Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1211 | April 29, 2016 Page 1 of 28

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.

ATTORNEYS FOR APPELLANT

Philip C. Sheward

Dawn E. Wellman

Josh Van Gorkom

Allen Wellman McNew Harvey, LLP

Greenfield, Indiana

ATTORNEY FOR APPELLEE

Thomas N. Leslie

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Roger A. Andrick,

Appellant-Petitioner,

v.

Angela L. Andrick,

Appellee-Respondent.

April 29, 2016

Court of Appeals Cause No.

33A04-1508-DR-1211

Appeal from the Henry Circuit 

Court

The Honorable Kit C. Dean Crane, 

Judge

Trial Court Cause No.

33C02-0611-DR-157

Barnes, Judge.
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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. 
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[4] This new parenting arrangement began in May 2012, at the end of N.M.’s sixthgrade 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 
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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 
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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 
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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 
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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.
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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.
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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.
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[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 
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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 
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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.
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(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 
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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.
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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 
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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 
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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?

A: Yes.

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 
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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)
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(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.
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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 21 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 22 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 23 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 24 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.
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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 26 of 28

I N T H E

COURT OF APPEALS OF INDIANA

Roger A. Andrick,

Appellant-Petitioner,

v.

Angela L. Andrick,

Appellee-Respondent.

Court of Appeals Case No.

33A04-1508-DR-1211

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 27 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 28 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.