DIMIC v. CONNELL (2026)

MEMORANDUM DECISION

[1] This parenting time dispute between Diana Dimic (Mother) and Joseph O'Connell (Father) involves three successive trial court orders. In the first, the trial court permitted Mother to exercise her parenting time with T.R.O. (Child) in Nevada. In the second, the court denied Mother's request for additional parenting time with Child. And in the third, the court ended Mother's ability to exercise her parenting time with Child in Nevada.

[2] The trial court's orders and Mother's subsequent appeals have overlapped. The court issued the third order while Mother was appealing the second. And Mother initiated the present appeal while her first appeal was pending. Mother now argues that the trial court lacked subject matter jurisdiction to issue the third order. Because her first appeal was pending when the third order was issued, and because that order concerned the same subject matter as her first appeal, the trial court's third order was void for lack of subject matter jurisdiction. We therefore set aside that order and dismiss this appeal.

Facts

[3] Child was born to Mother and Father in 2012. In a paternity action initiated shortly thereafter, the trial court granted Mother and Father joint legal custody of Child, with Mother receiving primary physical custody of Child and Father receiving parenting time according to the Indiana Parenting Time Guidelines. But in 2017, the court modified its custody order to grant Father sole legal and primary physical custody of Child. Mother, who had relocated to Illinois, was granted parenting time in accordance with the Guidelines applicable when distance is a major factor (i.e., during portions of Child's school vacations).

[4] During the next five years, numerous parenting time issues arose, in part, because Mother regularly traveled with Child to Nevada, where Child's grandparents lived. In 2022, the trial court modified its custody order to require that Mother exercise her parenting time in the “Tri-State/Chicagoland area.” App. Vol. II, p. 34. However, on March 8, 2024, the court modified its custody order again to permit Mother to exercise parenting time in Nevada under certain circumstances. Specifically, the court ordered:

As Mother is an established resident of Illinois, and currently resides there, Mother's parenting time is to be exercised in the Illinois, Michigan, Wisconsin and Indiana area ONLY. As Child plays Travel Soft Ball, a spring sport, parenting time in Nevada (for purposes of seeing grandparents only, and not half-brother) may be exercised only when such travel to Nevada will not impact or impede scheduled games and practices, such as Fall Break or Christmas Break. The Court is not at this point authorizing travel to any other state with the minor Child.

Id. at 47.

[5] In January 2025, Mother petitioned for joint physical custody of Child and, alternatively, parenting time according to the Guidelines applicable when distance is not a major factor (i.e., alternating weekends). The trial court denied Mother's petition without a hearing, and Mother appealed the decision in Case No. 25A-JP-705. The Notice of Completion of Clerk's Record was noted in the Chronological Case Summary (CCS) for that appeal on April 2, 2025.

[6] While Case No. 25A-JP-705 was pending, Father filed an emergency petition to enforce the trial court's March 8, 2024, custody order, alleging that Mother was exercising parenting time in Nevada and refusing to return Child to Indiana in time for her upcoming softball practices. Although the trial court ordered expedited briefing on Father's petition, Child had missed several softball practices by the time the court ruled on the petition two weeks later. Mother had also arranged for Child's imminent return to Indiana. The court therefore found Father's petition moot. But in an order dated August 7, 2025, the court unilaterally modified its custody order to prohibit Mother from exercising her parenting time in Nevada moving forward. Mother appeals pro se.¹

Discussion and Decision

[7] Mother argues that the trial court's August 7, 2025, order is void for lack of subject matter jurisdiction because it was issued after April 2, 2025, when the Notice of Completion of Clerk's Record was noted in the CCS for Case No. 25A-JP-705. We agree.

[8] Pursuant to Indiana Appellate Rule 8, “when a party initiates an appeal from a trial court order, this court ‘acquires jurisdiction on the date the Notice of Completion of Clerk's Record is noted in the [CCS].’ ” Crider v. Crider, 15 N.E.3d 1042, 1064 (Ind. Ct. App. 2014) (quoting Indiana Appellate Rule 8). “Orders issued by a trial court after this date generally are void” for lack of subject matter jurisdiction. Id. “The policy underlying the rule is to facilitate the efficient presentation and disposition of the appeal and to prevent the simultaneous review of a judgment by both a trial and appellate court.” Id. (quoting Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct. App. 2008)).

[9] There are, of course, “exceptions to this general rule which permit the trial court to retain jurisdiction notwithstanding an appeal.” Jernigan, 894 N.E.2d at 1046.² But none are applicable to the trial court's August 7, 2025, order. The subject matter of Mother's appeal in Case No. 25A-JP-705 was the trial court's custody order, generally, and Mother's parenting time, specifically. The court's August 7, 2025, order concerned the same subject matter. Because that order was issued after the Notice of Completion of Clerk's Record was noted in the CCS for Case No. 25A-JP-705 and before the trial court regained jurisdiction following the first appeal, it is void for lack of subject matter jurisdiction. See Crider, 15 N.E.3d at 1065.

[10] As Mother's current appeal is from a void order, we set aside that order and dismiss the current appeal. See Jernigan, 894 N.E.2d at 1047.

FOOTNOTES

1.   While this appeal was pending, another panel of this Court issued its decision in Case No. 25A-JP-705, reversing the trial court's denial of Mother's petition for joint physical custody of Child and remanding for a hearing thereon. In re T.R.O., Case No. 25A-JP-705 (Ind. Ct. App. Oct. 27, 2025). That opinion was certified as final on December 23, 2025.

2.   “For example, a trial court may retain jurisdiction to reassess costs, correct the record, enforce a judgment, continue with a trial during an interlocutory appeal concerning venue, or preside over matters which are independent of and do not interfere with the subject matter of the appeal.” Jernigan, 894 N.E.2d at 1046 (quoting Clark v. State, 727 N.E.2d 18, 21 (Ind. Ct. App. 2000)).We note that, in this case, Father did not file an appellee's brief and, thus, did not argue that the trial court retained jurisdiction to issue the August 7, 2025, order under any exception to the general rule. In such cases, we do not undertake the burden of developing arguments on the appellee's behalf. See Maw v. Pringle, 263 N.E.3d 790, 793 (Ind. Ct. App. 2025). Instead, we may reverse if the appellant has shown prima facie error, meaning error at first sight, on first appearance, or on the face of it. Id.

Weissmann, Judge.

Tavitas, C.J., and Foley, J., concur.