Morgan Billieu, Appellant-Petitioner v. Robert Billieu, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] After Morgan (Mother) and Robert (Father) Billieu (collectively, Parents) divorced in 2024, Mother was granted primary physical custody of the couple's two-year-old son, B.B. (Child). In 2025, Father filed a motion to modify custody and a motion for contempt. Following a hearing, the court modified custody to give Father primary physical custody and found Mother in contempt, ordering her to pay a portion of Father's attorney's fees. Mother now appeals. We affirm.

Facts and Procedural History

[2] Parents were married on June 23, 2019, and had Child in 2022. Parents separated in May 2023, and on August 26, 2024, the court granted Parents’ Dissolution of Marriage. Parents shared legal custody of Child, with Mother receiving primary physical custody and Father receiving parenting time.

[3] In September 2024, Mother began unilaterally changing the parenting-time schedule and pickup locations. She would request Father pick up Child during her time with him, “expressing an inability to care for [Child.]” App. Vol. II p. 15. This caused “volatility” in Child's schedule. Tr. Vol. II p. 8. Around this time, Mother began exhibiting “numerous ․ mental health episodes which [ ] manifested in suicidal ideations[.]” App. Vol. II p. 15.

[4] On March 17, 2025, Father filed a motion requesting the court order Parents to communicate via a co-parenting application and limit communications only to matters involving Child. The trial court issued the order the same day. For the next month, Mother refused to use the co-parenting application and instead frequently contacted Father by other means involving subjects other than co-parenting Child.

[5] On April 17, Father filed a motion for contempt, citing Mother's failure to use the co-parenting application. That same day, Father also filed a motion to modify custody, asserting Mother's mental health had deteriorated to a point where she could not consistently care for Child. The trial court issued a rule to show cause and set a June 6 virtual hearing to address both it and the motion to modify.

[6] The virtual hearing was held on June 6 in front of Magistrate Diane Cowger. Mother appeared pro se and Father appeared with counsel. During Father's direct examination, he testified Mother initially failed to use the court-ordered co-parenting application for communication but acknowledged after “a month” she began using it. Tr. Vol. II p. 8. Mother's brother also testified at the hearing, noting Mother suffered from mental health issues and expressing concern for Child's welfare when he is in Mother's care.

[7] Following the hearing, the trial court issued an order modifying primary physical custody to Father and awarding Mother parenting time.¹ The court also found Mother in contempt. The court ordered Father to submit a child-support obligation worksheet and evidence regarding his attorney's fees relating to the contempt proceeding. Father did so, and the trial court thereafter issued an order requiring Mother to pay $104.00 weekly in child support as well as $350.00 in attorney's fees as sanction for the contempt. On July 10, Mother filed a motion to correct error, which was later denied without a hearing by presiding Judge Melanie Kendrick. Mother now appeals. Additional facts are provided as necessary.

Discussion and Decision

I. Evidentiary Hearing

[8] Mother asserts a variety of claims regarding the evidentiary hearing. Specifically, she argues the trial court erred by (1) not continuing the hearing; (2) holding the hearing remotely; (3) admitting evidence that had not been previously provided to her; and (4) not providing her the opportunity to cross-examine Father. Notably, Mother did not object to any of these alleged errors and thus has waived them for our review. Werner v. Werner, 946 N.E.2d 1233, 1246 (Ind. Ct. App. 2011), trans. denied. However, she argues these amount to fundamental error.

Fundamental error is error which is a blatant violation of our concepts of fundamental fairness and in which the harm or threat of harm is substantial and apparent. It is error which is so likely to have infected the verdict or judgment that confidence in the correctness of the trial result has been undermined.

Id. (quotation omitted).

[9] Mother first argues the court erred in not continuing the June 6 hearing. But no motion to continue was ever properly presented to the court. On May 19, Mother filed a letter to the court in which she asked that the court “postpone[ ]” the hearing. App. Vol. II p. 62. The court issued a notice of noncompliance and declined to take action on the letter, as it did not comply with local rules. See id. at 63-64. Mother did not subsequently file anything requesting a continuance, nor did she request one at the hearing. As such, we cannot say the trial court erred, let alone committed fundamental error, in holding the hearing on June 6.

[10] Mother argues the court erred in conducting the hearing remotely rather than in person. Indiana Administrative Rule 14(C) provides in part that “[a] court must conduct all testimonial proceedings in person except that a court may conduct the proceedings remotely for all or some of the case participants for good cause shown or by agreement of the parties.” Here, the court set the hearing remotely without a show of good cause or the parties’ agreement. This was an error. See T.M. v. Cmty. Health Network, Inc., 261 N.E. 3d 765, 776 (Ind. Ct. App. 2025) (court erred in conducting hearing remotely where nothing in the record indicated the parties agreed nor was good cause shown), trans. denied. However, Mother does not tell us how the court's noncompliance with Rule 14(C) “made a fair [hearing] impossible” or “present[ed] an undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (quotation omitted). As such, she has failed to show the court committed fundamental error in holding the hearing remotely.

[11] Mother also argues the trial court erred in admitting exhibits that had not been provided to her prior to the hearing. The trial court's order setting the hearing instructed the parties to file any proposed exhibits seventy-two hours before the hearing. See App. Vol. II p. 11. Father did not do so but nonetheless introduced certain exhibits at the hearing which were admitted. But again, Mother did not object on this basis at trial.² And notably, four of Father's five exhibits were text messages between him and Mother, and his final exhibit was the probable cause affidavit in Mother's misdemeanor case. Mother clearly had access to these exhibits, and their contents could not have been a surprise to her. We cannot say the court committed fundamental error in admitting these exhibits.

[12] Finally, Mother argues the trial court erred by not providing her an opportunity to cross-examine Father during his testimony. The right to cross-examine witnesses under oath is a fundamental right which cannot be denied unless waived. Theobald v. Theobald, 804 N.E.2d 284, 286 (Ind. Ct. App. 2004). “[T]he right to effectively cross-examine witnesses can be waived.” Archem, Inc. v. Simo, 549 N.E.2d 1054, 1060 (Ind. Ct. App. 1990) (finding right to cross-examination waived by mere failure to object when trial court did not provide opportunity to cross-examine the witness), trans. denied. Here, after Father's direct examination, the trial court instructed his counsel to, “call the [next] witness[.]” Tr. Vol. II p. 31. No one indicated to Mother that she had the right to cross-examine Father, nor did she object. While pro se litigants are generally held to the same standard as an attorney, a trial court may, under some circumstances, take steps necessary to prevent a good faith pro se litigant from being placed at an unfair disadvantage. Murietta v. Romero, 225 N.E.3d 199, 204 (Ind. Ct. App. 2023). Here, the trial court should have indicated to Mother that she had the right to cross-examine Father. Nevertheless, Mother had an opportunity later in the hearing to present her own evidence, during which she could have recalled Father and questioned him. She did not. As such, we cannot say this rises to the level of fundamental error.³

II. Custody Modification

[13] Mother next challenges the trial court's order modifying child custody. We have a well-established preference “for granting latitude and deference to our trial judges in family law matters.” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993)). “Appellate courts ‘are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.’ ” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)).

[14] “[T]he reviewing court will not set aside the findings or judgment unless clearly erroneous[.]” Id. at 123 (internal quotation and citations omitted). “Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them.” Id. at 125 (internal quotations and citations omitted). “Clear error occurs when our review of the evidence most favorable to the judgment leaves us firmly convinced that a mistake has been made.” Maddux v. Maddux, 40 N.E.3d 971, 974-75 (Ind. Ct. App. 2015), reh'g. denied. “Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).

A. Findings of Fact

[15] Mother challenges Findings 5, 18-21, and 28. Finding 5 states, “Beginning in August[ ] 2024, Mother has suffered numerous, if not regular or routine, mental health episodes which have manifested in suicidal ideations and volatility in the parties[’] parenting time schedule, all of which has an adverse impact on the minor child.” App. Vol. II p. 15. Mother does not challenge that she had such mental health episodes, but rather argues there was no evidence these had an adverse impact on Child. We disagree. Father testified at length regarding Mother's mental health and volatility. He specifically testified as to an incident in which Mother was screaming and cussing at him in front of Child. Inarguably, such behavior has an adverse impact on Child. And Mother's brother testified that he was concerned for Child's welfare with Mother due to her mental health. This finding is not clearly erroneous.

[16] Mother next challenges Findings 18-21, which state:

18. During the weekend of April 11, 2025, the Mother contacted the Father requesting he retrieve the child as she was unable to care for him at that time.

19. On Apri 11, 2025, as shown by Father's Exhibit 5, Mother and Father agreed upon the Father receiving the child late Friday evening and returning the child Monday morning.

20. Soon after the parenting exchange, Mother again revoked the agreement and demanded the child back on Saturday morning.

21. As shown by Father's Exhibit 5, the parties exchanged a number of text messages wherein the Mother fails to confirm the exchange day and time and instead again begins to inundate Father with messages unrelated to the child.

Id. at 16-17. Mother argues there is “no clear testimony” that these events occurred. Appellant's Br. p. 23. But Father testified as to the events of April 11, including that Mother requested he take Child, agreed he would have Child for the weekend, then requested Child back before the weekend concluded. See Tr. Vol. II pp. 26-28. And as clearly indicated by the court, these findings are supported by Father's Exhibit 5, which are text messages between Mother and Father. See Ex. Vol. I pp. 54-63. These findings are not clearly erroneous.

[17] Finding 28 states,

28. Mother's Brother expressed to Father and the Court, that at that time, it was in the child's best interest for Father to have primary physical custody of the minor child. Further that the Mother has previously been placed on a 72-hour hold due to mental health episodes and suicidal ideations.

App. Vol. II p. 18. Mother challenges this finding but does not argue it is erroneous and instead challenges the credibility and knowledge of her brother. We do not reweigh the facts or judge the credibility of witnesses. Best, 941 N.E.2d at 502. Mother's brother testified as to Mother's mental health issues and his belief that it is in Child's best interests for Father to have custody. As such, this finding is not clearly erroneous.

B. Conclusions of Law

[18] Mother challenges the trial court's conclusion that modification was in Child's best interests. A trial court may not modify a child-custody order unless: “(1) 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 under section 2 and, if applicable, section 2.5 of this chapter.” Ind. Code § 31-14-13-6 (1999). Although not exhaustive, best-interests factors include the child's age and sex; the wishes of the parents and the child, with more consideration to the child's wishes if he is over the age of fourteen; the interaction and relationship of the child with his parents, siblings, and any other person who significantly affects his best interests; the child's adjustment to his home, school, and community; the mental and physical health of the individuals involved; and evidence of domestic or family violence by either parent. Ind. Code § 31-17-2-8 (2017).

[19] Mother first asserts the trial court erred in failing to make an explicit finding regarding Child's best interests. However, “[a]bsent a request by a party, the trial court does not have to enter special findings that specify which factor(s) has substantially changed and explain why a change in custody is in the best interests of the child.” In re Paternity of P.R., 940 N.E.2d 346, 351 (Ind. Ct. App. 2010). Here, there was no such request.

[20] In any event, while the trial court did not make an explicit finding of best interests, we are able to discern from the court's existing findings that it determined modification was in Child's bests interests. See id. (upholding custody modification despite no explicit best interests finding where the court's findings made clear it had made that determination). The trial court's findings indicate Mother suffers from mental health issues and suicidal ideation, and because of these episodes she “regularly requires assistance from Father to care for” Child. App. Vol. II p. 18. The court also found Mother had expressed an “inability to care for [Child] and/or to afford food, diapers, and other supplies[.]” Id. at 15. This supports the conclusion that modification is in Child's best interests.

III. Contempt

[21] Mother next challenges the trial court's finding of contempt. “The determination of whether a party is in contempt of court is a matter within the sound discretion of the trial court.” Winslow v. Fifer, 969 N.E.2d 1087, 1093 (Ind. Ct. App. 2012), trans. denied. We will reverse only if the court has abused that discretion, meaning its decision is against the logic and effect of the facts and circumstances or is contrary to law. Id.

[22] Mother first argues she was not given sufficient notice of the contempt proceedings. Indiana Code section 34-47-3-5 provides in part,

(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:

(1) before answering the charge; or

(2) being punished for the contempt;

to be served with a rule of the court against which the contempt was alleged to have been committed.

(b) The rule to show cause must:

(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;

(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and

(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.

(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.

[23] Mother argues Father's motion does not comply with the statute because it “does not contain any specific dates of the actions he alleges[.]” Appellant's Br. p. 27. But the statute only requires the time be specified “with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge” against them. Ind. Code § 34-47-3-5(b)(2) (1998). Here, Father's motion indicates that between March 17 and April l6, 2025, Mother had been failing to comply with the court's order. This timeline is sufficiently specific to put Mother on notice as to the nature and circumstances of the charge.

[24] Mother also argues she should have been given an opportunity to be “purged” of the contempt under Subsection (c). Appellant's Br. p. 28. However, our Supreme Court has explained that the “purge” portion of the statute “typically only applie[s] to cases where the trial court has ordered jail time to coerce action by the contemnor.” Reynolds v. Reynolds, 64 N.E.3d 829, 835 (Ind. 2016). This is consistent with the purpose of civil contempt which is “not meant to punish the contemnor” but rather to “coerce action by the contemnor for the benefit of the aggrieved party[.]” Id. Here, the trial court did not order jail time, but rather ordered Mother to pay Father's attorney's fees relating to the contempt motion—$350. Accordingly, the trial court did not abuse its discretion in finding Mother in contempt.⁴

IV. Motion to Correct Error

[25] Lastly, Mother challenges the denial of her motion to correct error. Specifically, citing Indiana Trial Rule 63(A), Mother asserts the magistrate judge who presided over the evidentiary hearing should have signed the order on the motion to correct error. Trial Rule 63(A) provides,

The judge who presides at the trial of a cause or a hearing at which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating to the evidence and the conduct of the trial or hearing after the trial or hearing is concluded.

“The judge who presided at trial should rule on post-trial motions because parties are entitled to have issues determined by the judicial entity hearing the evidence and observing the demeanor of the witnesses.” In re Marriage of Turner v. Turner, 785 N.E.2d 259, 262 (Ind. Ct. App. 2003) (internal quotation omitted).

[26] We first note it is unclear whether Trial Rule 63(A) applies between presiding judges and their magistrates. Mother does not point us to any such cases. In Christenson v. Struss, 855 N.E.2d 1029, 1034 (Ind. Ct. App. 2006), we expressly held Trial Rule 63(A) did not prevent a presiding judge from ruling on a motion to correct error where the magistrate conducted the initial evidentiary hearing. However, our decision was based in large part upon a statute—which has since been amended—precluding magistrates from issuing final, appealable orders. See Ind. Code § 33-23-5-8 (2004).

[27] Even assuming the presiding judge's ruling on the motion to correct error violated Trial Rule 63(A), this defect is merely a technical one that does not rise to the level of reversible error. See Tener v. Tener, 407 N.E.2d 1198, 1201 (Ind. Ct. App. 1980) (successor judge's ruling on a motion to correct error in violation of Trial Rule 63(A) was a technical defect). “This court will disregard technical errors or defects which did not prejudice the substantial rights of a defendant.” Collins v. State, 873 N.E.2d 149, 157 (Ind. Ct. App. 2007) (quotation omitted), trans. denied. Mother's motion to correct error asserts a variety of alleged errors in the proceedings. However, Mother did not object to any of these alleged errors, and therefore her motion to correct error was properly denied. Stewart v. Fort Wayne Cmty. Schs., 535 N.E.2d 1238, 1239 n.2 (Ind. Ct. App. 1989) (“If a party fails to object at trial, the error cannot be raised on appeal or in a Motion to Correct Error.”). As such, we cannot say her substantial rights were prejudiced.

[28] Affirmed.⁵

FOOTNOTES

1.   Both parties continue to enjoy joint legal custody.

2.   Mother did not object to the admission of four of the five exhibits at trial. She did object to the admission of the probable cause affidavit but did so on the basis of relevance. See Tr. Vol. II pp. 44-45.

3.   To the extent Mother argues the cumulative effect of these alleged errors deprived her of a fair hearing, we disagree. As indicated above, while the trial court may have erred in certain respects, there was no resulting prejudice to Mother. Thus, reversal is not warranted. See Thompson v. State, 728 N.E.2d 155, 163 (Ind. 2000) (“Assuming for the sake of argument that under some circumstances the cumulative effect of trial errors may warrant reversal even if each might be deemed harmless in isolation, in this case it is clear that no prejudice resulted from any of the erroneous rulings and thus their cumulative effect remains at zero.”).

4.   Mother also argues that, because the finding of contempt was erroneous, the court erred in ordering her to pay $350 of Father's attorney's fees as a contempt sanction. But this argument fails as we have upheld the finding of contempt, and “[t]he trial court has inherent authority to award attorney fees for civil contempt.” Winslow, 969 N.E.2d at 1093.

5.   Throughout her brief, Mother seemingly references other alleged errors. See Appellant's Br. pp. 14, 26 (alleging improper service of several court filings); p. 15 (alleging violation of local rules); p. 23 (alleging errors in the child-support calculation). To the extent she raises these as freestanding arguments, they do not comply with our appellate rules. The arguments are not listed as issues in her statement of issues, nor does she support these contentions sufficiently with citations to the record or legal authority or with the relevant standards of review. See Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]”). As such, we will not address these arguments. See Martin v. Brown, 129 N.E.3d 283, 285 (Ind. Ct. App. 2019) (“Failure to present a cogent argument results in waiver of the issue on appeal.”).

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.