Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

JILL D. WESCH TRACY M. WEBER

Wallace Law Firm Wilkinson, Goeller, Modesitt,

Covington, Indiana Wilkinson & Drummy, LLP

Terre Haute, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CHAD THOMAS GATES, )

)

Appellant-Respondent, )

)

vs. ) No. 83A05-1401-DR-26

)

SHANNON LEIGH GATES, )

)

Appellee-Petitioner. )

APPEAL FROM THE VERMILLION CIRCUIT COURT

The Honorable Bruce V. Stengel, Judge

Cause No. 83C01-0803-DR-19

June 30, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

Chad Thomas Gates (“Father”) appeals the dissolution court’s denial of his 

petition to modify child custody order. Father presents two issues for our review, which 

we consolidate and restate as whether the dissolution court abused its discretion when it 

denied his petition to modify child custody order.

We affirm.

FACTS AND PROCEDURAL HISTORY

Father and Shannon Leigh Gates (“Mother”) married on June 6, 1995, and had two 

children together: M.G., born December 9, 1995, and C.G., born May 3, 1999. Father 

and Mother divorced on September 17, 2008, and the dissolution court awarded physical 

custody of the children to Mother, with the parties sharing legal custody. Father moved 

to Kentucky, but has exercised parenting time with the children since the divorce. Father 

lives with his fiancée, Angi Adams, and Adams’ sons.

On April 15, 2013, Father filed a petition to modify the dissolution decree with 

respect to custody of C.G. In particular, Father alleged that C.G. “has expressed a desire 

to reside with his father,” and that Father “desires to have the sole physical custody” of 

C.G. Appellant’s App. at 23. Father also requested that the dissolution court appoint a 

Guardian Ad Litem (“GAL”) “to assess the situation of the parties and their minor 

children.” Id.

The dissolution court appointed a GAL, who conducted interviews by telephone 

with Father, Mother, C.G., Adams, and the school principal, Jayne Virotsko, who 

reported that “it was common knowledge that [C.G.] planned to go and live with his 
3

father when he turned 14.” Id. at 30. In his report, the GAL recommended that the 

dissolution court grant Father’s petition to modify custody. But the GAL noted that 

“[o]ne difficulty in preparing this report is that all of the interviews were done by phone. 

Particularly with regards to [C.G.] speaking with me from his father’s home there comes 

to mind the question of whether or not the child is expressing his true wishes in a phone 

interview.” Id. at 33.

The dissolution court denied Father’s petition after a hearing and entered the 

following relevant findings and conclusions:

8. Although the Guardian Ad Litem recommended that Father be 

awarded physical custody of [C.G.], said report is substantially based on the 

child’s wishes and not on a substantial change in circumstances as required 

under Indiana law.

9. Under IC 31-17-2-21, the court may not modify a child custody 

order unless (1) the modification is in the best interests of the child; and (2) 

there is a substantial change in one (1) or more of the factors that the court 

may consider which includes as follows: (a) the age and sex of the child[;] 

(b) the wishes of the child’s parent or parents[;] (c) the wishes of the 

child[;] (d) the interaction and interrelationship of the child with: the 

child’s parent or parents, the child’s sibling, and any other person who may 

significantly affect the child’s best interests[;] (e) the child’s adjustments to 

the child’s home, school, and community[;] (f) the mental and physical 

health of all individuals involved[;] (g) evidence of a pattern of domestic or 

family violence by either parent[; and] (h) evidence that the child has been 

cared for by a de facto custodian.

10. In accordance with Indiana law, the Petitioner has the burden of 

proving that there is a substantial change in circumstances. In In re 

Paternity of M.J.M., 766 N.E.2d 1203, 1209 (Ind. Ct. App. 2002), the court 

stated “with respect to physical custody, a noncustodial parent must show 

something more than isolated acts of misconduct by the custodial parent to 

warrant a modification of child custody; he must show that changed 

circumstances regarding the custodial parent’s stability and the child’s 

well-being are substantial.” The longstanding rule in Indiana is that a 

change in the child’s wishes, standing alone, cannot support a change in 
4

custody. This has been cited in numerous cases including Williamson v. 

Williamson, 825 N.E.2d 33 (Ind. Ct. App. 2005).

11. [C.G.,] who is 14, currently resides with his mother, Shannon Gates 

(custodial parent), along with his 17 year old sister, [M.G.]. [C.G.] is a 

good student, who gets mostly A’s with a few B’s, is mature for his age, 

participates in many extracurricular activities and is a well rounded teenage 

boy. [C.G.] is adamant he wants to live with his father in Kentucky. He 

has made his wishes known to numerous people including the Court 

appointed Guardian Ad Litem. [C.G.]’s main reason for wanting to change 

appears to be that he has not lived with his father. [C.G.] would like to flip 

flop the current living arrangement. He would like to live with his father 

during the 9 month school year and mother during the summer months. 

Although the Respondent/Father . . . has pointed out a few isolated

incidents involving [C.G.] and his sister, these incidents do not support a 

finding of material change in circumstances.

* * *

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that 

Respondent’s Petition for Modification of Custody is hereby DENIED and 

orders the Petitioner, Shannon Gates shall continue to have physical 

custody of the parties’ minor child, [C.G.]

Id. at 12-13. This appeal ensued.

DISCUSSION AND DECISION

The modification of a custody order lies within the sound discretion of the trial 

court. Haley v. Haley, 771 N.E.2d 743, 747 (Ind. Ct. App. 2002). Upon appeal, we will 

reverse a trial court’s decision only upon a showing of an abuse of discretion. Id. An 

abuse of discretion is found when the trial court’s decision is clearly against the logic and 

effect of the facts and circumstances. Id. We do not judge witness credibility nor 

reweigh the evidence. Id. We consider only the evidence which supports the trial court’s 

decision. Id.
5

Further, where, as here, a trial court makes specific findings on its own motion,1

the general judgment will control as to the issues upon which the court has not found and 

the specific findings control only as to the issues they cover. In re Marriage of Snemis, 

575 N.E.2d 650, 652 (Ind. Ct. App. 1991). We may not reverse the trial court’s findings 

in such circumstances unless they are clearly erroneous. Ind. Trial Rule 52(A). 

However, the general judgment will be affirmed if it can be sustained upon any legal 

theory by the evidence introduced at trial. In re Marriage of Snemis, 575 N.E.2d at 652. 

In short, we are bound by the trial court’s findings in this case only as to the matters to 

which they refer. Id. The trial court’s failure to support its judgment with complete 

findings does not mandate reversal as is required when findings have been requested. Id.

And in Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011), our supreme court 

observed:

Appellate deference to the determinations of our trial court judges, 

especially in domestic relations matters, is warranted because of their 

unique, direct interactions with the parties face-to-face, often over an 

extended period of time. Thus enabled to assess credibility and character 

through both factual testimony and intuitive discernment, our trial judges 

are in a superior position to ascertain information and apply common sense, 

particularly in the determination of the best interests of the involved 

children.

In the initial custody determination, both parents are presumed equally entitled to 

custody, but a petitioner seeking subsequent modification bears the burden of 

demonstrating that the existing custody arrangement should be altered. Green v. Green, 

843 N.E.2d 23, 29 (Ind. Ct. App. 2006). A court may not modify a child custody order 

unless (1) the modification is in the best interests of the child and (2) there is a substantial 

 

1

 A request for findings was withdrawn before the conclusion of the hearing.
6

change in one or more of the factors a court may consider under Indiana Code Section 

31-17-2-8 when it originally determines custody. See Ind. Code § 31-17-2-21. Section 8 

provides:

The court shall determine custody and enter a custody order in accordance 

with the best interests of the child. In determining the best interests of the 

child, there is no presumption favoring either parent. The court shall 

consider all relevant factors, including the following:

(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.

(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. . . .
7

Ind. Code § 31-17-2-8. A change in conditions must be judged in the context of the 

whole environment, and the effect on the child is what renders a change substantial or 

inconsequential. In re Paternity of B.D.D., 779 N.E.2d 9, 14 (Ind. Ct. App. 2002).

Here, Father first contends that the dissolution court did not adequately consider

the factors in Indiana Code Section 31-17-2-8. In particular, Father maintains that the 

dissolution court: did not give proper consideration to the wishes of C.G., who was at 

least fourteen years old at the time of the hearing; did not consider Father’s wishes; and 

did not acknowledge the interactions and interrelationships between C.G. and his parents, 

siblings, and other significant individuals in C.G.’s life.2 We cannot agree.

First, in its findings and conclusions, the dissolution court expressly acknowledged 

C.G.’s age and “adamant” desire to live with Father, but found C.G.’s reasons for the 

desired change to be unpersuasive. Appellant’s App. at 13. Thus, contrary to Father’s 

contention, the dissolution court considered C.G.’s age and wishes with respect to 

custody. Second, the dissolution court considered Father’s wishes when it noted that 

Father was requesting that he be awarded custody of C.G. Third, the dissolution court 

acknowledged evidence of “isolated incidents involving [C.G.] and his sister” and 

concluded that those incidents did “not support a finding of [a] material change in 

circumstances.” Id. Finally, with respect to the court’s general judgment, we presume 

that the trial court correctly followed the law, and this presumption is one of the strongest 

presumptions applicable to our consideration of a case on appeal. See In re H.M.C., 876 

 

2

 Father does not challenge the dissolution court’s consideration of the statutory factors 

numbered 5 through 8. We note that Mother presented evidence of domestic violence perpetrated by 

Father.
8

N.E.2d 805, 807 (Ind. Ct. App. 2007), trans. denied. We reject Father’s contention that 

the dissolution court did not adequately consider the statutory factors.

Father also contends that the dissolution court’s order is clearly erroneous, but he

does not direct us to any evidence of a substantial change in circumstances justifying a 

modification of custody. Father suggests that C.G.’s interaction and interrelationship 

with his sister, M.G., has undergone a substantial change, but his only support for that 

contention is as follows: “C.G.’s sibling, M.G.[,] had recently been in trouble for 

underage drinking, had admitted to smoking marijuana and had run away from both 

Mother[’s] and Father’s homes when she did not agree with what was asked of her.” 

Appellant’s Br. at 16. But Father does not explain whether or how C.G. has been

impacted by M.G.’s alleged disciplinary issues. The trial court did not err when it did not 

consider C.G.’s relationship with M.G. to be a substantial change warranting a 

modification of custody, and Father’s argument otherwise is merely a request for this 

court to reweigh this evidence.

Father also contends that the dissolution court “should have also found a 

substantial change in circumstances in C.G.’s interaction and interrelationship” with 

Father’s fiancée and her two sons. Id. at 19. In particular, Father points out that C.G. has 

“enjoyed his time spent in Kentucky” and “would interact with his fiancée’s two children 

during most of the summer while visiting.” Id. But Father does not explain how, “in the 

context of the whole environment[,] . . . the effect on” C.G. renders that change 

substantial. See In re Paternity of B.D.D., 779 N.E.2d at 14. Indeed, that contention is 

merely a request that we reweigh the evidence, which we will not do. Mother presented 
9

evidence that C.G. is well adjusted in his school and community and has good 

relationships with extended family who live in Indiana. The dissolution court did not err 

when it did not consider C.G.’s relationships with Father’s fiancée and her sons to be a 

substantial change warranting a modification of custody.

The evidence, considered as a whole and most favorable to the judgment, does not 

compel a finding of change in custody such that the trial court abused its discretion in 

denying Father’s petition to modify custody. See Hermann v. Hermann, 613 N.E.2d 471, 

474 (Ind. Ct. App. 1993).

Affirmed.

VAIDIK, C.J., and BROWN, J., concur.