MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 29 2016, 9:26 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Philip C. Sheward Thomas N. Leslie Dawn E. Wellman Indianapolis, Indiana Josh Van Gorkom Allen Wellman McNew Harvey, LLP Greenfield, Indiana
IN THE COURT OF APPEALS OF INDIANA
Roger A. Andrick, April 29, 2016 Appellant-Petitioner, Court of Appeals Cause No. 33A04-1508-DR-1211 v. Appeal from the Henry Circuit Court Angela L. Andrick, The Honorable Kit C. Dean Crane, Appellee-Respondent. Judge Trial Court Cause No. 33C02-0611-DR-157
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 1 of 28 Case Summary [1] Roger Andrick (“Father”) appeals the trial court’s denial of his petition to
modify custody of his son, N.M. We affirm in part and remand in part.
Issues [2] The issues before us are:
I. whether the trial court’s findings and conclusions regarding Father’s modification request are clearly erroneous; and
II. whether the trial court properly ordered Father to pay a large percentage of Mother’s attorney fees.
Facts [3] N.M. was born in 1999. Father is not N.M.’s biological father, but he adopted
N.M. in 2004. Angela Andrick (“Mother”) and Father were together for
approximately four years and were married for two years before their divorce
was finalized in January 2007. Mother originally was granted primary physical
custody of N.M. and Father was allowed “reasonable” visitation. App. p. 11.
Father filed two petitions to modify custody, one in January 2010 and the
second in December 2011. Following the second petition to modify, the parties
reached a mediated settlement regarding custody that provided Mother with
continuing primary physical custody. However, Father was granted a
substantially increased amount of parenting time, including increased weekend
and summer visitation, totaling 150 overnights per year.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 2 of 28 [4] This new parenting arrangement began in May 2012, at the end of N.M.’s sixth-
grade year. During sixth grade, N.M. earned four As, two Bs, and one C; he
also was absent a total of ten days. N.M.’s grades and attendance declined
somewhat in seventh grade, the 2012-13 school year. His grades included some
Ds and Fs, but also several As; he was absent for twenty-one-and-one-half days.
Between seventh and eighth grade, Mother moved from the Perry Township to
Franklin Township school districts in Marion County. During N.M.’s eighth
grade year, 2013-14, his grades consisted of several Ds and Cs as well as some
As and Bs. He was absent a total of approximately twenty-one days.
[5] Toward the end of that school year, in May 2014, Mother’s father became
seriously ill. Mother assisted in her father’s care, and N.M. also spent much
time with his ailing grandfather. N.M. missed some additional school time in
the fall of 2014, but Mother arranged to pick his homework up from school on
those days. Mother’s father passed away in early December 2014.
[6] N.M.’s grades at the end of his first semester in high school included an F, 3 Cs,
a D, a B, and an A. N.M. also missed a large amount of school time during the
first semester, especially in the second quarter, when he missed approximately
fifteen days. Many of these absences were related to the illness and death of
Mother’s father and were excused by the school. In January 2015, Mother had
a discussion with a school counselor regarding N.M.’s grades and it was
discovered that, although N.M. completed much of his homework, he was
failing to turn it in, which had a large negative impact on his grades. After this
meeting, N.M. turned in his homework more frequently. His grades at the end
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 3 of 28 of his freshman year included two Bs, a C, C+, B-, and one A. His attendance
also was greatly improved in the second semester.
[7] In September 2014, Father contacted the Indiana Center for Children and
Families (“ICCF”) for a referral for counseling services for N.M. because of
what Father believed was N.M.’s conflict with other children living in Mother’s
home—namely the children of Mother’s live-in fiancé, G.G. and B.G.—and
N.M.’s alleged unhappiness in that home. ICCF referred N.M. to counseling
with Jessica Buescher, to which Mother agreed. N.M. had a number of
appointments with Buescher in the fall of 2014. Buesher diagnosed N.M. with
“adjustment disorder,” after N.M.’s discussion of wanting to hit G.G. and not
coping well with stress. Ex. 2, p. 33. Buescher believed this disorder likely
arose after Mother and Father’s divorce. N.M. also repeatedly discussed with
Buescher his desire to live with Father and his belief that Mother was not
emotionally supportive. N.M. also described a lack of connection with
Mother’s fiancé. After Father filed his petition to modify custody on November
13, 2014, N.M. reiterated his desire to live with Father, and also mentioned a
“loopy” person living in Mother’s house at that time, which caused him
additional stress. Ex. 2, p. 24. This person was a recovering alcoholic and
longtime friend of Mother’s. However, Mother’s communication with N.M.
also was improving at this time.
[8] At an appointment in December 2014 after Father filed his custody
modification petition, Buescher attempted to encourage N.M. to discuss his
wishes regarding custody modification with Mother present. Mother responded
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 4 of 28 that she did not believe it was appropriate to discuss custody in that setting in
light of Father’s petition to modfiy, and she terminated the counseling sessions
with Buescher thereafter. On December 22, 2014, Buescher wrote a report
stating in part,
Per this therapist’s, [sic] recommendation [N.M.]’s overall emotional, physical, and mental health needs are being met at both parents homes on different levels based on their circumstances. [N.M.] is not in harm in either home. It is solely based on [N.M.]’s preference that he live with his adoptive father over his mother. At this time, this therapist cannot make a determination about the best placement in either home.
Ex. 2, p. 21.
[9] On March 9, 2015, the trial court appointed a guardian ad litem (“GAL”) to
investigate the case and represent N.M.’s interests. The GAL met with N.M.
several times in each parent’s home. The GAL filed a report on July 2, 2015,
but did not testify at the change of custody hearing. N.M. told the GAL that
his biggest difficulties living with Mother were “drama” and lack of privacy.
App. p. 42. N.M. described the “drama” in Mother’s home as arising from
frequent conflicts between Mother and G.G., such as shouting matches lasting
ten to twenty minutes, two to three times a week. The lack of privacy was
related to G.G., and G.G.’s little brother B.G. when he is at the home, walking
into N.M.’s room unannounced. The GAL and N.M. discussed the fact that
moving in with Father would require N.M. to transfer from Franklin Central to
Fishers High School; N.M. indicated that would be acceptable to him, given
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 5 of 28 that he already knows some friends who attend Fishers, and that spending more
time on the weekends with Mother actually would allow him to spend more
time outside school with his Franklin Central friends. The GAL discussed with
N.M. and Father the fact that Father’s job requires him to leave home well
before N.M. leaves for school, and whether that would be a potential problem
given N.M.’s past attendance issues. N.M. said he would be able to walk the
four blocks from Father’s home to Fishers High School if he missed the bus.
The GAL also related in her report N.M.’s wishes regarding custody:
The GAL does not as a rule ask children “where they want to live.” However, it became apparent that [N.M.] has had a clear idea on what he wanted and the GAL asked him about his ideas about his parenting plan. [N.M.] indicated that he would like to “flip-flop” the current parenting arrangement such that he would be with Father from Sunday evening through Thursday after school and every fourth weekend and with Mother every Thursday overnight and for 3 consecutive weekends from Friday after school to Sunday evening.
App. p. 53.
[10] The GAL also discussed conditions at Mother’s house. The GAL believed
much of the house smelled of animal urine, which Mother blamed on G.G.’s
failure to clean the litter box as frequently as he was supposed to as part of his
chores. The GAL also believed there was mold in the basement, to which the
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 6 of 28 GAL had an allergic reaction.1 Ultimately, the GAL recommended “[t]hat the
parenting time plan for [N.M.] be ‘flip-flopped’ from the current schedule.” Id.
at 66.
[11] Shortly before the modification hearing, N.M. went to a counseling
appointment with Matt Greene, a therapist recommended by the GAL. After
that appointment, Greene stated that he did not believe N.M. required ongoing
counseling and that no further appointment was needed at that time.
[12] The trial court held the modification hearing on July 13, 2015. At the hearing,
Mother testified that N.M. and G.G. sometimes had non-physical fights over
things such as G.G. borrowing N.M.’s shoes or clothes without permission.
Otherwise, she described G.G. and N.M. as getting along like brothers, playing
football, baseball, and basketball together and talking about girls. At the time of
the hearing, N.M. was trying out for the Franklin Central baseball team and
appeared to be excited about being in classes in the fall at Franklin Central,
where he has a number of male and female friends.
[13] After the hearing, the trial court conducted an in camera interview of N.M.
Originally, Father had requested such an interview. At the beginning of the
modification hearing, Father asked that the trial court not conduct the
1 There is no evidence in the record that N.M. suffers from any mold-related illness.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 7 of 28 interview, but Mother objected to Father’s request, and the trial court stated it
would conduct the interview but not make a record of it, per its usual practice.
[14] On July 27, 2015, the trial court entered its order denying Father’s modification
petition. The order was accompanied by findings and conclusions, at Father’s
request. Among other things, the trial court found:
63. Father also claims [N.M.] wishes to live with him and early on in the treatment with Jessica Buescher (September of 2014) [N.M.] indicated his preference to do so.
64. Meetings with Buescher ended in December, 2014, and there are indications [N.M.]’s preference from eight (8) months ago have changed.
65. [N.M.] has also stated most recently that he wishes to remain in his Mother’s home and is looking forward to attending Franklin Central High School again.
[15] App. p. 15.
[16] Regarding N.M.’s counseling with Buescher, the trial court found in part, “The
therapist was unable to state in court whether further counseling would have
been beneficial to [N.M.] and expressed no opinion on the matter.” Id. at 20.
Regarding school, the trial court found in part,
153. It was after the death of Angela’s father that [N.M.] seems to have made a turn around.
154. [N.M.]’s attendance at school has soared along with his grades. Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 8 of 28 155. Coincidentally, [N.M.]’s depression mood seems to have subsided throughout the second semester.
*****
175. [N.M.]’s ninth grade grades and attendance seem to indicate not only improvement but potential emergence from [N.M.]’s adjustment disorder.
176. To change custody, and thus to change high schools, classmates, taking away [G.G.], and taking away [N.M.]’s mother from his daily life, invites a recurrence of the adjustment disorder or symptoms akin thereto.
178. The GAL did not address the fact that [N.M.] would be living alone with his Father and that he ([N.M.]), who has attendance problems at school, would be required to get himself ready for school four out of five days of the week.
179. The GAL did not address the potential, as opined by Ms. Buescher, as suggested by Father’s history suggesting he will at some future date be living again with another female adult with children as has, according to her report, happened on three (3) occasions in the past.
180. As to placement, neither the GAL nor Ms. Buescher have recommended a change of placement, and therefore, have made no recommendation as to a change of custody.
[17] Id. at 22-25.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 9 of 28 [18] The trial court made the following statements regarding the standard for
modification of custody:
192. Father bore the burden of proving that the existing custody order is unreasonable and should be altered due to a substantial change in circumstances occurring since the date of the previous custody decree and affecting the child’s welfare. Cunningham v. Cunningham, 787 N.E.2d 930 (Ind. Ct. App. 2003).
194. Further, the party pursuing modification bears the burden of demonstrating that the existing custody order is unreasonable. Haley vs. Haley, 771 N.E.2d 743 (Ind. Ct. App. 2002).
195. In modification proceedings, the change in the custodial home must be one of a decisive, substantial and continuing nature. In Re Marriage of Henderson, (1983) Ind.App., 453 N.E.2d 310.
197. The failure of the parent seeking modification to allege and prove a decisive change in conditions should result in the denial of that modification. Owen v. Owen, 563 N.E.2d 605, 608 (Ind. 1990).
217. The court finds that both Angela and Roger are loving and caring parents; [N.M.] is fortunate to have them both. However, the court finds that based on the provisions of the custody modification statute, Father has not met his burden of showing
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 10 of 28 changed circumstances so substantial so as to warrant a change of custody and that it would not be in his best interests to move to his Father’s residence in Fishers.
[19] Id. at 26-28.
[20] With respect to attorney fees, the trial court found that Father had an income
three times greater than Mother’s, and also that he had additional financial
resources, including a 401(k). Based primarily upon financial disparity, the trial
court ordered Father to pay $15,000 towards Mother’s attorney fees and
litigation costs of nearly $19,000. Father now appeals.
Analysis I. Child Custody Modification
[21] We review decisions regarding custody modifications for an abuse of discretion
and must give “‘latitude and deference to our trial judges in family law
matters.’” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009) (quoting Kirk
v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). Additionally, the trial court here
entered findings and conclusions pursuant to Indiana Trial Rule 52(A), at
Father’s request. In reviewing such findings, we first determine whether the
evidence supports the findings and second whether findings support the
judgment. Id. We “shall not set aside the findings or judgment unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.” Ind. Trial Rule 52(A). “A judgment is
clearly erroneous when there is no evidence supporting the findings or the
findings fail to support the judgment.” Id. “A judgment is also clearly Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 11 of 28 erroneous when the trial court applies the wrong legal standard to properly
found facts.” Id. “Additionally, even an erroneous finding is not fatal to a trial
court’s judgment if the remaining valid findings and conclusions support the
judgment, rendering the erroneous finding superfluous and harmless as a matter
of law.” M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1074 (Ind. Ct. App.
2005).
[22] Under Indiana Code Section 31–17–2–21, a court may not modify a custody
order unless the petitioner shows that (1) the modification would be in the best
interests of the child, and that (2) a substantial change has occurred in one or
more of the factors a court must consider under Indiana Code Section 31–17–2–
8. L.C. v. T.M., 996 N.E.2d 403, 407 (Ind. Ct. App. 2013). Those factors are:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 12 of 28 (5) The child's adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
Ind. Code § 31-17-2-8.
[23] Father challenges a number of the trial court’s findings. The first finding that
Father takes issue with is that the GAL had not “recommended a change of
placement, and therefore, ha[s] made no recommendation as to a change of
custody.” App. p. 25. Plainly, the GAL did recommend in her report “[t]hat
the parenting time plan for [N.M.] be ‘flip-flopped’ from the current schedule.”
Id. at 66. The trial court’s finding that the GAL did not make a custody
recommendation is clearly erroneous. It is true that a trial court “‘is not
required to accept the opinions of experts regarding custody . . . .’” Maddux v.
Maddux, 40 N.E.3d 971, 980 (Ind. Ct. App. 2015) (quoting Clark v. Madden, 725
N.E.2d 100, 109 (Ind. Ct. App. 2000)). Here, however, the trial court did not Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 13 of 28 simply fail to accept the GAL’s opinion regarding custody, it misstated that
opinion.
[24] Also with respect to the GAL, Father claims the trial court erred in finding the
GAL “did not address the potential” that a female adult could move in with
Father at some time in the future, given three occurrences in the past following
the divorce on which adult women lived with Father. Id. at 24. The GAL did
note Father’s past in this regard but not the possibility of it happening in the
future; thus, the trial court’s finding technically is not clearly erroneous. In any
event, as Father argues, whether another woman may live with Father at some
point in the future seems to be of minimal relevance here.2 To the extent the
trial court placed some relevance upon it, we disregard it.
[25] Father also challenges the trial court’s findings with respect to N.M.’s wishes
regarding custody. Specifically, the trial court acknowledged that N.M. told
Buescher during his counseling sessions with her that he would prefer to live
with Father. However, the trial court also found, “[N.M.] has also stated most
recently that he wishes to remain in his Mother’s home and is looking forward
to attending Franklin Central High School again.” Id. at 15. The trial court
also entered a conclusion stating, “While [N.M.] at one time expressed
preference to live with Father, it is clear from the evidence he wants to go to
2 In a report, Buescher stated that there was a possibility Father would not always be single and other children could enter his life at some point, “and that should be taken into consideration pending a final decision of [N.M.]’s placement.” Ex. 2, p. 20. It is unclear that Buescher intended for Father to be “penalized” for having had more live-in relationships following the divorce than Mother.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 14 of 28 Franklin Central High School. He cannot attend FCHS and live with Father.”
Id. at 27. The trial court also concluded, “While [N.M.] at one time expressed
an opinion he wanted to live with his Father nearly a year ago, it is evidence
that with the emergence from his depression; his overcoming his adjustment
disorder; [N.M.] is showing all the signs he wishes to remain in Franklin
Central and to live with his Mother.” Id. at 28.
[26] We must agree with Father that it is unclear how the trial court reached the
conclusion that N.M. had changed his mind regarding custody. The trial court
makes no mention in its findings of the GAL’s report regarding N.M.’s wishes,
which were that “he would like to ‘flip-flop’ the current parenting arrangement .
. . .” App. p. 53. The GAL did not specify precisely when N.M. told her this,
but she was not appointed until March 2015, or considerably closer in time to
the modification hearing than the counseling with Buescher upon which the
trial court exclusively focused regarding N.M.’s wishes, and did not file her
report relating N.M.’ wishes until shortly before the hearing. Additionally,
such a “flip-flop” in schedule would necessitate a change in N.M.’s school, but
according to the GAL this did not seem to concern N.M., contrary to the trial
court’s findings that N.M. clearly wanted to continue attending Franklin
Central.
[27] We acknowledge that the trial court conducted an in camera interview of N.M.,
and it is possible N.M. expressed to the trial court that he had changed his mind
regarding custody. However, the trial court’s findings and conclusions make no
mention of what N.M. said during the in camera interview, nor was any record
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 15 of 28 of it made. The trial court, by statute, was not required to make such a record.
See I.C. § 31-17-2-9 (stating “a record may be made of the interview”).
Nonetheless, we are hesitant to assume that the trial court’s finding regarding
the change in N.M.’s wishes was supported by the in camera interview,
particularly where special findings were requested and the trial court failed to
mention what N.M. had told the GAL. See Baxendale v. Raich, 878 N.E.2d
1252, 1258 (Ind. 2008) (“Obviously, we can speculate that the court’s in camera
interview also affected the court’s conclusion as to the child’s wishes. But there
is nothing in the record that gives us any basis to conclude that this factor was
significant in the trial court’s ruling.”); see also McCauley v. McCauley, 678
N.E.2d 1290, 1292 (Ind. Ct. App. 1997) (“The trial court did conduct an in
camera interview with J.M., and we might speculate from the language of the
trial court’s finding that his decision was based upon that in camera discussion.
However, the trial court’s judgment may not rest primarily upon the results of a
private in camera interview.”), trans. denied. Additionally, N.M.’s wishes were
crucial in this case, and an accurate assessment of them is vital. In the absence
of any indication of how or when N.M. said he had recently said he wanted to
continue living with Mother, we deem the finding that he had done so to be
clearly erroneous.
[28] Father also argues that the trial court clearly erred in finding that Buescher "was
unable to state in court whether further counseling would have been beneficial
to [N.M.] and expressed no opinion on the matter.” App. at 20. This finding is
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 16 of 28 partially true, but certainly does not reflect the entirety of Buescher’s testimony.
Specifically, Buescher testified:
Q: Had you been in control of the situation, would you have elected to stop seeing [N.M.] in December?
A: No, I would have continued to probably see him for . . ., as long as his treatment goals were necessary.
Q: So, from your standpoint, you weren’t done working with him yet?
A. Right. Yeah.
Q: Do you think that it would have been helpful for [N.M.] to continue working with you at that juncture:
A: Yes.
Q: Do you think that it would have been in [N.M.]’s best interest to continue to work with you at that juncture?
Q: Do you have an opinion regarding whether or not the decision to stop counseling with you was good for him?
A: No. No opinion.
Tr. pp. 46-47. Thus, in fact, Buescher did express that she thought it would
have been best for N.M. to continue counseling in December 2014, but
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 17 of 28 confusingly she did also state that she had no opinion on whether it was good
to stop his counseling at that time. In any event, the trial court’s finding is
incomplete with respect to whether Buescher believed N.M. should have
continued counseling with her, contrary to Mother’s decision to stop. At the
very least, Buescher seemed to have mixed feelings on the matter.
[29] In addition to these erroneous findings, Father points out that the trial court
several times stated incorrect, outdated, and overly-stringent legal standards for
modifying custody. The trial court twice stated in its conclusions of law that
Father bore the burden of proving that the existing custody order is
“unreasonable,” and also stated that he had to prove “a decisive, substantial
and continuing” change in conditions of the custodial home before a
modification could be granted. App. p. 26-27. However, in 1994 the legislature
amended the child custody modification statute to remove the requirement of
“unreasonableness” before modification could be ordered. Julie C. v. Andrew C.,
924 N.E.2d 1249, 1258 (Ind. Ct. App. 2010). Additionally, after this
amendment, “the change in circumstances required by Section 31–17–2–21
need not be so decisive in nature as to make a change in custody necessary for
the welfare of the child. . . . Rather, the change in circumstances must be
substantial.” Id. (citing Joe v. Lebow, 670 N.E.2d 9, 21 (Ind. Ct. App. 1996)).
See also In re Marriage of Sutton, 16 N.E.3d 481, 487 n.5 (Ind. Ct. App. 2014)
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 18 of 28 (noting that cases decided before amendment of modification statute applied
“very strict” standard that no longer exists).3
[30] Father also contests the trial court’s findings regarding N.M.’s grades and
school attendance, and contends the trial court erred in omitting any mention of
the GAL’s concerns regarding the condition of Mother’s home. We do not
believe it is necessary to address those findings or lack thereof at this time.
Rather, we focus upon the fact that the trial court made erroneous or
unsupported findings in three vital areas. First, it plainly misstated the GAL’s
opinion regarding modification of custody; the GAL recommended a
modification of custody but the trial court said she had not done so. Although
the trial court was not required to accept her opinion, it gives us pause that the
trial court may have been unaware of or misjudged her opinion. Second, it is
unclear how the trial court arrived at the finding that N.M. no longer wanted to
live primarily with Father. The wishes of a child, particularly a child over
fourteen years old such as N.M., are one of the statutory factors to consider
when deciding whether to modify custody. See I.C. § 31-17-2-8(3). Although
we traditionally have been hesitant to allow modifications of custody based
solely upon a child’s changed wishes, it certainly is an important consideration
3 We acknowledge that the trial court cited two post-1994 cases from this court for the proposition that a parent seeking modification of custody must prove that the existing custody order is unreasonable: Cunningham v. Cunningham, 787 N.E.2d 930, 935 (Ind. Ct. App. 2003), and Haley v. Haley, 771 N.E.2d 743, 747 (Ind. Ct. App. 2002). Haley, in turn, cited Fields v. Fields, 749 N.E.2d 100, 108 (Ind. Ct. App. 2001), trans. denied. Cunningham, Haley, and Fields should no longer be cited for the proposition that an existing custody order must be shown to be unreasonable before modification may be ordered.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 19 of 28 that may reinforce other factors favoring a modification of custody. See Sutton,
16 N.E.3d at 486. The trial court’s findings also fail to give a completely
accurate picture of Buescher’s beliefs regarding whether it was advisable for
N.M. to stop attending counseling sessions in December 2014. The particular
importance of this question is that N.M. was addressing with Buescher
difficulties he was having in his interaction with Mother, Mother’s live-in
fiancé, and other children in Mother’s home, and Buescher believed further
counseling would have benefitted N.M. A change in a child’s interaction and
interrelationship with his or her parents, or “any other person who may
significantly affect the child’s best interests,” may support a modification of
custody, as may a change in the mental health of a child. See I.C. § 31-17-2-
8(4), (6). N.M.’s counseling with Buescher was related to such interactions and
interrelationships and N.M.’s mental health.
[31] We may disregard erroneous findings if there are enough other valid findings
and conclusions such that the erroneous findings are “superfluous and harmless
as a matter of law.” M.K. Plastics Corp., 838 N.E.2d at 1074. We have great
difficulty in saying that the erroneous or unsupported findings we have noted
can be deemed “harmless” or merely “superfluous.” This is especially true
given that the trial court several times noted a standard for modification of
custody that placed a higher burden of proof upon Father than currently exists
under Indiana law. Even if the trial court had not made any erroneous factual
findings, the judgment may be clearly erroneous if the trial court applied the
wrong legal standard in ruling upon Father’s petition to modify. See K.I. ex rel.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 20 of 28 J.I., 903 N.E.2d at 457. Given the erroneous findings on crucial issues we have
identified and the trial court’s repeated recitation of an incorrect legal standard,
we lack confidence in the accuracy of the judgment.
[32] Father requests that we reverse the denial of his modification petition and direct
that he be awarded primary custody of N.M. We are not prepared to go that
far. The evidence in this case arguably could support a result in favor of
Mother. We emphasize that in order to outright reverse a denial of custody
modification, it is not enough that the evidence might have supported a
modification; rather, the evidence must “‘positively require’” modification.
Kirk, 770 N.E.2d at 307 (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210
N.E.2d 850, 852 (1965)). We need not engage in a detailed review of all of the
cases Father has cited in which we reversed outright a denial of custody
modification. We will briefly note the case of Steele-Giri v. Steele. Father cited
our opinion in this case as an example of one in which we reversed a denial of
custody modification based upon what the majority deemed to be erroneous
findings. See Steele-Giri v. Steele, 40 N.E.3d 513 (Ind. Ct. App. 2015). However,
our supreme court recently issued an opinion on transfer, ruling that the
findings in that case were not clearly erroneous and emphasizing the deference
to be given to trial courts in family law matters. See Steele-Giri v. Steele, No.
45S04-1512-DR-00682 (Ind. Mar. 15, 2016). We recognize the need for such
deference, but must conclude here that there are several erroneous or
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 21 of 28 unsupported findings and that the trial court applied an erroneous legal
standard.4
[33] Under the circumstances, we conclude it would be most prudent to remand this
case to the trial court for further consideration. This would include
reconsideration of the case in light of the GAL’s recommendation and either
altering the findings regarding N.M.’s wishes and Buescher’s thoughts
regarding counseling, or supporting those findings more thoroughly, and then
applying the correct legal standard to the findings. See Hyde v. Hyde, 751
N.E.2d 761, 768 (Ind. Ct. App. 2001) (remanding for reconsideration of marital
property division after erroneous findings were identified on appeal). We do
not believe it is necessary for the trial court to conduct a new hearing in this
matter. However, in the interests of resolving this child custody matter
expeditiously, we direct the trial court to enter new findings and conclusions in
this case within thirty days of certification of this opinion. See Wolljung v. Sidell,
891 N.E.2d 1109, 1113 (Ind. Ct. App. 2008) (ordering trial court to conduct
new hearing on child custody modification within thirty days of our opinion
remanding case based upon trial court’s failure to consider statutory factors
related to relocation of a parent).
4 The author of this opinion dissented in Steele-Giri when it was before this court and finds the present case to be distinguishable.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 22 of 28 II. Attorney Fees
[34] Father also challenges the trial court’s order directing him to pay $15,000.00 of
Mother’s total attorney fees and costs of $18,796.29 related to the modification
proceedings. Under Indiana Code Section 31-15-10-1(a):
The court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this article and for attorney’s fees and mediation services, including amounts for legal services provided and costs incurred before the commencement of the proceedings or after entry of judgment.
The purpose of this statute is to ensure that parties who otherwise could not
afford an attorney in dissolutions and dissolution-related matters have access to
an attorney’s services by requiring the other party to contribute to such costs.
Capellari v. Capellari, No. 37A05-1505-DR-479 (Ind. Ct. App. Dec. 22, 2015)
(citing Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992)). A non-exclusive
list of factors a court may consider when deciding to require one party to pay
the attorney fees of the opposing party includes the resources of the parties;
their relative economic circumstances; their ability to engage in gainful
employment and earn adequate income; which party initiated the action;
whether fees and expenses were incurred due to a party’s misconduct; and the
ability of a party to pay. Masters v. Masters, 43 N.E.3d 570, 576 n.8 (Ind. 2015).
[35] Father’s brief fails to mention the statutory basis for awarding attorney fees in
dissolution-related proceedings. He focuses primarily upon the absence of
evidence of any misconduct by him during these proceedings in arguing that the
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 23 of 28 attorney fee award should be reversed. However, there are other factors that
weigh in favor of that award. As found by the trial court, Father has earned
income that is nearly three times that of Mother, and he has financial assets she
does not have, such as a 401(k). Also, Father initiated the current action,
necessitating Mother’s hiring of an attorney. An award of attorney fees in a
dissolution-related action is proper if one party is in a superior position to pay
such fees. Hartley v. Hartley, 862 N.E.2d 274, 287 (Ind. Ct. App. 2007). The
trial court’s findings, which Father does not challenge, indicate that Father was
in such a superior position. To the extent Father contends the trial court could
or should have ordered him to pay less than $15,000 towards Mother’s attorney
fees, because that amount is in excess of the three-to-one ratio in Father’s and
Mother’s incomes, he cites no authority for the proposition that trial courts
must precisely align an attorney fees award to reflect each party’s financial
situation. We conclude that the trial court’s award of $15,000 in attorney fees
to Mother is not clearly erroneous.
Conclusion [36] We remand for reconsideration of the denial of Father’s custody modification
petition, in light of the trial court erroneous or unsupported findings and
possible application of an erroneous legal standard. Such reconsideration and
issuance of new findings and conclusions shall take place within thirty days of
this opinion’s certification. We affirm the award of attorney fees to Mother.
[37] Affirmed in part and remanded in part.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 24 of 28 Altice, J., concurs.
Robb, J., dissents in part and concurs in part with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 25 of 28 IN THE COURT OF APPEALS OF INDIANA
Roger A. Andrick, Appellant-Petitioner, Court of Appeals Case No. 33A04-1508-DR-1211 v.
Angela L. Andrick, Appellee-Respondent.
Robb, Judge, dissenting in part and concurring in part
I respectfully dissent from the majority’s decision to remand this case to the trial
court for further consideration.
I reiterate the standard for reviewing the trial court’s findings and conclusions:
we will not set aside the findings or judgment unless they are clearly erroneous.
T.R. 52(A). Findings are clearly erroneous when the record contains no facts to
support them, either directly or by inference. Hurt v. Hurt, 920 N.E.2d 688, 691
(Ind. Ct. App. 2010). The judgment is clearly erroneous when no evidence
supports the findings, the findings fail to support the judgment, or the trial court
uses an incorrect legal standard. In re B.J.R., 984 N.E.2d 687, 697 (Ind. Ct.
App. 2013). We will not substitute our own judgment for that of the trial court Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 26 of 28 if any evidence or legitimate inferences support the trial court’s judgment. Kirk
v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). However, “[t]he judgment will be
reversed if it is clearly erroneous.” Werner v. Werner, 946 N.E.2d 1233, 1244
(Ind. Ct. App. 2011) (citation omitted), trans. denied.
Here, as the majority determines, several of the trial court’s findings were
clearly erroneous. See slip op. at ¶ 30. Moreover, the majority holds these
erroneous findings were neither superfluous nor harmless, see id. at ¶ 31, as they
went to the heart of the matter: the GAL’s recommendation regarding custody;
N.M.’s wishes regarding custody; and the advisability of continued counseling
as it related to N.M.’s interaction and relationships with his parents and others
in the home, his adjustment to his home, and his mental health. In addition,
the trial court used an incorrect legal standard in assessing whether custody
should be modified and the majority therefore “lack[s] confidence in the
accuracy of the judgment.” See id. With all of this, I agree. What I cannot
agree with, however, is that despite these many significant factual and legal
errors on the part of the trial court, the majority determines that reversal is not
appropriate and instead remands to the trial court for further consideration. See
id. at ¶ 32-33.
Rather than remand for the trial court to fix the multitude of errors explained by
the majority opinion, I would reverse. I am given some pause by the fact the
trial court interviewed N.M. in chambers sometime during the two weeks
between the hearing and issuing its order. However, if what N.M. said about
his wishes in chambers was so different from how others had testified, the trial
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 27 of 28 court should have indicated that in some way in its findings. As it stands, the
evidence of record does not support even an inference that N.M. had changed
his mind about where he wanted to live. Although that is not the only criteria
weighing on a modification of custody, it is a significant factor, especially when
coupled with the trial court’s complete misstatement regarding the GAL’s
recommendation. As the majority notes, our supreme court has stated that “it
is not enough that the evidence might support some other conclusion, but it
must positively require the conclusion contended for by appellant before there is
a basis for reversal.” Kirk, 770 N.E.2d at 307; see also slip op. at ¶ 32. The court
also noted, however, that “[t]his is not to say that the circumstances of a
custody or visitation case will never warrant reversal.” Kirk, 770 N.E.2d at 307
n.5. I believe this is one of those cases. When the crucial findings are set aside
as clearly erroneous, and the correct legal standard is applied, the evidence of
the factors relevant to a modification decision demonstrate the judgment itself is
clearly erroneous and must be reversed.
With respect to the attorney fees issue, I concur.
Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 28 of 28