Derek Miller, Appellant v. Sarah Miller Appellee (2026)

MEMORANDUM DECISION

[1] Derek Miller (“Father”) appeals the trial court's ruling on his information for contempt and motion for emergency hearing on summer parenting time as well as its order granting a motion for modification of child support filed by Sarah Miller (“Mother”).¹ We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] Father and Mother are parents to a daughter, A. (“Child”), born in 2019. The parties’ marriage ended in April 2022 at which time they filed a “Summary Dissolution of Marriage Decree and Written Waiver of Final Hearing” (“Settlement Agreement”) that was approved by court order. Appellant's Appendix Volume II at 20. The Settlement Agreement provides that the parties will share joint legal custody of Child with Mother being the primary physical custodian. Regarding “Parenting Time,” the Agreement provides in relevant part as follows:

2.1 That [Father] shall have parenting time with [Child] at the following times.

Monday from 10:00 a.m. to Wednesday at 10:00 a.m., with the parties meeting in Mt. Vernon, Indiana for pick-ups and drop-offs. [Father] shall also be entitled to begin his parenting time on alternate weekends when [Mother] works at 1:00 p.m. on Sunday․

The Parties shall be entitled to one week parenting time in the summer with reasonable notice to the other.

The [P]arties shall use the following schedule in regard to the following holidays:

In odd numbered years, [Mother] shall have [Child] on Thanksgiving Day from 9:00 a.m. to 4:00 p.m., and [Father] shall have [Child] from 4:00 p.m. to 10:00 a.m. on the following morning. [Mother] shall have [Child] Christmas Eve from 10:00 a.m. to Christmas Day at Noon, and [Father] shall have [Child] from Christmas Day at Noon to December 26th at 10:00 a.m.

In even numbered years, [Father] shall have [Child] on Thanksgiving Day from 9:00 a.m. to 4:00 p.m., and [Mother] shall have [Child] from 4:00 p.m. to 10:00 p.m. on the following morning. [Father] shall have Christmas Eve from 10:00 a.m. to Christmas Day at Noon, and [Mother] shall have Christmas [D]ay at Noon to December 26th at 10:00 a.m.

* * * * *

2.3 [Father] shall have all holiday parenting time pursuant to the parenting time guidelines unless agreed to otherwise by the parties or provided for specifically herein.

* * * * *

2.7 When [Child] starts kindergarten, [Father's] week-time parenting time shall be modified to alternate weekends from 6:00 p.m. on Friday to 6:00 p.m. on Sunday. If [Father] is in the Evansville area he shall be entitled to parenting time with reasonable notice, so long as said parenting time is reasonable in duration and frequency.

Id. at 22-24.

[3] Child started school in the fall of 2024. According to Father, he “timely suggested a suitable schedule in accordance with the Indiana Parenting Time Guidelines to split [Child's] school vacation for the winter break” but Mother “did not attend the requested drop off, and Father did not receive extended time for the winter break.” Appellant's Brief at 6 (citing Transcript Volume II at 10-13). On January 21, 2025, Father filed a Verified Information for Contempt requesting the court to “incorporate the Indiana Parenting Time Guidelines and order Mother to comply as a sanction of her contempt.” Appellant's Appendix Volume II at 34. On February 14, 2025, Mother filed a Petition to Modify Child Support. On June 16, 2025, Father filed a Motion for Emergency Hearing on Summer Parenting Time alleging that Child “is now six (6) years old, and while the order does not provide for it, the Indiana Parenting Time Guidelines (IPTG) provide that Father is entitled to half of the summer break beginning at the age of five, unless otherwise agreed upon or ordered by the Court.” Id. at 39. Father further requested that the court establish “a clear and enforceable summer parenting time schedule consistent with the Indiana Parenting Time Guidelines.” Id. at 40.

[4] On July 17, 2025, the court held a hearing on the pending motions. During the hearing, when asked by her counsel specifically about the days surrounding the Christmas holiday and that portion of the Settlement Agreement, Mother stated that she believed “that we can amend it, if it need be.” Transcript Volume II at 78. When asked, “Okay. If [Father] really wants to modify the agreement to include one half of the winter break as the guidelines define it, are you okay with that,” Mother responded, “Yes.” Id. at 78-79. Thereafter, when Mother was asked if she believed it would be in Child's best interests to have Father's summer parenting time “expanded,” Mother stated that she believed that Father should have “one week every month of the summer” so that “it would be like adding three of those so that he would have a total of four weeks, one week each month that Child would be there ․ [a]long with his every other weekend.” Id. at 100-101.

[5] On August 15, 2025, the court issued its order concluding in relevant part:

12. Regarding [Father's] Information for Contempt regarding holiday parenting time: The [Settlement Agreement] states, “[Father] shall have Christmas Day at Noon to December 26th at 10 a.m.” It does not say that he shall also have the remainder portion of the Christmas Break pursuant to the Guidelines. The [Settlement Agreement] says, Father “shall have holiday parenting time pursuant to the parenting time guidelines unless agreed to otherwise by the parties or provided for specifically herein.” The parties specifically addressed Christmas to the contrary of the Guidelines and therefore the catch-all provision of the Guideline holiday time does not apply. [Father's] information for Contempt regarding holiday time is denied.

13. Regarding the extended summer parenting time: The [Settlement Agreement] does not state that [Father] shall receive half of the summer. (The Court notes that [Father] might be entitled to half of the summer per the Guidelines but the [Settlement Agreement] does not incorporate the Extended Parenting Time Guidelines.) There is no Motion to Modify before the Court, therefore, the Court cannot enforce half of the summer parenting time.

14. There being only a $2.00 difference between the current child support order and the recently calculated child support (Hearing Exhibit B), the Court denies [Mother's] Motion to Modify Child Support.

Appellant's Appendix Volume II at 15-16. Both Father and Mother filed motions to correct error. On September 15, 2025, the court denied Father's motion but granted Mother's motion and revised the child support order.

Discussion

[6] We begin by observing that this case comes to us upon the denial of Father's motion for contempt which alleged that Mother “denied” him the agreed upon parenting time with Child “over Christmas Break,” and his motion for emergency hearing which alleged that Mother “unreasonably denied” him his “right to extended [summer] parenting time.” Appellant's Appendix Volume II at 34, 39. On appeal, Father asserts that the trial court improperly interpreted the parties’ Settlement Agreement regarding his entitlement to certain parenting time during Child's winter break from school and to extended summer parenting time.

[7] Upon review of the trial court's denial of Father's motions, we must look to the parties’ Settlement Agreement. A divorce settlement agreement is a contract that we interpret like any other, meaning we will apply a de novo standard of review to the trial court's interpretation. Ferrill v. Ferrill, 143 N.E.3d 350, 355 (Ind. Ct. App. 2020) (citing Pohl v. Pohl, 15 N.E.3d 1006, 1009 (Ind. 2014)). Settlement agreements are binding on the parties once the dissolution court merges and incorporates that agreement into the divorce decree. Copple v. Swindle, 112 N.E.3d 205, 211 (Ind. Ct. App. 2018). If the terms are clear and unambiguous, those terms are deemed conclusive. Id.

[8] Regarding Father's motion for contempt as to Mother's failure to allow him to spend half of “Christmas break” with Child, as noted by the trial court, the plain language of the Settlement Agreement provides that in odd numbered years “[Father] shall have Christmas Day at Noon to December 26th at 10 a.m.” Appellant's Appendix Volume II at 22. The Settlement Agreement does not say that Father shall also have the remainder portion of the winter break pursuant to the Indiana Parenting Time Guidelines. Although the Settlement Agreement additionally says that Father “shall have holiday parenting time pursuant to the parenting time guidelines unless agreed to otherwise by the parties or provided for specifically herein,” id. at 23, the parties here specifically addressed the Christmas holiday to the contrary of the Guidelines and therefore the catch-all provision of the Settlement Agreement regarding holiday parenting time does not apply.

[9] Even if we were to accept Father's interpretation of the phrase “holiday parenting time” to include the remaining portion of the winter break, to be held in contempt for failing to comply with a court order, a party must have willfully disobeyed the order. Deel v. Deel, 909 N.E.2d 1028, 1032 (Ind. Ct. App. 2009). That is to say, “[t]he order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated.” Id. “A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.” Id. In light of our interpretation of the plain language of the agreement as well as the record indicating that the parties had previously acted in accordance with such interpretation which did not provide for Father to have half of winter break with Child, we cannot say that the issue was clear and thus conclude that Mother did not willfully disobey an order of the court. Accordingly, we affirm the court's determination that Mother was not in contempt.

[10] Regarding Father's emergency motion pertaining to summer parenting time, we observe that the Settlement Agreement specifically provides for summer parenting time in stating, “[t]he Parties shall be entitled to one week parenting time in the summer with reasonable notice to the other.” Appellant's Appendix Volume II at 22. As found by the trial court, the Settlement Agreement does not provide that Father shall receive half of the summer. Although Father suggests on appeal that he “is entitled to half of the summer vacation time according to the [Settlement Agreement],” Appellant's Brief at 9, this is contrary to the position he maintained in his pleadings and at trial. See Appellant's Appendix Volume II at 39 (averment in the Emergency Motion for Summer Parenting Time that, while the Settlement Agreement “does not provide for it, the Indiana Parenting Time Guidelines (IPTG) provide that Father is entitled to half of the summer break․”); Transcript Volume II at 22, 61 (Father testifying that he understood “the agreed order for parenting time doesn't grant [him] extended parenting time consistent with the Guidelines” and that he is “not entitled to one half of the summers, as we sit here today”). A party cannot change his theory on appeal and argue an issue that was not properly presented to the trial court. Carmichael v. Siegel, 754 N.E.2d 619, 634 (Ind. Ct. App. 2001). We affirm the court's interpretation of the Settlement Agreement and its order denying Father's emergency motion pertaining to summer parenting time.

[11] Despite the aforementioned conclusions, our inquiry does not end. Specifically, we turn to address the trial court's determination that it was without authority to modify the Settlement Agreement as it pertains to Father's parenting time absent a petition for modification. It is true that “[l]ongstanding Indiana law has prohibited trial courts from sua sponte ordering a change of custody.” Bailey v. Bailey, 7 N.E.3d 340, 344 (Ind. Ct. App. 2014) (citations omitted). Indeed,

when such an important issue as the custody of children is involved, a modification generally can be ordered only after a party has filed a petition requesting such a modification, the other party has notice of the filing, and a proper evidentiary hearing is held at which both parties may be heard and the trial court fully apprised of all necessary information regarding change of circumstances and a child's best interests before deciding whether a modification should be ordered.

Id.

[12] However, it is well settled that pursuant to Ind. Trial Rule 15(B), issues raised by the pleadings can be altered by the evidence adduced at trial where the parties have impliedly or expressly consented to new issues being tried. Id. (citing Glover v. Torrence, 723 N.E.2d 924, 934 (Ind. Ct. App. 2000)). “Still, a party is entitled to some notice that an issue is before the court before it will be determined to have been tried by consent.” Id. “Both parties must actually litigate the new issue, and a new issue may not be interjected under the pretense that the evidence was relevant to some properly pleaded matter. Id.

[13] Moreover, although mediated settlement agreements are binding contracts, we note that we do not treat a settlement agreement regarding the care of children the same as a settlement agreement involving property, as the paramount concern in the former is the best interests of the child. Moell v. Moell, 84 N.E.3d 741, 744 (Ind. Ct. App. 2017). Accordingly, a trial court has authority to modify a settlement agreement involving a child if such modification would serve the best interests of the child. Id.

[14] Our review of the record reveals that Mother and Father expressly litigated both the Christmas break and summer parenting time issues, and that those issues were not simply interjected under the pretense that the evidence was relevant to another pleaded matter. Significantly, Mother agreed on the record to a modification of Father's parenting time. When asked, “[i]f [Father] really wants to modify the agreement to include one half of the winter break as the guidelines define it, are you okay with that,” Mother responded, “Yes.” Transcript Volume II at 78-79. Thereafter, when Mother was asked if she believed it would be in Child's best interests to have Father's summer parenting time “expanded,” Mother stated that she believed that Father should have “one week every month of the summer” so that “it would be like adding three of those so that he would have a total of four weeks, one week each month that Child would be there ․ [a]long with his every other weekend.” Id. at 100-101. In short, the modification of Father's parenting time was tried by consent of the parties and the court abused its discretion in failing to modify his parenting time in accordance with Mother's agreement on the record.

[15] For the foregoing reasons, we affirm the court's order denying Father's motion for contempt and his emergency motion pertaining to summer parenting time. However, we reverse the court's order to the extent it fails to address the modification of Father's parenting time and hold that Father is entitled to one half of winter break and at least four weeks of summer parenting time. We remand for the entry of a revised order setting forth Father's parenting time consistent with this opinion and which determines Father's child support obligation based upon his modified parenting time.

[16] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   The record reveals that Mother has since changed her name to “Sarah K. Lunsford” and many of her filings reflect that name change. However, we refer to the parties by the names used in the appealed order.

Brown, Judge.

Altice, J., and DeBoer, J., concur.