Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020 Page 1 of 12

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Lisa M. Dillman

Dillman Law Group

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Janette E. Surrisi

James N. Clevenger

Wyland, Humphrey, Clevenger & 

Surrisi, LLP

Plymouth, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In re the Guardianship of 

Benjamin Jack, an Incapacitated 

Person, 

Alex Jack (Father), 

Appellant-Defendant,

v. 

Christine Jack (Mother),

Appellee-Plaintiff. 

February 14, 2020

Court of Appeals Case No.

19A-GU-2079 

Appeal from the Marshall Circuit 

Court

The Honorable Curtis Palmer, 

Judge

Trial Court Cause No.

50C01-1904-GU-16 

Brown, Judge. 
Court of Appeals of Indiana | Memorandum Decision 19A-GU-2079 | February 14, 2020 Page 2 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 coguardian.” 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 3 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 coguardians, 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 4 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 copetitioner 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 coguardians 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 coguardians. 

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

[21] Affirmed.

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