Samantha Rolph, Appellant-Respondent v. Stephen Gibson, Appellee-Petitioner (2026)

MEMORANDUM DECISION

Statement of the Case

[1] In 2014, Jayden Rolph (“Child”) was born to Samantha Rolph (“Mother”) and Stephen Gibson (“Father”). In 2025, Father had primary physical custody of Child during the academic school year. That spring, Father's wife Amy Gibson (“Stepmother”), Child, and siblings (the “Other Children”) moved to Washington to be closer to Mother, who lived in Oregon. Father remained in Indiana while looking for a job in Washington. By summer, Father abandoned the plans to relocate, and Stepmother and the Other Children returned to Indiana. Mother agreed to return Child to Indiana before the start of the new school year but later changed her mind and kept Child in Oregon. Father and Mother then filed opposing motions seeking respectively, contempt and modification. After an evidentiary hearing, the trial court found Mother in contempt and denied Mother's request to modify the parenting time. Mother now appeals and presents three issues for our review, which we revise and restate as the following two issues:

1. Whether the trial court abused its discretion by excluding certain evidence; and

2. Whether the trial court clearly erred when it denied Mother's motion to modify parenting time.

[2] We affirm.

Facts and Procedural History

[3] In October 2014, when Child was born, Mother and Father lived in Madison, Indiana. In 2017, Father established paternity. By 2020, Mother lived in California with Child, and Father had parenting time during summers and certain school breaks. By Summer 2022, Mother lived in Oregon, and Child expressed a desire to live full-time in Indiana with Father, Stepmother, and the Other Children. Mother and Father agreed to allow Child to live with Father, and Father later filed a petition to modify custody and parenting time to formalize that change. The trial court conducted a hearing on the petition (the “2022 Hearing”), during which Mother and Father advised the trial court they agreed to modify custody. Following the 2022 Hearing, the trial court entered an order (the “2022 Order”) that provided in relevant part as follows:

1. Petitioner/Father and Respondent/Mother shall share joint legal custody of the minor child.

2. Petitioner/Father shall have primary physical custody of the minor child during the academic school year.

3. Respondent/Mother shall have parenting time every summer from within one (1) week of the minor child's last day of school until one (1) week prior to the minor child's first day of school.

4. Respondent/Mother shall have parenting time each spring break and fall break during the years that she does not receive Christmas break.

Appellant's App. Vol. II at 17.

[4] In April 2025, Father and Stepmother planned to move their family, including Child, to Washington to be closer to Mother because, among other reasons, Mother “did not come and visit in the three years” that Child lived with Father. Tr. Vol. II at 9. Father discussed the possible relocation with Mother, and Mother assisted Stepmother in locating an apartment. Stepmother moved with Child and the Other Children to Washington while Father remained in Indiana to address pending criminal charges and continue working while searching for comparable work in Washington. During the time Child was in Washington with Stepmother, Stepmother and Mother shared parenting time equally on a week-to-week basis. Mother lived in Oregon approximately one hour away from Stepmother's apartment, so during Mother's weeks with Child, Mother drove Child to Washington so Child could ride the bus to school from Stepmother's apartment. By June, Father had not found comparable work in Washington, so Father and Stepmother agreed they would not be able to permanently relocate to Washington. Stepmother made arrangements to return to Indiana. The Other Children returned with Stepmother, but Child remained in Oregon with Mother for the summer, per the 2022 Order. Before Stepmother left, she and Father confirmed with Child that Child wanted to move back to Indiana, and Mother agreed to return Child to Father at the end of the summer. However, the “week before” Child was set to begin school in Indiana, Father “woke up to a text message” from Mother saying Mother “was not sending [Child]” back to Father. Tr. Vol. II at 13. Mother then “basically ignored” Father thereafter and refused to return Child to Father. Id.

[5] In July, Father filed a motion for contempt (“Father's Motion”) alleging that Mother was failing to abide by the 2022 Order by refusing to return Child to Father for the school year. The trial court set a hearing on Father's Motion for September 29. Prior to that hearing, Mother filed a document titled, “MOTION FOR MODIFICATION OF PARENTING TIME AND REQUEST FOR HEARING” (“Mother's Motion”). Appellant's App. Vol. II at 52.

[6] Mother appeared pro se at the September 29 hearing. As to Father's Motion, Mother testified that she did not return Child to Father at the end of the summer because she believed the 2022 Order became “void” after Child “moved ․ out of the state of Indiana” because the 2022 Order “no longer fit [the] situation.” Tr. Vol. II at 50. Mother confirmed that she had agreed to return Child to Father at the end of the summer and that Child was still in Oregon at the time of the hearing.

[7] As to Mother's Motion, Mother testified that she wanted parenting time modified to reflect Child primarily living with her; effectively, the “mirror image” of the 2022 Order. Tr. Vol. II at 55. During the hearing, Mother also requested child support, even though she did not file a motion requesting to modify child support. Mother believed modification was in Child's best interest because Father had recently been convicted of attempted battery on a minor, Father was experiencing marital discord with Stepmother, and Child had experienced “withdrawal and emotional numbness” since living in “the Washington/Oregon area.” Id. at 59. On cross-examination, Mother claimed a modification of custody was the same thing as a modification of parenting time. Father confirmed he was on criminal probation and denied marital discord apart from typical arguments.

[8] As to additional evidence, Mother wanted to admit several documents depicting text messages between herself and Father, Child, and Stepmother. Regarding the text messages involving Stepmother, the trial court initially commented that “[t]he text messages between you and Amy, Amy is not a party, so they would be hearsay.” Id. at 78. Mother attempted to admit the texts anyway. She was able to establish a foundation for one set of texts (the “Authenticated Messages”) but not for another (the “Unauthenticated Messages”). The trial court admitted the Authenticated Messages and excluded the Unauthenticated Messages.

[9] In October, the trial court issued its written order granting Father's Motion and denying Mother's Motion (the “2025 Order”). This appeal ensued.

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion by Excluding Certain Evidence

[10] Mother claims that the trial court abused its discretion by excluding certain evidence at trial. We generally review evidentiary rulings for an abuse of discretion. Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quoting Conley v. State, 972 N.E.2d 864 (Ind. 2012)), cert. denied, 145 S. Ct. 424 (2024). “[W]e may affirm the trial court's decision on any basis supported by the record,” Means v. State, 201 N.E.3d 1158, 1163 (Ind. 2023) (citing Ramirez v. State, 174 N.E.3d 181, 190 n.2 (Ind. 2021)), and we will reverse “only where the decision is clearly against the logic and effect of the facts and circumstances,” Russell, 234 N.E.3d at 858 (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)).

[11] Because Mother is challenging the exclusion of evidence, she must show that (1) the exclusion “affects a substantial right of the party” and (2) she informed the trial court of the substance of the excluded evidence “by an offer of proof, unless the substance was apparent from the context.” Ind. Evidence Rule 103(a)(2). “An offer of proof allows the trial and appellate courts to determine the admissibility of the testimony, as well as the potential for prejudice if it is excluded.” Heckard v. State, 118 N.E.3d 823, 828 (Ind. Ct. App. 2019) (citing Dylak v. State, 850 N.E.2d 401, 408 (Ind. Ct. App. 2006), trans. denied), trans. denied. “A valid offer to prove must explain three points: (1) the testimony's substance; (2) the testimony's relevance; and (3) the grounds for admitting the testimony.” Bedolla v. State, 123 N.E.3d 661, 666–67 (Ind. 2019) (citing Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998); Nelson v. State, 792 N.E.2d 588, 594 (Ind. Ct. App. 2003)).

[12] Mother specifically claims that the trial court abused its discretion by excluding (a) evidence “about events prior to the 2022 Order” and (b) the Authenticated and Unauthenticated Messages. Appellant's Br. at 16. We address each argument in turn.

a. Matters Before Last Custody Proceeding

[13] Mother argues the trial court erred by excluding evidence of “events prior to the 2022 Order.” Appellant's Br. at 16. At trial, Mother asked Father whether he “ma[d]e additional trips out to see” Child “[i]n the time prior to 2022, when Child was in [Mother's] home.” Tr. Vol. II at 23. The trial court sustained Father's objection thereto. Mother did not explain the substance of the testimony she wanted to elicit from Father or its relevance, and it is not apparent from the record what either would have been. Indeed, we fail to see how the details of Father's pre-2022 Order efforts to visit Child beyond the parenting time agreement were relevant to the issues raised by Mother's and Father's Motions, both of which concerned events occurring in 2025.

[14] Without any offer to prove the substance or relevance of the excluded testimony, we conclude that Mother failed to preserve for our review any alleged error in the trial court's exclusion of pre-2022 Order events. See Evid. R. 103(a)(2); Fowler v. State, 929 N.E.2d 875, 881 (Ind. Ct. App. 2010), trans. denied. Any alleged error in the exclusion of Mother's testimony is therefore waived, see Bedolla, 123 N.E.3d at 667 (citing Roach, 695 N.E.2d at 939) (“[A]ppellate courts cannot duly review whether a lower court properly excluded evidence if the party below did not ․ make an offer of proof.”), so we cannot say the trial court abused its discretion by excluding that testimony.

b. The Authenticated & Unauthenticated Messages

[15] Mother next argues that the trial court erred by “stat[ing] the incorrect legal standard[ ] in excluding” the Authenticated and Unauthenticated Messages. Appellant's Br. at 16. On appeal, Mother claims the trial court excluded the Authenticated and Unauthenticated Messages on hearsay grounds. According to Mother, the Authenticated and Unauthenticated Messages “should have been admitted” because Stepmother “was available to testify if necessary.” Id. at 17. Mother misrepresents the record. Although the trial court did say that the Authenticated and Unauthenticated Messages were hearsay, it did not exclude them on that ground. Rather, the trial court admitted the Authenticated Messages. As to the Unauthenticated Messages, they were not admitted because Mother could not authenticate their genuineness. At trial, Mother did not make an offer to prove for the Unauthenticated Messages, so her argument is waived. See Bedolla, 123 N.E.3d at 666–67 (citing Roach, 695 N.E.2d at 939).

2. The Trial Court Did Not Clearly Err by Denying Mother's Motion

[16] Mother argues the trial court erred by denying Mother's Motion. The trial court here entered findings and conclusions sua sponte, so we review the “issues covered by the findings with a two-tiered standard of review that asks whether the evidence supports the findings, and whether the findings support the judgment.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016) (citing In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014)). We review any issue not covered by the findings “under the general judgment standard,” which means we will affirm “on any legal theory supported by the evidence.” Id. at 123–24 (citing S.D., 2 N.E.3d at 1287).

[17] Our review is also guided by the following considerations unique to family law cases:

[T]here is a well-established preference in Indiana “for granting latitude and deference to our trial judges in family law matters.” 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.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). “On appeal 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.” Id. “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) (citations omitted).

Steele-Giri, 51 N.E.3d at 124. Furthermore, we accept as true any findings not challenged on appeal. See R.M. v. Ind. Dep't of Child Servs., 203 N.E.3d 559, 564 (Ind. Ct. App. 2023) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)).

[18] Specifically, Mother contends that the trial court erred by (a) declining to treat Mother's Motion as a motion to modify custody; (b) “fail[ing] to find that the parties had modified” the 2022 Order through their conduct, Appellant's Br. at 18; and (c) determining a modification was not in Child's best interests. We address each contention in turn.

a. Treatment of Mother's Motion

[19] First, Mother argues that the trial court erred by declining to treat Mother's Motion as a motion for modification of custody. Specifically, Mother claims that the trial court elevated form over substance by “limit[ing] Mother's request to the title of her pleading and not the substantive claim.” Appellant's Br. at 15. In relevant part, Indiana Trial Rule 7(B) provides that a motion must state the party's basis for requesting a court order and the relief or order sought. Mother's Motion provided as follows:

MOTION FOR MODIFICATION OF PARENTING TIME AND REQUEST FOR HEARING

Respondent Samantha Rolph, pro se, now files her Motion a Modification of Parenting Time and Request for Hearing for the reason that she believes modification of Father's parenting time is in the child's best interest and that there has been a substantial change in at least one of the factors the Court may consider.

WHEREFORE Respondent respectfully requests the Court set a hearing date on her request for modification and for all other relief the Court deems just.

Appellant's App. Vol. II at 52.

[20] We cannot agree with Mother that the substantive claim in Mother's Motion was a motion to modify custody. Mother's Motion mentioned neither legal nor physical custody. And, during the hearing, Mother waivered about her requests; while she did mention that she wanted some changes that did not deal with parenting time, such as clarification on which parent pays for Child's airfare, limitation of Stepmother's communication with her, and establishment of child support, Mother's main goal was to have the majority share of parenting time (i.e. during the school year). To be sure, Mother did not ever request a change in legal custody. Thus, based upon this record, the trial court did not err by treating Mother's Motion as a motion to modify parenting time.

b. Modification by Conduct

[21] Mother next argues that a change of custody effectively occurred when Father stayed in Indiana while Stepmother temporarily lived in Washington with Child and the Other Children. “[A]n out-of-court agreement regarding support and visitation is not enforceable unless it is first approved by the trial court with jurisdiction or merged into an order of that court.” Zivot v. London, 981 N.E.2d 129, 137 (Ind. Ct. App. 2012) (citing Pickett v. Pickett, 470 N.E.2d 751, 754 (Ind. Ct. App. 1984)).

[22] Mother does not claim that the trial court approved a modification of custody; rather, she contends that out-of-court “modifications of custody are recognized by Indiana law.” Appellant's Br. at 18. In support of this claim, Mother cites In re Marriage of Jackson, 682 N.E.2d 549 (Ind. Ct. App. 1997), a case that addressed a child support arrearage. There, the father was previously court-ordered to pay child support, but subsequent to that order, the supported children all lived with him full-time, he paid “nearly all of their living expenses,” and the mother “provided very little financial support and ha[d] only cared for the children three or four days out of every month.” Id. at 552. This court therefore reversed the trial court's judgment requiring the father to pay the child support arrearage. Id.

[23] Here, the facts do not support Mother's contention that a change of custody effectively occurred. Where the children in Jackson all lived full-time with the father for years, and the father paid for a majority of their care, see id., Mother has not made and cannot make that claim here. Indeed, during the approximately three months Stepmother lived in Washington, Child lived with her approximately half of the time, Mother allowed Stepmother to choose Child's school, and Child took the school bus from Stepmother's home even during the weeks she stayed with Mother. While Mother was regularly unemployed, Father paid for all of Child's clothing and shoes; during Mother's weeks with Child, he also paid for Child's food when Child and Mother went out to eat. Mother's responsibilities to Child for the three months Stepmother lived in Washington are not comparable to those of the father's in Jackson. The trial court therefore did not err by declining to determine the parties modified the 2022 Order through their actions.

c. Child's Best Interests

[24] Third, Mother argues modification was in Child's best interests. A trial court “may” modify parenting time “whenever modification would serve the best interests of the child.” Ind. Code § 31-17-4-2. By comparison, a trial 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 under [Indiana Code section 31-17-2-8].” Id. § 31-17-2-21 (emphasis added). Both modifications require a trial court to consider the best interests of the child involved.

[25] Here, Mother does not specifically challenge any findings in the 2025 Order. Accordingly, we accept as true all the trial court's findings. See R.M., 203 N.E.3d at 565. The unchallenged findings include the following:

15. As to the modification of parenting time, the Court has considered the evidence presented and finds that the provisions of the Court's order dated December 6, 2022, continue to be in [Child's] best interest for the following reasons:

a. [Child] has strong connections with family, including two half siblings in Madison, Indiana.

b. [Child] has established relationships in the Madison school and community.

c. Mother's refusal to return [Child] to her home in Madison in August reflects a lack of attention to [Child's] need for connection to family, school and community.

d. Mother's refusal to allow continuing daily Facetimes between [Child] and her family in Madison, including her Father, reflects a disregard for the importance of [Child's] need for a strong relationship with both parents.

Appellant's App. Vol. II at 15.

[26] The trial court's findings support its conclusion that it is not in Child's best interest to modify parenting time. To the extent Mother argues the trial court should have considered Child's presence in Washington and Oregon, Child's mental health, and Father's criminal conviction as evidence that modification was in Child's best interest, that is simply a request to reweigh the evidence or reassess witness credibility, which we will not do. See Steele-Giri, 51 N.E.3d at 124.

[27] As Mother has failed to prove modification is in Child's best interest, the trial court's denial of Mother's Motion was not clearly erroneous. And, even if the trial court did err by failing to treat Mother's Motion as a motion to modify physical custody, Mother is not entitled to reversal. A trial court cannot modify custody unless modification is both in Child's best interest and there has been a substantial change in the best interest factors listed in Indiana Code section 31-17-2-8, I.C. § 31-17-2-21, and Mother has failed to prove modification is in Child's best interest.

[28] Finally, without any analysis, Mother claims the trial court's alleged errors support vacating the trial court's order “finding Mother in contempt and issuing sanctions,” Appellant's Br. at 15, 17, 19, in other words, the granting of Father's Motion. Because we conclude there was no error, we will not reverse the trial court's order granting Father's Motion.

Conclusion

[29] In sum, the trial court did not abuse its discretion by excluding certain evidence, and it did not clearly err by denying Mother's Motion. We therefore affirm the trial court on all issues raised.

[30] Affirmed.

Felix, Judge.

May, J., and Mathias, J., concur.