In the Matter of the Guardianship of M.B., Mariea L. Best v. Russell C. Best (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 16, 2015
• Docket: 06A01-1408-GU-355
• Status: Published

Opinion

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