D. Hickman ("Joseph"). Leo raises three issues, which we restate as:

[811]*811Whether the trial court abused its discretion by denying Leo's motion for change of judge;

Whether the trial court erred by denying Leo's request for a jury trial in the guardianship proceeding; and

Whether the trial court abused its discretion by admitting certain testimony of the guardian ad litem.

We affirm.

The relevant facts follow. This is the second in a series of three appeals from a contentious family dispute over the guardianship of Josephine. See In re Hickman, No. 53A01-0208-CV-328, 792 N.E.2d 106, mem. op. (Ind.Ct.App. July 17, 2008), and Hickman v. Irwin Union Bank, No. 53A01-0306-CV-220 (appeal pending).1 In February 1988, Josephine fell and hit her head on a concrete driveway, resulting in a severe head injury. Although she she eventually regained consciousness, never regained her full mental capacity. Josephine is now in her eighties and resides in a comprehensive care unit of the Meadowood retirement community in Bloomington, Indiana. Josephine frequently fails to recognize the Meadowood staff and her physician and does not always recognize her children. She is unable to perform basic daily hygiene tasks or take her medicine without assistance. Because Josephine has violent episodes in which she throws objects or attempts to hit people, she is not allowed to eat her meals with the other residents and is restricted from participating in social activities with the other residents.

Prior to her accident, Josephine ran Hoosier Outdoor Advertising Corporation ("Hoosier Outdoor"), which is a family-owned corporation located in Bloomington, Indiana. Josephine's seven children, Leo, Joseph, Ruth Hickman, Jamie Hickman Thompson, Paul Hickman, Richard Hickman, and John Hickman, were shareholders, as well as officers or directors, in Hoosier Outdoor. Leo, Jamie, and Joseph each worked at Hoosier Outdoor, and Leo was vice-president.

On July 19, 2001, Leo visited Josephine in her nursing home and obtained her signature on documents purporting to transfer enough shares of voting stock to give Leo control of Hoosier Outdoor. On that same day, Leo removed his siblings as officers and directors of Hoosier Outdoor and replaced them with his wife and daughter. In March 2002, Leo also terminated Joseph's and Jamie's employment at Hoosier Outdoor.

On August 1, 2001, Joseph filed a petition for appointment of a temporary guardian over Josephine's person and estate, and Leo objected to the petition. The trial court appointed attorney Susan H. Nelson as Josephine's guardian ad li-tem. On January 22, 2002, Nelson filed a written report with the trial court recommending that a guardian be appointed for Josephine's person and estate. Nelson recommended that Joseph be appointed guardian of Josephine's person and a bank or other institution having a trust department be appointed guardian of Josephine's estate. On March 19, 2002, Joseph filed a petition for appointment of a permanent guardian of Josephine's person and estate. [812]*812The petition listed Leo as one of the persons most closely related to Josephine, and notice of the petition was sent to Leo through his counsel. On March 21, 2002, Leo filed a written response to Joseph's petition and requested "trial by Jury on all issues and matters raised in the guardianship petition and counterclaim." Appellant's Appendix at 189.

On June 25, 2002, Joseph filed "Verified Motion for Temporary Restraining Order and Injunction Preventing Pending Cancellation of Health Insurance." Id. at 146. On the same day, the trial court granted the temporary restraining order without notice to Leo or his attorneys and set a hearing date for Joseph's request for a preliminary injunction. The trial court also entered an order granting all interested parties forty-eight hours in which to respond to the request. Soon thereafter, Leo filed a motion for change of judge, alleging in part that the order granting the temporary restraining order was an ex parte communication and that the order violated Ind. Trial Rule 65. The trial court denied Leo's motion for change of judge and granted Joseph's motion for a preliminary injunction.2

The trial court set Joseph's petition for permanent guardianship for trial with an advisory jury. Leo objected to the use of an advisory jury and to the trial court's denial of his jury demand. At the beginning of the trial, the trial court denied Leo's objection on the record and later issued the following written order:

[Leo] is not a party to this action. The only parties in a guardianship case are the petitioner and the person who is named as a person who is in need of a guardian due to his or her incapacitation. The right to a trial by jury is available to the alleged incapacitated person. It is not available to the petitioner nor is it available to a person who is permitted by the court to participate in the proceedings.
[Leo] became involved in this cause without requesting prior permission from the court. The statute is clear that persons other than the petitioner and the alleged incapacitated person must request participation, and persons who are permitted to participate can do so only as authorized by the court.
The right to a trial by jury in a guardianship proceeding is found in the guardianship statute and not in the Constitutions of the United States or the State of Indiana. Guardianship proceedings are equitable in nature.
If there is a request for a jury trial by the alleged incapacitated person, the jury can only decide whether the person is incapacitated and whether the appointment of a guardian is necessary to assist the person in the care of the person's physical person and/or his property.
[Leo's] insistence that the jury should determine who should be the guardian is without merit. IC 20-3-5-3(a) clearly states that the court shall appoint the guardian. There is no language in the guardianship statutes that make any reference to the jury deciding who should be the guardian of the physical person or of the property of an incapacitated person. IC 29-3-5-4 provides a list of persons with priority to serve as a guardian, and the court is required to select a guardian from that list.
At the beginning of the jury trial that began on September 3, 2002, the court [813]*813denied the instant motion on the record. Despite the court's ruling, [Leo's] counsel continued to object to what he terms "the court's unilateral decision" at various times throughout the course of the four-day jury trial.
It is clear that [Leo] had no right to a jury trial in this cause. The court stated at the pretrial conference on July 24, 2002 that the jury would be an advisory jury. [Leo] and his counsel were present at the pretrial conference. Trial Rule 39(B) permits the court to have an advisory jury when the request for a jury is made by a party with no right to a jury.

Id. at 38-89.

On the first day of the trial, Leo filed a motion in limine regarding "the guardian ad litem's report and recommendation." Id. at 259.

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Cite This Page — Counsel Stack

Bluebook (online)
805 N.E.2d 808, 2004 Ind. App. LEXIS 486, 2004 WL 595243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickman-v-hickman-indctapp-2004.