Carrie Green, Appellant v. Larry McDaniel, Appellee (2026)

MEMORANDUM DECISION

[1] Carrie Green (“Mother”) appeals the trial court's order modifying child custody and finding her in contempt. We affirm in part and reverse in part.

Facts and Procedural History

[2] On June 19, 2000, Mother and Larry McDaniel (“Father”) were married. Mother and Father had six children including J.M., born in 2006, Ar.M., born in 2009, Ay.M., born in 2016, A.M., born in 2019, Br.M., born in 2021, and B.M., born in 2023.¹ On May 20, 2024, Father filed a Petition for Dissolution of Marriage and a Petition for Appointment of Guardian ad Litem. On May 21, 2024, the court entered an order appointing Stephanie Kress as the guardian ad litem. On July 4, 2024, Guardian ad Litem Kress (“GAL Kress”) filed a Preliminary Report. On July 17, 2024, GAL Kress filed a motion to withdraw, which the court granted.

[3] On July 16, 2024, the parties filed an eighteen-page Marital Settlement Agreement which provided that Father and Mother share joint legal custody of the children, Mother have primary physical custody of B.M. and A.M., Father have primary physical custody of Ar.M., J.M., and Ay.M., and the parties share physical custody of Br.M. Under the heading “Contact with Others,” the Marital Settlement Agreement provided “[t]hat Maternal Grandmother ․ shall not be permitted around the Minor Children.” Appellant's Appendix Volume II at 36. On July 17, 2024, the trial court issued a Decree of Dissolution of Marriage which incorporated the Marital Settlement Agreement.

[4] On May 21, 2025, Father filed a Verified Petition to Modify Custody and Parenting Time alleging that the children physically residing with Mother were in an unsafe living environment and asking for the court to award him sole legal custody of the children. On July 23, 2025, Father filed a Verified Emergency Petition for Rule to Show Cause Why Mother Should Not be Held in Contempt of Court and for Attorney Fees. Father alleged that, “[o]n July 17, 2025,[² ] [the trial court] entered an order granting the parties specific parenting time with the minor children,” and Mother had “willfully and intentionally violated [the] order by denying [him] his court-ordered parenting time on” July 4, 2025, and the week of July 14, 2025. Id. at 62. That same day, Father also filed a Petition for the Appointment of Guardian ad Litem, and the court granted the petition and again appointed GAL Kress.

[5] On September 27, 2025, GAL Kress filed a report.³ On September 27, 2025, Father filed a Verified Petition to Modify Terms of Marital Settlement Agreement which requested that the court “allow [Maternal Grandmother] and [Father's new wife] to now be allowed to be around the minor children of the parties.” Id. at 72.

[6] On October 15, 2025, the State charged Mother's husband, Donald Green,⁴ under Cause No. 49D17-2510-F6-31403 (“Cause No. 31403”) with: Count I, domestic battery as a level 6 felony; Count II, domestic battery resulting in moderate bodily injury as a level 6 felony; Count III, intimidation as a level 6 felony; and Count IV, battery as a class B misdemeanor. The charging information related to Green's alleged acts against Mother and alleged that the domestic battery occurred in the presence of a child less than sixteen years old. On October 17, 2025, Father filed an Emergency Motion to Expedite Hearing alleging that Mother and her current spouse were involved in a domestic disturbance on October 13, 2025, and B.M. was present during the altercation, which resulted in Green's arrest.

[7] On December 10, 2025, and January 27, 2026, the court held hearings. Father presented the testimony of GAL Kress and his own testimony. The court admitted the charging information and probable cause affidavit under Cause No. 31403. Father's counsel asked the court to take judicial notice of “the entire file in Marion County” of Cause No. 31403, and the court indicated it would do so. Transcript Volume II at 7. Mother testified, and Father testified in rebuttal. During the hearing, counsel for Father and counsel for Mother each referenced GAL Kress's report. The court took the matter under advisement.

[8] On February 5, 2026, the court entered an order granting Father legal and primary physical custody of the minor children. The court found that “it is in the best interests of the children to modify the Decree of Dissolution and adopt the recommendations of the Guardian Ad Litem.” Appellant's Appendix Volume II at 16. It also found Mother in contempt of court “for failing to act in the best interests of the children by exposing them to domestic violence and failing to exclude Donald Green from her home.” Id. at 17. On February 12, 2026, Father filed a Motion for Clarification of Order which asked that the court clarify that Maternal Grandmother and his wife be allowed to be around the minor children to assist him in caring for them while he works. On February 17, 2026, the court entered a clarification of its order by stating that Maternal Grandmother and Father's wife “are now both permitted to be around the minor children herein and shall assist Father in caring for the minor children when Father is working.” Id. at 108.

Discussion

[9] Before addressing Mother's arguments, we note that Father did not file an appellee's brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Bixler v. Delano, 185 N.E.3d 875, 877 (Ind. Ct. App. 2022). Prima facie is defined as “at first sight, on first appearance, or on the face of it.” Id. (citation omitted). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Id. at 878.

[10] Mother argues that the trial court erred by basing its modification of custody on the GAL report that was never entered into evidence. She contends the court committed reversible error by failing to find a substantial modification in one or more of the statutory factors under Ind. Code § 31-17-2-8 in modifying custody.⁵ She asserts the court abused its discretion by modifying the terms of the Marital Settlement Agreement to allow Maternal Grandmother to be around the minor children. Lastly, Mother argues the trial court abused its discretion by finding her in contempt because there was no prior court order for her to exclude Green from her home while the children were present.

[11] With respect to the trial court's reliance on the report filed by GAL Kress, “Indiana Code Section 31-17-2-12(a)(5) permits a trial court to order an investigation and report in custody proceedings, and a GAL may prepare the report.” Shao v. Li, 276 N.E.3d 89, 97 (Ind. Ct. App. 2026). “In preparing a report concerning a child, the [GAL] may consult any person who may have information about the child and the child's potential custodian arrangements.” Id. (quoting Ind. Code § 31-17-2-12(b)). “The court shall mail the [GAL's] report to counsel and to any party not represented by counsel at least ten (10) days before the hearing.” Id. (quoting Ind. Code § 31-17-2-12(c)). “The report ‘(1) may be received in evidence at the hearing; and (2) may not be excluded on the grounds that the report is hearsay or otherwise incompetent.’ ” Id. (quoting Ind. Code § 31-17-2-12(b)).

[12] The record reveals that GAL Kress filed her report on September 27, 2025, or seventy-four days before the December 10, 2025 hearing. During the hearing, GAL Kress referenced her report multiple times, and counsel for Father and counsel for Mother each referenced her report.⁶ There is no reversible error. See Shao v. Li, 276 N.E.3d 89, 97-98 (Ind. Ct. App. 2026) (observing that father never alerted the trial court of any potential issues regarding the admissibility of the GAL report, both parties referenced the contents of the GAL report throughout the modification hearing, and father did not object during the GAL's testimony on the grounds the report was inadmissible or not properly before the trial court; holding that father had waived his claim on appeal; holding, waiver notwithstanding, that father was not unduly prejudiced by the court's consideration of the GAL report where the GAL filed her report ten days before the modification hearing, the GAL testified during the modification hearing about the content of the report, both parties referenced information found in the report; and concluding that, although the GAL report was not admitted into evidence, the trial court did not abuse its discretion by relying on the GAL report in making its modification order).⁷

[13] To the extent Mother challenges the modification of custody, Ind. Code § 31-17-2-21 provides a court may not modify a child custody order unless modification is in the child's best interests and there is a substantial change in one or more of the factors under Ind. Code § 31-17-2-8. We review custody modifications for an abuse of discretion “with a preference for granting latitude and deference to our trial judges in family law matters.” Hecht v. Hecht, 142 N.E.3d 1022, 1028 (Ind. Ct. App. 2020) (citation omitted). This is because it is the trial court that observes the parties’ conduct and demeanor and hears their testimony firsthand. Id. at 1029. We will not reweigh the evidence or judge the credibility of the witnesses. Id. “[I]t 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. (citing Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). It is not impossible to reverse a trial court's decision regarding child custody on appeal, but given our deferential standard of review, it is relatively rare. Id. To the extent Mother does not challenge the trial court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.

[14] While not cited by Mother, Ind. Code § 31-17-2-8.2, which became effective July 1, 2025, provides:

(a) As used in this section, “custody order” means:

(1) a final order:

(A) awarding custody;

(B) modifying custody; or

(C) denying modification of custody;

under this chapter; or

(2) an appellate decision affirming or reversing an order described in subdivision (1).

The term does not include a preliminary order or provisional order awarding custody.

(b) The following shall be included in a custody order:

(1) A trial court shall include the court's findings of fact and conclusions of law on which the custody order is based.

(2) An appellate decision shall include the facts upon which the appellate court relied to affirm or reverse an order.

[15] The trial court's February 5, 2026 order consisted of three pages and included findings of fact and conclusions of law. In its findings of fact, the court referenced GAL Kress's recommendations, found that Mother continued to reside with Green who acted in a manner inconsistent with the children's best interests, Mother had not excluded Green from the home, she exposed two-year-old B.M. to domestic violence, Father was gainfully employed and able to care for the children, A.M. had been living with Father since October and was thriving under his care, and it was in the best interests of the children to modify the Decree of Dissolution. In its conclusions of law, the court concluded that it was in the best interests of the minor children that Father be granted primary physical custody; GAL Kress's recommendations were reasonable, supported by the evidence, and in the best interests of the children; Mother's continued residence with Green and her exposure of B.M. to domestic violence were contrary to the children's best interest; and Father had demonstrated the ability to provide a stable and supportive environment for the children. We cannot say the trial court's order was deficient for a lack of findings.

[16] The record reveals that GAL Kress testified that A.M. had been living with Father since the domestic violence incident, she recommended that A.M. continue residing with Father, and she stated that Father intends to enroll A.M. in in-person school when Father “has the legal authority to enroll him in school.” Transcript Volume II at 16-17. Father testified that the children were “doing fine,” A.M. had been enrolled in five different online schools while he was in Mother's care, and “without paperwork, [he] can't enroll [A.M.] in an in-person school, which is where he needs to be.” Id. at 36, 91. The court took judicial notice of Cause No. 31403. GAL Kress testified that she had concerns regarding domestic battery prior to the incident resulting in charges against Green and noted that the probable cause affidavit stated that a neighbor indicated that “this was very frequent,” which reaffirmed her concerns. Id. at 8. She indicated that Green's ability to “come and go as he pleases to Mother's home” created concerns for B.M.’s safety. Id. She recommended that Father have legal and primary physical custody of the minor children including B.M. and testified that “things go very well in Father's home” and the children are “thriving in Father's care.” Id. at 10. She indicated that her communications with Mother were “largely unproductive” and Mother was “screaming” during one phone call. Id. at 11, 13. Her recommendation was that Green should not be present while Mother is exercising parenting time, and GAL Kress acknowledged that she had not visited Mother's house, but, based on what the children told her, she stated that “[i]t just seems really volatile at her house.” Id. at 15. She testified that the children “have a great relationship” with Father's wife. Id. at 31. She indicated that the older children had significant concerns regarding Mother “[f]or domestic violence, for a lot of screaming and yelling in the home, a lot of responsibility placed on the children for the younger children,” “unhinged arguments that culminated in ․ explosive” “verbal fights” between Mother and Green, and “a lot of blaming of the children.” Id. at 31-32. She stated that the children indicated that Green was “not always nice.” Id. at 32.

[17] On cross-examination, Mother stated that police came to her residence on October 13th, her son was present, and Green was “very intoxicated” and yelling “You are going to die, b----,” and “You are about to die.” Id. at 80. She indicated that she was holding her son and that she had blood coming from her nose and mouth, bite marks on her left collarbone and right shoulder, a possible bite mark or abrasion to her side, and a knot on her forehead. She testified that Green became upset when B.M. began to cry. At the January 27, 2026 hearing, she acknowledged that she was still living with Green. She also indicated that Green watches her children when she works. In light of the record, we cannot say reversal is warranted.

[18] As for the trial court's order permitting Maternal Grandmother “to be around the minor children” and to “assist Father in caring for the minor children when Father is working,” Appellant's Appendix Volume II at 108, Mother points to her own testimony ⁸ and argues that Father agreed to the provision in the Marital Settlement Agreement and “[t]his is analogous to the invited error doctrine.” Appellant's Brief at 17. We cannot say that the trial court's adoption of the Marital Settlement Agreement precludes modification of its terms related to the children. See Moell v. Moell, 84 N.E.3d 741, 744 (Ind. Ct. App. 2017) (holding that “[t]o treat a settlement agreement regarding the care of children the same as a settlement agreement involving property is contrary to the court's paramount concern of ruling in the best interests of the children” and holding that the trial court had authority to consider father's motion for modification of parenting time).

[19] We note that the trial court did not explicitly award Maternal Grandmother visitation and merely allowed that she be “permitted to be around the minor children herein and shall assist Father in caring for the minor children when Father is working.”⁹ Appellant's Appendix Volume II at 108. At the hearing, Father testified that he was asking the court to modify the terms of the settlement agreement with respect to Maternal Grandmother to “come into consistency with what's actually happening at this point.” Transcript Volume II at 39. He testified that he did not “have any problems” with Maternal Grandmother. Id. at 40. When asked if she had any concerns about the children being around Maternal Grandmother or Father's wife, GAL Kress answered, “Not at this time.” Id. at 16. In her report filed September 27, 2025, GAL Kress wrote that one of the parties’ adult children indicated that Maternal Grandmother “is not a concern,” he “only has good memories with her,” and described her as “a sweet lady.” September 27, 2025 Report at 3. She wrote that J.M. indicated that “there are no concerns for [Maternal Grandmother] and he desires to have an ongoing relationship with her.” Id. at 4. She wrote that Maternal Grandmother reported she had significant concerns for Mother's mental health and believed placement of the children in Father's primary care would serve the children's best interests. GAL Kress indicated that Ar.M. desired to have a relationship with Maternal Grandmother and all of her memories with her were positive. In her report, GAL Kress recommended that the children be permitted to be around Maternal Grandmother. In light of the record, reversal is not warranted.

[20] With respect to the trial court finding Mother in contempt, we review the judgment under an abuse of discretion standard. Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016). We will reverse a trial court's finding of contempt only if there is no evidence or inference therefrom to support the finding. Id. “Contempt of court generally involves disobedience of a court or court order that ‘undermines the court's authority, justice, and dignity.’ ” Id. (quoting In re A.S., 9 N.E.3d 129, 131 (Ind. 2014) (citing State v. Heltzel, 552 N.E.2d 31, 34 (Ind. 1990))). There are two kinds of contempt: direct contempt and indirect contempt. Id. Indirect contempt, which is at issue in this case, involves those acts “committed outside the presence of the court ‘which nevertheless tend to interrupt, obstruct, embarrass or prevent the due administration of justice.’ ” Id. (citing In re A.S., 9 N.E.3d at 132 (quoting 6 Ind. Law. Encyc. Contempt § 2 (1958))).

[21] In order to be punished for contempt of a court's order, there must be an order commanding the accused to do or refrain from doing something. Burrell v. Lewis, 743 N.E.2d 1207, 1213 (Ind. Ct. App. 2001). “To hold a party in contempt for a violation of a court order, the trial court must find that the party acted with ‘willful disobedience.’ ” Id. (citation omitted). A party may not be held in contempt for failing to comply with an ambiguous or indefinite order. Id. Otherwise, a party could be held in contempt for obeying in good faith an ambiguous order. Id. Rather, in order for a party to be found in contempt for failing to comply with a visitation order, the order must specifically set forth the time, place, and circumstances of the visitation. Id.

[22] The trial court found Mother in contempt “for failing to act in the best interests of the children by exposing them to domestic violence and failing to exclude Donald Green from her home.” Appellant's Appendix Volume II at 17. Our review of the record supports Mother's assertion that the trial court's orders did not require that she exclude Green from her home while the children were present. We cannot say that Mother willfully disobeyed the court's order. Under these circumstances, we conclude that Mother has demonstrated prima facie error as to the court's contempt finding.

[23] For the foregoing reasons, we reverse the trial court's finding of contempt and affirm the order in all other respects.

[24] Affirmed in part and reversed in part.

FOOTNOTES

1.   The parties also had two children who were adults at the time that the Marital Settlement Agreement was filed in July 2024.

2.   The record does not contain an order dated July 17, 2025. It appears that this is a scrivener's error and that Father intended to refer to the July 17, 2024 Decree of Dissolution of Marriage.

3.   While the record does not contain a copy of the September 27, 2025 report, it is available on Indiana's Odyssey Case Management System.

4.   At the December 10, 2025 hearing, Mother indicated that she had married Green but did not provide a date.

5.   Mother does not cite or make an argument with respect to Ind. Code § 31-17-2-15, which addresses legal custody.

6.   During cross-examination of GAL Kress, Mother's counsel stated, “And I noticed in your report – and I apologize, I don't remember – okay. Starting on page 2․” Transcript Volume II at 27.

7.   To the extent Mother argues that “[t]he implication is that litigants can include the GAL Report in an Appendix, which would require the party creating the Appendix to violate the certification required by Appellate Rule 50.A(2)(i),” Appellant's Brief at 13, we disagree. Ind. Appellate Rule 50(A)(2) provides that “[t]he appellant's Appendix shall contain a table of contents and copies of the following documents, if they exist: ․ (f) pleadings and other documents from the Clerk's Record in chronological order that are necessary for resolution of the issues raised on appeal; ․ (i) a verification of accuracy by the attorney or unrepresented party filing the Appendix.” Ind. Appellate Rule 2(E) provides: “The Clerk's Record is the Record maintained by the clerk of the trial court or the Administrative Agency and shall consist of the Chronological Case Summary (CCS) and all papers, pleadings, documents, orders, judgments, and other materials filed in the trial court or Administrative Agency or listed in the CCS.” (Emphasis added).

8.   Mother testified that she did not currently have a relationship with Maternal Grandmother, Maternal Grandmother had never had a relationship with her children, and she has “[p]hysical safety concerns” about Maternal Grandmother seeing the children. Transcript Volume II at 64.

9.   With respect to the trial court's order regarding Maternal Grandmother, Mother does not cite to or raise any argument under the Grandparent Visitation Act or the Parenting Time Guidelines.

Brown, Judge.

Bailey, J., and Weissmann, J., concur