J.K., Appellant-Petitioner v. M.S., Appellee-Respondent. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] This case stems from an underlying case in which D.R.H. (“D.R.H.”), a minor child, by his next friend and mother, J.K. (“J.K.”), filed a petition for a protective order against M.S. (“M.S.”), a minor child.¹ In this appeal, D.R.H. attempts to challenge the trial court's order granting M.S.’s motion for change of judge. However, we sua sponte conclude that the trial court's order was neither a final judgment nor an appealable interlocutory order, and we dismiss D.R.H.’s appeal without prejudice to his right to file an appeal once a final judgment has been entered or the order has been certified for an interlocutory appeal.

[2] We dismiss.²

Issue

Whether we should dismiss D.R.H.’s appeal because the trial court's order granting the motion for change of judge was neither a final judgment nor an appealable interlocutory order.

Facts 3

[3] Because of our disposition of this appeal, we will not delve into detailed facts regarding the underlying case. On January 15, 2025, D.R.H. filed a petition for a protective order against M.S.⁴ The following day, the trial court issued an ex parte order for the protection of D.R.H. against M.S.

[4] Thereafter, M.S.’s mother, on M.S.’s behalf, filed a lengthy, handwritten motion with the trial court. In that motion, M.S. sought a “hearing” and “transfer[.]” (App. Vol. 2 at 16). The trial court “interpret[ed]” M.S.’s motion as a motion for a change of judge and granted the motion. (App. Vol. 2 at 26). In that same order, the trial court transferred the protective order case to a special judge.⁵ When the trial court transferred the case, it issued a second order in which it noted that it had considered the protective order petition under Indiana Code § 34-26-5-6 and that it was transferring the case under that statute and also based upon M.S.’s motion.

[5] D.R.H. then filed an objection to M.S.’s motion and requested the trial court to set aside its order transferring the protective order case to the special judge. The trial court then issued an order noting that the case had already been transferred.

[6] D.R.H. now attempts to appeal the trial court's order granting the motion for change of judge. D.R.H. indicates that he is appealing an interlocutory order as of right under Indiana Appellate Rule 14(A)(8), which is for “[t]ransferring or refusing to transfer a case under Trial Rule 75[.]” Ind. App. R. 14(A)(8).

Decision

[7] D.R.H. appeals the trial court's order granting M.S.’s motion for change of judge. We, however, decline to review his challenge at this juncture because the trial court's order that he attempts to appeal was neither a final judgment nor an appealable interlocutory order. “It is the duty of this Court to determine whether we have jurisdiction before proceeding to determine the rights of the parties on the merits.” Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans. denied.

[8] As set forth in Indiana Appellate Rule 2(H), a judgment is a “final judgment” if:

(1) it disposes of all claims as to all parties; [or]

(2) the trial court in writing expressly determines under Trial Rule 54(B) ․ that there is no just reason for delay and in writing expressly directs the entry of judgment ․ under Trial Rule 54(B) as to fewer than all the claims or parties[.]

Ind. Appellate Rule 2(H).

[9] If an order is not a final judgment, then an appellant may appeal the order only if it is an appealable interlocutory order. See In re Adoption of S.J., 967 N.E.2d 1063, 1066 (Ind. Ct. App. 2012). “An interlocutory order is one made before a final hearing on the merits and requires something to be done or observed but does not determine the entire controversy.” Id. (cleaned up). “Non-final orders that are appealable right away—on an interlocutory basis—include those recited in Appellate Rule 14.” In re D.J. v. Ind. Dep't of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017).

[10] Here, the trial court's order at issue was not a final judgment under Appellate Rule 2(H) nor was it an appealable interlocutory order. The trial court's order—which granted M.S.’s motion for a change of judge—was not a “final judgment” under Appellate Rule 2(H)(1) because it did not dispose of all claims as to all parties. The trial court's order was also not a “final judgment” under Appellate Rule 2(H)(2) because the trial court did not include the “magic language” required to meet the “bright line” rule under Indiana Trial Rule 54(B). See Adoption of S.J., 967 N.E.2d at 1065-66. See also Ramsey v. Moore, 959 N.E.2d 246, 253 (Ind. 2012) (determining that part of a trial court's order that did not contain the “magic language” of Trial Rule 54(B) was not a final appealable judgment under Appellate Rule 2(H)(2)).

[11] Additionally, contrary to D.R.H.’s assertion, the trial court's order is not an appealable interlocutory order as of right under Appellate Rule 14(A)(8) for transferring a case under Trial Rule 75 because the trial court's interlocutory order was a grant of a motion for a change of judge, which falls under Trial Rule 76. See Trojnar v. Trojnar, 698 N.E.2d 301, 302-03 (Ind. 1998) (explaining that a ruling on a motion for change of judge under Trial Rule 76 was not included in the list of interlocutory appeals as of right because it was not the equivalent of a ruling on a motion to change venue under Trial Rule 75).⁶ Nor does the order fall within one of the other categories of Rule 14(A). Moreover, the trial court's order is not a discretionary interlocutory appealable order under Appellate Rule 14(B) because D.R.H. neither requested the trial court to certify its order for interlocutory appeal nor sought permission from our Court to accept the interlocutory appeal. See Adoption of S.J., 967 N.E.2d at 1066; see also App. R. 14.

[12] Because the trial court's order is not a final appealable order or an appealable interlocutory order, we dismiss this appeal for lack of appellate jurisdiction. See Town of Ellettsville v. Despirito, 87 N.E.3d 9, 12 (Ind. 2017) (explaining that “in the overwhelming majority of cases, the proper course for an appellate court to take where it finds appellate jurisdiction lacking is simply to dismiss the appeal”). Accordingly, we dismiss this appeal without prejudice to D.R.H.’s right to file an appeal once a final judgment has been entered or the order has been certified for an interlocutory appeal. See Indy Auto Man, LLC v. Keown & Kratz, LLC, 84 N.E.3d 718, 722 (Ind. Ct. App. 2017) (dismissing the appellant's appeal without prejudice where the trial court's order being appealed was not a final judgment).

[13] Dismissed.

FOOTNOTES

1.   D.R.H. filed the protective order petition in the juvenile division of Lake County Superior Court.

2.   We note that M.S. did not file an appellee's brief.

4.   The record on appeal reveals that, at the time of the protective order petition, D.R.H. was eleven years old, and M.S. was fifteen years old.

5.   Specifically, the trial court transferred the case to the Honorable Thomas Hallett in Lake Superior Court. The protective order case is currently pending under cause number 45D03-2502-PO-288.

6.   The trial court also referenced Indiana Code § 34-26-5-6 when granting M.S.’s motion for change of judge. However, this reference to this protective order statute does not affect our determination that the trial court's challenged order, in which the trial court granted M.S.’s motion and transferred the protective order to a special judge, is not an interlocutory appeal as of right under Appellate Rule 14(A)(8).

Pyle, Judge.

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