B.B., Appellant-Petitioner v. A.S., Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] For many years, B.B. (“Mother”) and A.S. (“Father”) (collectively, “Parents”) were engaged in a romantic relationship. Two children, T.S. and D.S. (“Child”), were born during their relationship. Parents’ relationship ended in February of 2025, by which time T.S. had reached the age of majority. Parents came to an agreement regarding custody, parenting time, and the division of their joint assets (“the Agreement”). Shortly after the trial court approved the Agreement, Mother petitioned to modify custody and Father's parenting time with Child. Following a multi-day hearing, the trial court modified the agreed-upon custody arrangement to grant Mother sole legal custody of Child. The trial court denied Mother's request to modify Father's parenting time with Child and reaffirmed the portion of the Agreement relating to certain real estate. Mother challenges the trial court's order on appeal. We affirm.

Facts and Procedural History

[2] Although they were never legally married, Parents were engaged in a long-term romantic relationship that ended on February 9, 2025. Child had been born to Parents on February 27, 2016. After Parents’ relationship had ended, Mother filed a paternity action and an action concerning division of their real estate and personal property. At Mother's request, these actions were consolidated into one action.

[3] Parents entered into the Agreement, which covered, inter alia, custody, parenting time, and division of their assets, including the familial home. With regard to custody and parenting time, Parents agreed to the following:

3. Custody. That [Mother] and [Father] agree that [they] shall share joint legal and joint physical custody of [Child].

4. Parenting Time[.] That Mother and Father shall have parenting time as the parties agree, [h]owever, if the parties are unable to agree, the division of parenting time shall be as follows:

a. The parties shall rotate parenting time with a week on-week off schedule.

b. The week on-week off schedule shall be Saturday morning through the following Saturday [m]orning.

c. The parties shall have a midweek, Wednesday parenting time, during the other parent's week, from 5pm [(sic)] to 8 pm.

d. If the parties are unable to agree upon the Holidays and Special days, they shall follow those outlined in the [Indiana Parenting Time Guidelines (“IPTG”)] with Father following those outlined for non-custodial and Mother following those outlined for custodial.

e. The parties shall follow the General Provisions of the [IPTG] including the Opportunity for Additional Parenting Time.

Appellant's App. Vol. II pp. 16–17 (emphases in original). With regard to their home, Parents agreed, inter alia, as follows:

16. Real Estate. That the parties own real estate located [in] Anderson, IN 46011 (hereinafter-Real Estate). That [Father] shall have set over to him the Real Estate as his sole and separate property, subject to the following terms and conditions as set out herein.

a. That [Father] shall make every reasonable attempt to refinance the Mortgage and the Home Equity Line of Credit into his own name. If [Father] is unable to refinance the Mortgage and the Home Equity Line of Credit into his own name within Ninety-days (90) of the approval of this agreement, and pay [Mother] her equitable share of the Real Estate as outlined herein, the Real Estate shall be sold subject to the terms and conditions outlined below in paragraph 16 (d).

b. That if [Father] is able to Refinance the Mortgage and Home Equity Line of Credit within Ninety-days (90), he shall pay to [Mother], upon the refinance, one-half of the net equity from the Real Estate, which shall be deemed as Seventy Thousand Dollars ($70,000.00) or one-half net equity which shall be based off the appraised value upon refinance, whichever is greater. This obligation shall be paid in conjunction with [Father] refinancing the Mortgage and Home Equity Line of Credit.

Appellant's App. Vol. II p. 20 (emphasis in original). The trial court approved the Agreement on April 9, 2025.

[4] Beginning shortly after the trial court approved the Agreement, Parents engaged in angry and/or antagonistic behavior towards each other, and an order of protection was issued against Father for the protection of Mother.¹ Both have also accused the other of contemptuous behavior.

[5] On May 15, 2025, Mother petitioned to modify the trial court's prior custody and parenting order, stating that she believed “that the prior parenting time and custody order [was] no longer in the best interest of [Child] and a substantial change in circumstances warrant a modification.” Appellant's App. Vol. II p. 28. On June 3, 2025, Parents stipulated that Father's “friend, Christina Hannah,[² ] is not permitted to be present during” Father's parenting time with Child and “[n]either party may use alcohol or illegal drugs during their parenting time with” Child. Appellant's App. Vol. II p. 46.

[6] Following a multi-day hearing, on September 18, 2025, the trial court issued its order resolving the pending issues. The trial court's order referenced the Agreement as well as a number of incidents which were said to have occurred between Parents after they had entered into the Agreement. With regard to Mother's request to modify custody, the trial court noted that Mother “seeks to change the current legal custody of [Child].” Appellant's App. Vol. II p. 53. Citing Indiana Code sections 31-17-2-8 and 31-17-2-21,³ which relate to factors to be considered when making custody decisions and modifications of custody decisions, the trial court concluded as follows:

[Father] argues there has not been a substantial change since [the Agreement]. Since April 9, 2025, an ex parte protective order was made permanent, protecting [Mother] from [Father], and a criminal charge for invasion of privacy was filed against [Father]. These are substantial changes. These substantial changes implicate [Indiana Code sections] 31-17-2-8(2), [ ] 31-17-2-8(6), [ ] 31-17-2-15(1), and [ ] 31-17-2-15(2). The court reviews the statutory factors. [Child] is 9 years of age. [Father] wants joint legal custody, and [Mother] wants sole legal custody. There is no evidence of [Child's] wishes. [Child] has a strong bond with each parent. There is no evidence that [Child's] school grades, friendships, or pastimes are affected by his parents’ conflict. There is evidence that [Father] has an inability to regulate his anger and emotions. There is no evidence of violence directed at [Child]. There is evidence of threats, intimidation, and coercion by [Father] directed at [Mother]. There is also some evidence of threatening language by [Mother] directed at [Father]. There is no evidence of a de facto guardian. There is evidence that the parties are not able to communicate and cooperate to advance [Child's] interests. The parties do live near one another. Lastly, each home is suitable for [Child].

A protective order is in place because of [Father's] conduct and statements to [Mother]. A protective order based on the above recited facts makes it clear that joint legal custody is inappropriate. Joint legal custody requires open lines of communication and respect for the other parent. The evidence is that the open lines of communication and respect [Father] previously had for [Mother] ended after their separation, and he now views her as the one who destroyed his family and brought emotional damage to [Child]. This attitude manifested itself within weeks of [the Agreement] and ultimately led to him facing a criminal charge. The court grants sole legal custody of [Child] to [Mother]. [Child's] interest is served by this custody change because his physical and emotional health is not improved when [Father] cannot work with [Mother] to arrange a surgery or select a counselor without court intervention.

Appellant's App. Vol. II p. 55.

[7] With respect to Mother's request for the trial court to modify Father's parenting time with Child, the trial court concluded as follows:

Under [Indiana Code section] 31-17-4-2, the court may modify an order granting or denying parenting time whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time unless the court finds the parenting time might endanger the child's physical health or significantly impair the child's emotional development.

[Father] and [Mother's] years-long relationship is done. It is clear that animosity and hostility now permeate their interactions. There is no evidence that [Father] endangers the physical health or significantly impairs [Child's] emotional development. The court is mindful that [Child] is exposed to his parents’ conflict, and this is not beneficial. The court is hopeful that his counseling can help him cope with what he experiences. However, this hostility is directed among the parents and not towards [Child]. There is no evidence that [T.S.] or [Child] has ever suffered physical or emotional injuries while in the sole care of [Father]. The court does not disregard the evidence that [Father] permits [Child] to stay up late at night and ride a four-wheeler at night; however, this is not sufficient to conclude that leaving [Child] with [Father] endangers his physical health or emotional development. As previously ordered, [Father] shall not consume alcohol while on pretrial release and shall never consume alcohol while he is exercising his parenting time with [Child].

Appellant's App. Vol. II p. 56.

[8] Finally, with regard to the familial home, the trial court concluded as follows:

The parties own a house located [in Anderson]. The [Agreement] awarded the house to [Father], with [Mother] receiving her equity share. [Father] had 90 days to refinance the mortgage and home equity line of credit into his own name. If he could refinance, then [Mother] was to receive a minimum of $70,000.00 or more if the appraised value for refinancing was higher than the current value of the house. If [Father] did not refinance the house within 90 days, then it was to be sold by a realtor. After the sale, [Mother] was to receive her equity share of the house.

[Father] did not refinance the house within 90 days. [Mother] disagreed with the bank's refinance appraisal and refused to participate in the refinancing. [Mother's] decision prevented [Father] from refinancing the house. The [Agreement] mandates that [Mother] receive $70,000.00 from a refinancing regardless of the appraised value. The agreement did not give [Mother] veto power if she disagreed with the appraised value. The agreement provided a minimum; it did not provide a mechanism for [Mother] to maximize her equity position. The court orders [Father] and [Mother] to complete the refinancing process within 90 days of this order. If the parties do not refinance the house, then it shall be listed with a realtor they select within 120 days of this order. Proceeds from a sale shall be distributed per the [Agreement].

Appellant's App. Vol. II pp. 57–58.⁴

Discussion and Decision

[9] “When reviewing judgments with findings of fact and conclusions of law, Indiana's appellate courts 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.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (internal quotation omitted). “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Id. (internal quotation omitted).

Additionally, there is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters. 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. 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. Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment. The party seeking to modify custody bears the burden of demonstrating the existing custody should be altered. Indeed, this more stringent standard is required to support a change in custody, as opposed to an initial custody determinations where there is no presumption for either parent because permanence and stability are considered best for the welfare and happiness of the child.

Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (internal quotations and citation omitted).

I. The Trial Court did not Apply the Wrong Standard to Mother's Request to Modify Custody and Father's Parenting Time

[10] With regard to a modification of a custody order, Indiana Code section 31-17-2-21 provides, in relevant part, that

(a) 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 under section 8 ․ of this chapter.

(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.

Indiana Code section 31-17-2-8 provides, in relevant part, that

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.

With respect to a modification of parenting-time rights, Indiana Code section 31-17-4-2 provides that

[t]he court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.

[11] Initially, we note that in challenging the trial court's order, Mother does not challenge any of the trial court's findings of fact, which we accept as true. See Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind. Ct. App. 2020) (“[W]hen findings of fact are unchallenged, this Court accepts them as true.”), trans. denied. Instead, Mother contends that the trial court applied the wrong standard to her request for a modification of physical custody.⁵ Specifically, she argues that “[t]he trial court applied to Mother's motion to modify physical custody the parenting time restriction standard, concluded that Father does not endanger [Child], and then appears to have determined that that conclusion also is dispositive of the physical custody question.” Appellant's Br. p. 13.

[12] The relevant statutes make it clear that both custody and parenting-time decisions should be made in a manner that serves the best interests of the child. See Ind. Code §§ 31-17-2-21; 31-17-4-2. It is clear from the record that the trial court considered Child's best interests in reaching both its custody and parenting-time decisions. The trial court concluded that while a modification of the legal custody of the Child was warranted due to the contentious nature of the relationship between Parents, a modification of Father's parenting-time rights was not in Child's best interests. The record most favorable to the trial court's order supports its judgment in this regard.

[13] While Mother made numerous unproven allegations against Father, the evidence presented by Parents indicated that Father and Child enjoyed a strong bond, Child's adult sibling resided with Father, Father maintained a suitable home, and Child's welfare was not threatened by spending time with Father. In denying Mother's request to modify Father's parenting-time rights, in addition to its best-interests-related conclusions relating to custody, the trial court concluded that “[t]here is no evidence that [Father] endangers the physical health or significantly impairs [Child's] emotional development” and “[t]here is no evidence that [Child] has ever suffered physical or emotional injuries while in the sole care of [Father].” Appellant's App. Vol. II p. 56. Given the lack of evidence indicating that a significant decrease in Father's parenting time with Child would be in Child's best interest, we conclude that the trial court did not abuse its discretion in denying Mother's request to modify Father's parenting-time rights.⁶

II. The Trial Court did not Misinterpret the Agreement as it Related to Parents’ Home

[14] Property settlement agreements are governed by the same rules of construction as other contracts. The task is to determine and implement the parties’ intent when they entered the contract. And to do that, courts start with the language of the parties’ agreement. If the contract's terms are unambiguous, then they are conclusive of the parties’ intent, and courts give the contract its plain meaning. Thus, when reviewing an unambiguous written contract, courts look only to that document, staying within its four corners.

Wohlt v. Wohlt, 245 N.E.3d 611, 616 (Ind. 2024) (internal citations omitted).

[15] With regard to the home, the Agreement unambiguously provided that if Father was able to refinance the mortgage and home-equity line of credit, “he shall pay to [Mother], upon the refinance, one-half of the net equity from the Real Estate, which shall be deemed as Seventy Thousand Dollars ($70,000.00) or one-half net equity which shall be based off the appraised value upon refinance, whichever is greater.” Appellant's App. Vol. II p. 20 (emphasis added). In its order, the trial court stated that

[i]f [Father] could refinance, then [Mother] was to receive a minimum of $70,000.00 or more if the appraised value for refinancing was higher than the current value of the house.․ The parties’ agreement mandates that [Mother] receive $70,000.00 from a refinancing regardless of the appraised value. The agreement did not give [Mother] veto power if she disagreed with the appraised value. The agreement provided a minimum; it did not provide a mechanism for [Mother] to maximize her equity position.

Appellant's App. Vol. II pp. 57–58 (emphases added).

[16] Mother contends that the trial court misinterpreted the Agreement because it ordered that she was to receive $70,000.00 from the refinance of the home regardless of the appraised value of the home at the time of the refinancing. Mother's contention, however, does not reflect an accurate description of the trial court's order. In arguing that the trial court misinterpreted the Agreement, Mother focuses on the part of the trial court's order which states that the Agreement “mandates that [she] receive $70,000.00 from a refinancing regardless of the appraised value.” Appellant's App. Vol. II p. 58. Mother, however, completely ignores the rest of the trial court's order which explicitly states that $70,000.00 was the minimum to which she was entitled and that she would receive more if the appraised value was higher than the then-current value of the home. We agree with Father that the trial court's order merely reaffirmed the Agreement by stating that pursuant to the Agreement, Mother is entitled to receive at least $70,000.00 at the time of refinancing, potentially more, depending on the appraisal value of the home at that time.

[17] It appears that Mother had been unhappy with the appraisal value of the home, as determined by the bank, and, as a result, had refused to participate in finalizing the refinancing of the home.⁷ The trial court is correct that the Agreement did not grant Mother the right to refuse to participate in the refinancing if she was unhappy with the appraised value. It merely provided that she could potentially receive more than $70,000.00 in equity depending on the appraised value. Because the trial court's order accurately reflected the Agreement, we cannot say that the trial court erred in this regard.

[18] The judgment of the trial court is affirmed.

[19] I respectfully concur in result with the majority's opinion. Although I agree with the result reached by the majority, I write separately to express my view that Mother's motions and arguments should have been interpreted and analyzed differently.

[20] The majority contends that Mother did not request modification of physical custody. I disagree. The parties’ agreement provided for joint legal and physical custody. Mother filed a petition to modify custody and parenting time. At the hearing on this matter, Mother clearly requested a modification of legal custody and sought to have Father's parenting time (which was fifty percent of the time) modified to a “maximum” of the parenting time pursuant to the Indiana Parenting Time Guidelines. Tr. Vol. II p. 48. This is evidenced by Mother's proposed order, which was submitted to the trial court, and requested an order: (1) granting Mother sole legal and physical custody of the child; (2) restricting Father's parenting time until he complied with recommendations from a psychological evaluation; and (3) granting Father parenting time pursuant to the Indiana Parenting Time Guidelines after Father complied with the recommendations.

[21] Mother's request to modify Father's parenting time, thus, necessarily requested a modification of physical custody, along with her request for modification of legal custody. I agree that the trial court applied the incorrect legal standards. The trial court should have separately considered Mother's request for modification of legal custody; Mother's request for modification of physical custody; and Mother's request for a restriction on Father's parenting time.

[22] Indiana Code Section 31-14-13-6 provides that the 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 ⁸ and, if applicable, section 2.5 of this chapter.” This statute applies to both legal and physical custody. See generally In re Paternity of A.R.S., 198 N.E.3d 423 (Ind. Ct. App. 2022). We have also held that the factors listed in Indiana Code Section 31-14-13-2.3 ⁹ are relevant to a modification of legal custody. See id. at 434 (“When considering a modification of legal custody, a trial court should specifically consider whether modification is in the best interest of the child and whether there has been a change in one of the statutory factors governing awards of joint legal custody.”).

[23] On the other hand, when considering a petition to modify parenting time, “[t]he court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.” Ind. Code § 31-14-14-2. Because Mother was requesting that Father have parenting time less than the parenting time called for in the Guidelines, an analysis of Indiana Code Section 31-14-14-1(a) is also required here. That statute provides: “A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might: (1) endanger the child's physical health and well-being; or (2) significantly impair the child's emotional development.” Although the statute reads “might” endanger, our Courts have read the statute to mean “would” endanger. In re Paternity of J.K., 184 N.E.3d 658, 663 (Ind. Ct. App. 2022). Further, we have held that “parenting time awards consistent with the Parenting Time Guidelines meet the reasonableness requirement set forth in Indiana Code Section 31-14-14-1.” Id. at 665 (citing Clary-Ghosh v. Ghosh, 26 N.E.3d 986, 991 (Ind. Ct. App. 2015)).

[24] Regardless, however, even under this analysis, I conclude that the result here is not an abuse of discretion. In effect, the trial court granted Mother's request for a modification of legal custody and denied Mother's requests for a modification of physical custody and restricted parenting time. Under the facts presented, the trial court's decision was not an abuse of discretion. Accordingly, I concur in result.

FOOTNOTES

1.   Criminal charges have been filed against Father, alleging that he had violated the order of protection. The charges were pending as of the date of the trial court's order.

2.   Mother asserted that Father had “been associating with” Hannah, who Mother claimed was a drug user who had previously “overdosed on illegal substances[.]” Appellant's App. Vol. II p. 27. For his part, Father denied being in a relationship with Hannah and stated that he had not ever known her to use or to have overdosed on illegal drugs. Nevertheless, Father agreed to Mother's request that Child should not be around Hannah.

3.   We note that Indiana Code section 31-14-13-2, which is in relevant part identical to Indiana Code section 31-17-2-8, applies to initial custody decisions in paternity actions, such as the instant case. However, the trial court was not faced with the responsibility to make an initial custody decision as Parents agreed to the initial custody terms. This case involves the question of custody modification, to which Indiana Code section 31-17-2-21 applies.

4.   The trial court's order also found Parents in contempt and outlined a way that each could purge their contempt.

5.   We acknowledge that while Mother did not make any arguments below regarding physical custody, she argues on appeal that her request for a modification of Father's parenting time was essentially a request to modify Parents’ prior physical custody agreement. Mother cannot raise new issues on appeal and is bound by the issues raised before the trial court. See Young v. Tri-Etch, Inc., 773 N.E.2d 298, 299 (Ind. Ct. App. 2022) (providing that we will not consider new arguments on appeal because a party may not raise an issue on appeal which had not been raised before the trial court).

6.   Furthermore, to the extent that Mother argues that the trial court abused its discretion in making findings and conclusions regarding whether parenting time with Father would endanger Child, we again note that Mother made numerous unproven allegations of Father engaging in acts which would endanger Child. Thus, Mother's own allegations placed the question of endangerment squarely before the trial court.

7.   At the hearing, Mother submitted an appraisal value of the home that was $66,900.00 higher than that provided by the bank. Mother has cited no authority, and we are aware of none, that indicates that the bank was required to use her appraisal value in processing Father's refinancing of the home.

8.   The factors include:(1) The age and sex of the child.(2) The wishes of the child's 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 parents;(B) the child's siblings; and(C) any other person who may significantly affect the child's best interest.(5) The child's adjustment to home, school, and 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 2.5(b) of this chapter.Ind. Code § 31-14-13-2.

9.   Indiana Code Section 31-14-13-2.3(c) provides:In determining whether an award of joint legal custody under this section would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint legal custody have agreed to an award of joint legal custody. The court shall also consider:(1) the fitness and suitability of each of the persons awarded joint legal custody;(2) whether the persons awarded joint legal custody are willing and able to communicate and cooperate in advancing the child's welfare;(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) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody;(5) whether the persons awarded joint legal custody:(A) live in close proximity to each other; and(B) plan to continue to do so;(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint legal custody; and(7) whether there is a pattern of domestic or family violence.

Bradford, Judge.

Felix, J., concurs. Tavitas, C.J., concurs in result with opinion.