In re Guardianship of Hickman

• Decision Date: 26 March 2004
• Docket Number: No. 53A01-0211-CV-446.,53A01-0211-CV-446.
• Parties: In the Matter of the GUARDIANSHIP OF Josephine A. HICKMAN. Leo E. Hickman, Jr., Appellant-Respondent, v. Joseph D. Hickman, Appellee-Petitioner.
• Court: Indiana Appellate Court

805 N.E.2d 808

In the Matter of the GUARDIANSHIP OF Josephine A. HICKMAN.

Leo E. Hickman, Jr., Appellant-Respondent, v. Joseph D. Hickman, Appellee-Petitioner.

No. 53A01-0211-CV-446.

Court of Appeals of Indiana.

March 26, 2004.

Curtis E. Shirley, John R. Schaibley, III, Robert K. Stanley, Kathy L. Osborn, Baker & Daniels, Indianapolis, IN, Eric Allan Koch, Bloomington, IN, Attorneys for Appellant.

Edward O. Delaney, Peter J. Rusthoven, Bart A. Karwath, Mark J. Crandley, Barnes & Thornburg, Indianapolis, IN, Attorneys for Appellee.

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:

I. Whether the trial court abused its discretion by denying Leo's motion for change of judge;

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

III. 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, 2003), 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 eventually regained consciousness, she 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 litem. 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. The 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 139.

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 29-3-5-3(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 denied 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 38-39.

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. Leo argued that Nelson had "the ability to introduce admissible evidence, call and cross examine witnesses, but [did] not have the ability to testify on matters not involving admissible, personal knowledge. Her report is based on all levels of hearsay and involves conclusions on ultimate issues in this case that are reserved for the jury." Id. at 259-260. At the end of the trial, Nelson began to testify about her background. Id. at 298-299. Leo pointed out that he had "filed a Motion in Limine concerning her taking the stand and testifying in this case and presenting the Guardian Ad Litem's report." Id. at 299. Leo objected "to her taking the stand and testifying in this matter on anything and [reasserted his] Motion in Limine...." Id. The trial court denied Leo's objection, and Nelson then continued testifying regarding her background and her investigation of the matter. Nelson concluded as follows:

It is my recommendation that a guardian be appointed for both [Josephine's] person, I believe that there are healthcare decisions as this lady, this grand lady of seven (sic) continues to age, that there may need to be some healthcare decisions made. I think it is one thing to consent to medical treatment and it's another thing to meaningfully participate in a course of medical treatment[,] and I don't think she can do this at this point. I also believe that a guardian needs to be appointed for her estate. Mr. Delaney very kindly erased the estate plan there, but I think as Mr. Olson testified there are some decisions that need to be made in her best interests, whatever happens with the corporation and those need to be done now, and I don't believe that she can meaningfully participate in estate planning or the management of her funds.

Id. at 302. After Nelson had completed her testimony, Leo moved to strike the testimony "on the basis of all of the reasons mentioned in the Motion in Limine...." Id. at 303. Leo also argued that "the Guardian Ad Litem has made a purported expert opinion to this jury as to how they should conclude and how they should find and what they should rule on in this case and that is totally improper for any witness unless they...