In the Matter of the Guardianship of Jennie K. Moore, Adult Earl L. Moore v. Nancy J. Pruitt (Guardian) (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Mar 26 2019, 10:35 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Richard K. Milam Donald W. Shelmon
Lebanon, Indiana Rensselaer, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the March 26, 2019
Guardianship of Jennie K. Court of Appeals Case No.
Moore, Adult 18A-GU-2804
Interlocutory Appeal from the
Earl L. Moore, Jasper Circuit Court
The Honorable John D. Potter,
Appellant-Interested Person,
Judge
v. Trial Court Cause No.
37C01-1705-GU-491
Nancy J. Pruitt (Guardian),
Appellee-Petitioner.

Crone, Judge.

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 Case Summary
[1] Earl L. Moore brings this interlocutory appeal of the trial court’s denial of his

motion to transfer venue of the Guardianship of Jennie K. Moore (“the

Guardianship”) from Jasper County to Boone County. Concluding that the

trial court abused its discretion in declining to transfer venue of the proceeding

to Boone County, we reverse and remand with instructions to transfer.

Facts and Procedural History
[2] On May 30, 2017, Nancy Pruitt filed a petition to establish guardianship over

the person and estate of ninety-year-old Jennie K. Moore in the Jasper Circuit

Court. The petition alleged that Jennie is unable to maintain and care for her

person and financial affairs due to her advanced age. The petition alleged that

Jennie resides in a nursing home in Lebanon, which is in Boone County. The

petition further alleged that Pruitt resides in Boone County. The petition stated

that Jennie’s closest blood relative is her son Earl. On the same date the

petition for guardianship was filed, counsel for the Guardianship also filed a

consent to guardianship and to the appointment of Pruitt as guardian of

Jennie’s person and estate, signed by Earl. The petition for guardianship was

approved by the trial court and the Guardianship was established on June 7,

2017.

[3] In November 2017, Earl filed an appearance as an interested person in the

guardianship proceeding, and in December 2017 he filed a petition to remove

Pruitt as guardian and a withdrawal of his consent to guardianship. Thereafter,

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 on April 3, 2018, Earl filed a motion to transfer venue of the guardianship

proceeding to Jennie’s county of residence, Boone County. The trial court held

a hearing regarding venue on April 18, 2018, and subsequently denied Earl’s

motion to transfer. After numerous continuances of several other motions filed

by the parties, on November 4, 2018, Earl filed a second motion to transfer

venue to Boone County. Concluding that, in consenting to the guardianship

petition filed in Jasper Circuit Court, Earl had consented to the Jasper Circuit

Court’s exercise of jurisdiction over the guardianship proceeding, the trial court

denied the motion to transfer venue. This interlocutory appeal ensued.

Discussion and Decision
[4] Earl asserts that the trial court abused its discretion in declining to transfer

venue of the guardianship proceeding from Jasper County to Boone County.

We agree.

[5] A trial court’s order on a motion to transfer venue is an interlocutory order and

is reviewed under an abuse of discretion standard. In re Adoption of W.M., 55

N.E.3d 386, 387 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion

occurs if the trial court’s decision is clearly against the logic and effect of the

facts and circumstances before the court, or if the trial court has misinterpreted

the law. Id. We review any factual findings on an appeal from a ruling on a

motion for transfer of venue for clear error and review conclusions of law de

novo. Arkla Indus., Inc. v. Columbia St. Partners, Inc., 95 N.E.3d 194, 196 (Ind.

Ct. App. 2018), trans. denied.

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[6] As a general matter, Indiana Trial Rule 75(A) governs venue requirements in

Indiana. Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006).

The procedure in probate, however, is separate and distinct from the procedure

for civil proceedings prescribed in the trial rules. MacLeod v. Guardianship of

Hunter, 671 N.E.2d 177, 178 (Ind. Ct. App. 1996), trans. denied (1997). “It is

only where the probate code does not provide an adequate and complete mode

of procedure that it is proper to resort to the rules of pleading and practice

applicable to civil actions.” Id. Regarding guardianship proceedings, Indiana

Code Section 29-3-2-2 provides an adequate and complete mode of procedure

for determining the proper county of venue. Id. at 178-79. Specifically, Indiana

Code Section 29-3-2-2(a)(1)(A) provides that the venue for the appointment of a

guardian or for protective proceedings, if the alleged incapacitated person or

minor resides in Indiana, is in the county where the alleged incapacitated

person or minor resides.1

[7] Accordingly, here, proper venue for the guardianship proceeding is restricted to

the county where Jennie resides, which is Boone County. In twice denying

Earl’s requests to transfer venue to Boone County, the trial court apparently

confused the legal concepts of jurisdiction and venue. As this Court has

recognized, jurisdiction involves a court’s power to hear a particular group of

cases; venue, on the other hand, connotes the proper situs for the trial of an

1
Indiana Trial Rule 75(A)(8) recognizes the existence of statutes that specify a preferred venue. MacLeod,
671 N.E.2d at 179; In re Trust Created Under Agreement Dated Sept. 19, 1983, By Johnson, 469 N.E.2d 768, 772
(Ind. Ct. App. 1984), trans. denied (1985).

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 action. Cabanaw v. Cabanaw, 648 N.E.2d 694, 697 (Ind. Ct. App. 1995). These

concepts are not interchangeable, and one cannot be used as a substitute for the

other. Id. Relying on In re B.J.N., 19 N.E.3d 765 (Ind. Ct. App. 2014), the trial

court concluded that a person who consents to the appointment of the guardian

in a particular court, as Earl did here, waives any objection to that court’s

exercise of jurisdiction over the proceeding. Id. at 769. However, the Jasper

Circuit Court’s jurisdiction over the guardianship proceeding is not at issue, and

therefore B.J.N. is not controlling. Indeed, it is well settled that the filing of a

case in a county in which venue does not properly reside does not divest the

trial court of subject matter jurisdiction. In re Adoption of L.T., 9 N.E.3d 172,

177 (Ind. Ct. App. 2014) (citing State ex rel. Knowles v. Elkhart Circuit Court, 256

Ind. 256, 258, 268 N.E.2d 79, 80 (1971)). Still, the fact that the Jasper Circuit

Court has the authority to hear this case and to properly issue orders thus far

has nothing to do with whether venue can and should be transferred to Boone

County.

[8] Our thorough review of the record reveals that, in declining to transfer venue to

Boone County, the trial court improperly focused on its jurisdiction, which, as

we stated above, is not at issue. The trial court also improperly focused on the

timing of Earl’s request to transfer venue, with the Guardianship having

seemingly convinced the court that the time for it to consider and/or reconsider

the issue had long passed. To the contrary, our legislature has made clear that

proper venue in a guardianship proceeding remains an important consideration

by the trial court throughout the pendency of the guardianship. Indiana Code

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 29-3-2-2(c) instructs in relevant part that if it appears to the court “at any time”

that: “(1) the proceeding was commenced in the wrong county; … or (4) it

would be in the best interest of the incapacitated person or the minor and the

property of the minor or the incapacitated person; the court may order the

proceeding … transferred to another court in Indiana.” (Emphasis added.) The

Jasper Circuit Court has been notified that this proceeding was unquestionably

commenced in the wrong county. Furthermore, because Jennie, the bulk of her

assets, and Pruitt are all located in Boone County, it is patently clear that it

would be in the best interest of Jennie and her property that the proceeding be

transferred to Boone County.2 In short, we can think of no reason why this case

should not be transferred.

[9] Under the circumstances presented, we conclude that the trial court abused its

discretion in declining to transfer venue of the guardianship proceeding to

Boone County. Therefore, we reverse and remand to the trial court with

instructions to “order the proceeding, together with all papers, files, and a

certified copy of all orders,” transferred to Boone County as provided by

Indiana Code Section 29-3-2-2(c).

2
We find it significant that, during a hearing conducted by the trial court, counsel for the Guardianship
conceded that neither Jennie nor her property, nor Pruitt have any connection to Jasper County. He offered
no explanation for why he filed the petition for guardianship in Jasper County despite the clear direction of
the probate code that the proceeding be filed in Jennie’s county of residence.

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[10] Reversed and remanded.

Vaidik, C.J., and Mathias, J., concur.

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