Shenika Jones, Appellant-Petitioner v. Brandon McDowell, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Shenika Jones (Mother) appeals the trial court's decision denying: (1) Brandon McDowell's (Father's) petition to modify custody as to their minor child, C.J. (Child) and (2) her motion to restrict Father's parenting time. She raises one issue, which we restate as whether the court erred in ruling that it would exclude from its consideration testimony about facts that occurred before a previous hearing. We find that Mother has failed to present a cogent argument on appeal and, in any event, did not preserve the issue for our review. Accordingly, we affirm.

Facts and Procedural History

[2] Father and Mother are the parents of Child, who was born in October 2014. Mother lived with Father in North Carolina until 2016, when she and Child moved to Indiana. Mother initiated custody proceedings in North Carolina, where the court issued a temporary custody order in 2017, followed by a permanent custody order dated August 22, 2019. The permanent custody order granted Mother “primary physical and legal custody of the minor child” and contained provisions regarding visitation with Father. Appellant's Appendix Vol. 2 at 33.

[3] Shortly after the August 22, 2019 order was issued, Mother filed a motion for rule to show cause after Father failed to return Child to her care.¹ That led to the entry of an “Order for Show Cause” on August 23, which provided that Child should “remain in the care, custody, and control of [Mother], pending further orders of [the] Court.” Id. at 39. Father was ordered to appear for contempt proceedings, but he failed to attend a scheduled hearing in October. Consequently, on October 9, 2019, the North Carolina court ordered that Mother would “retain sole legal and physical custody of the minor child until [Father] appeared in court” on the show cause order and “that the August 23, 2019, Order to Show Cause which granted sole custody to [Mother] shall remain in full force and effect and shall supersede the Custody Order entered on August 22, 2019.” Id. at 16.

[4] Father did not appear in the North Carolina proceedings again until June 2023, when he petitioned to modify custody. But in July 2024, before it had ruled on that petition, the North Carolina court issued an order concluding that it was “no longer a convenient or appropriate forum for determination of custody of” Child. Id. at 17. In that same order, the North Carolina court ruled that the “custody order entered ․ on or about October 9, 2019, granting [Mother] sole legal and physical custody of the minor child shall remain in full force and effect until/if modified by a Court having jurisdiction of the parties and the minor child.”² Id. It further directed Mother to “commence a custody action in the minor child's current home state of Indiana as soon as possible.” Id.

[5] In October 2024, Mother filed a petition in the Allen Circuit Court to register the North Carolina custody order, which the trial court granted after a hearing on February 28, 2025. A year later, in October 2025, Father filed a petition to modify custody in Allen County, and in November, Mother filed a motion to restrict Father's parenting time. The court held a hearing on those motions on December 17, at which Father appeared pro se and Mother appeared with counsel. In her testimony, Mother said that Father had not had regular contact with Child, and she wanted Father's parenting time to be supervised if he wished to become part of Child's life. To explain why she thought Father's parenting time needed to be supervised, Mother referenced a 2019 incident in which Father absconded with Child to Texas and refused to return him to Mother's care until he was forced to do so by law enforcement. Mother also explained that Child was excelling in her custody, as he is “a high ability student[,]” “has lots of friends,” and has a strong support network in the community and through their family. Transcript at 16-17.

[6] While cross-examining Mother, Father tried to ask her about the address she used to serve him with documents she filed with the court in North Carolina. Mother's counsel objected, stating, “This was brought up at our last hearing when we were registering or moving the matter here․ And it's not relevant to the proceedings today.” Id. at 21. The court sustained the objection and added, “[W]hen it comes to modifying custody, we can't go back past the last court date where custody was one of the issues that was talked about.” Id. It sua sponte ruled that Mother had also testified about events that occurred before the February 28 hearing, so it would exclude that portion of her testimony “to be fair[ to] both sides.” Id. at 22. Mother's attorney responded, “Okay.” Id.

[7] After hearing the parties’ testimonies, the presiding magistrate asked whether the parties would be willing to participate in mediation. The parties then agreed to mediate with Michael Setlak as mediator, and the magistrate explained she would refer the parties to mediation and would issue “a temporary order” pending the outcome of mediation. Id. at 41. But the trial court never issued an order referring the parties to mediation and did not appoint Setlak, or anyone else, as mediator. Instead, two days after the hearing, on December 19, 2025, the trial court issued a written order finding that: (1) Father had not shown a substantial change in circumstances warranting a custody modification and (2) it was in the best interest of “Child to be gradually reintroduced to Father.” Appellant's App. Vol. 2 at 13. It thus denied Mother's and Father's respective motions and temporarily modifie[d] parenting time as follows:

(a) Father shall have five (5) hours of parenting time in Fort Wayne, Indiana for two (2) days in December[ ] 2025 for a total of ten (10) hours of parenting time.

(b) Father shall exercise up to six (6) hours of parenting time in Fort Wayne, Indiana for one consecutive Saturday and Sunday in January[ ] 2026 for a total of twelve (12) hours of parenting time.

(c) Father shall exercise eight (8) hours of parenting time in Fort Wayne, Indiana for one consecutive Saturday and Sunday in February[ ] 2026 for a total of sixteen (16) hours of parenting time.

(d) Commencing March 1, 2026, Father shall have parenting time pursuant to the Indiana Parenting Time Guidelines where distance is a factor.

Id.

[8] Mother now appeals.³

Discussion and Decision

[9] We begin by addressing the dissent's conclusion that the appealed order is not a final judgment. Generally, our authority to exercise jurisdiction is “limited to appeals from final judgments.” In re Adoption of S.L., 210 N.E.3d 1280, 1283 (Ind. 2023) (quoting Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012)). The Appellate Rules define a “final judgment,” in part, “as one disposing of all claims as to all parties[.]” Brooks v. USA Track & Field, Inc., 272 N.E.3d 490, 494 (Ind. 2025) (citing Ind. Appellate Rule 2(H)), reh'g denied. We will find that an order is “final” when it “disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues.” Id. (quoting Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. Ct. App. 2002)).

[10] The December 19, 2025 order was, on its face, a final judgment. The only matters for the court to address at that time were Father's petition to modify custody and Mother's motion to restrict Father's parenting time. The December 19, 2025 order unambiguously denied both of those pleadings, without reserving any “further question or direction for future determination.” Id. (quoting Thompson v. Thompson, 286 N.E.2d 657, 659 (Ind. 1972)). Though the order said it was “temporarily modif[ying]” Father's parenting time, in context the modification was “temporary” only in the sense that Child was to be gradually reintroduced to Father through a step-up visitation schedule that, on March 1, 2026, culminated in Father having “parenting time pursuant to the Indiana Parenting Time Guidelines where distance is a factor.” Appellant's App. Vol. 2 at 13. March 1, 2026, has now passed, and the temporary step-up schedule has concluded.

[11] To be sure, the record is silent about why the trial court said from the bench that it would refer the parties to mediation but then, without explanation, issued a written order making no mention of mediation. But the dissent misses the mark by suggesting that the court's oral statements aren't in conflict with its written order. By entirely omitting mediation from its written order and failing to otherwise indicate that the December 19, 2025 order was provisional, the trial court contradicted its oral pronouncement that it planned to issue “a temporary order” and “refer the parties to mediation.” Tr. at 41.

[12] The question, then, is how to resolve that contradiction. We find our answer in the fact that on February 19, 2026, the trial court entered a Nunc Pro Tunc Order correcting numerous errors and omissions in the December 19, 2025 order. It brought those errors to our attention on June 5, 2026, by filing a Motion for Leave to Supplement the Record, which we granted on July 10, 2026. Conspicuously, both the Nunc Pro Tunc Order and motion to supplement the record were silent about mediation—suggesting the court's decision to not order the parties to mediate was deliberate, not an inadvertent omission in need of correction. If the court did not intend for the appealed order to be final, we expect that it would have addressed the temporary nature of its order in the Nunc Pro Tunc Order and the motion to supplement the record. Because the court did not do so, we can only conclude that it intended the December 19, 2025 order to be a final judgment.⁴

[13] Turning to the merits of Mother's argument, we first note that she proceeds in this appeal pro se. As recently expressed by this Court,

[W]e hold [pro se] litigants to the same standard as trained counsel and require them to follow procedural rules. Martin v. Hunt, 130 N.E.3d 135, 136 (Ind. Ct. App. 2019). Moreover, this Court has repeatedly recognized that it “will not become an advocate for a party, or address arguments that are ․ too poorly developed or expressed to be understood.” Spainhower v. Smart & Kessler, LLC, 176 N.E.3d 258, 263 (Ind. Ct. App. 2021) (quoting Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016), reh'g denied), reh'g denied, trans. denied. A party—even one proceeding pro se—may waive appellate review when they “fail[ ] to present cogent argument on appeal.” Basic, 58 N.E.3d at 984.

McCauley v. Newrez LLC, 274 N.E.3d 1040, 1042-43 (Ind. Ct. App. 2026) (third alteration in original).

[14] Mother's sole contention on appeal is that the trial court erred in excluding testimony about events that occurred before February 28, 2025. But she has failed to present a cogent argument, largely because her brief neither specifically identifies what portion of her testimony was erroneously excluded, nor how consideration of any such testimony might have altered the trial court's judgment. Without knowing what testimony Mother believes was erroneously excluded or how the excluded testimony might have altered the court's decision, we cannot determine whether an abuse of discretion occurred. See State Farm Mut. Auto. Ins. Co. v. Woodgett, 59 N.E.3d 1090, 1093 (Ind. Ct. App. 2016) (“We review a trial court's decision to admit or exclude evidence for an abuse of discretion.”). Indeed, in violation of the Appellate Rules, Mother's brief does not set forth the abuse of discretion standard at all—let alone apply it to these circumstances. See App. R. 46(A)(8)(b) (“The argument must include for each issue a concise statement of the applicable standard of review; this statement may appear in the discussion of each issue or under a separate heading placed before the discussion of the issues.”).

[15] Even if we were not inclined to find waiver based on Mother's failure to present a cogent argument, we note that Mother did not preserve this issue for our review. Mother's counsel failed to object to the trial court's sua sponte exclusion of a portion of her testimony at the hearing, and Mother cannot raise the issue for the first time on appeal. See In re Guardianship of Hickman, 805 N.E.2d 808, 822 (Ind. Ct. App. 2004) (“The failure to make a contemporaneous objection to the admission of evidence at trial, so as to provide the trial court an opportunity to make a final ruling on the matter in the context in which the evidence is introduced, results in waiver of the error on appeal.”), trans. denied. Indeed, we are not inclined to find that the trial court erred by making a decision Mother's counsel not only failed to object to but said he was “[o]kay” with. Tr. at 22; see Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) (explaining waiver is premised on the notion that “a trial court cannot be found to have erred as to an issue or argument that it never had an opportunity to consider”).

Conclusion

[16] For these reasons, we affirm the trial court's judgment.

[17] Affirmed.

[1] In all parenting time controversies, courts must give foremost consideration to the best interests of the child. Hazelett v. Hazelett, 119 N.E.3d 153, 161 (Ind. Ct. App. 2019). But it is not clear that Child's best interests have been protected in this case as events have traveled through three states and two court systems over many years. As Father noted in his closing remarks at the December 2025 hearing, “So far, [Child] has not been the forefront of any of this.” Tr. Vol. 2 at 34. That oversight can be rectified, however; because the order Mother purports to appeal is not a final judgment, I would dismiss this appeal and remand to the trial court for the parties to fully adjudicate and the trial court to fully consider those interests. I therefore respectfully dissent.

[2] A fuller rendition of the procedural history of this case is necessary to explain my position. As the majority notes, this case originated in North Carolina. Mother obtained a temporary custody order there in 2017 that provided for a repeating schedule of Mother having custody of Child for four consecutive weeks followed by Father having “secondary physical custody (visitation)” for two consecutive weeks. Appellant's App. Vol. 2 at 28. The court stated the case would be heard at a later date “in the event mediation is waived, is unsuccessful, or a consent order is not entered.” Id.

[3] After two years of this temporary arrangement, a custody hearing was held in the North Carolina court on August 1, 2019. Father did not appear; it seems this hearing was during his two-week visitation with Child. The North Carolina court made a new custody order in open court, granting Mother primary physical and legal custody of Child to begin “on August 4, 2019, when [Father] returns the minor child to [Mother],” with Father to exercise secondary physical custody on a schedule set out by the order.⁵ Id. at 33.

[4] But Father did not return Child to Mother's custody on August 4, so Mother sought an order to show cause. The North Carolina court held a hearing at which Mother “presented sufficient evidence which would support findings that [Child] has been abducted and removed ․ from [North Carolina] for the purpose of evading jurisdiction. It may not be in the best interest for the child to be in the custody of [Father].” Id. at 38. On August 23, the court issued a warrant directing law enforcement to take immediate custody of Child, granted Mother sole custody of Child upon his return pending a hearing, and ordered Father to appear in court to show cause why he should not be held in contempt.⁶

[5] With assistance from law enforcement and an attorney in Texas, Child was returned to Mother's custody at the end of August. Father appeared in the North Carolina court as ordered in September. The court appointed an attorney for Father and continued the contempt hearing to October. But Father failed to appear at the October hearing, and the court ruled the August 23 show cause order which temporarily granted sole custody to Mother would supersede the August 1 custody order and remain in effect until Father appeared in court to answer for contempt.

[6] Father did not appear in court until early 2024, when he appeared for a hearing on Mother's motion to dismiss the North Carolina case and change venue to Indiana. In this time, Father and Child saw each other twice: once in December 2022 and once in December 2023. Both visits were facilitated by Mother. In July 2024, after a hearing in which both Mother and Father participated, the North Carolina court found it was no longer a convenient forum for determining custody of Child and stayed the proceedings in that state. The court ordered Mother to commence a custody action in Indiana as soon as possible and continued the October 2019 “pending custody order” in full force and effect until modified by a court with proper jurisdiction. Appellant's App. Vol. 2 at 17.

[7] On February 28, 2025, the Allen Circuit Court held a hearing “on the sole issue of” registering the July 2024 North Carolina custody order and issued an order confirming registration shortly thereafter. Id. at 19.

[8] In October 2025, Father filed a motion to modify custody. Mother filed a petition to restrict Father's parenting time. The trial court held a hearing in December on the pending motions. In explaining why she was asking for supervised parenting time, Mother referred to Father refusing to return Child to her custody in August 2019. When sustaining an objection during Father's later testimony, the trial court expressed it would not consider any information regarding matters that happened before the last court date, and “to be fair” it would not consider Mother's prior testimony. Id. at 22. Father noted, “we haven't ever been heard on” the August 2019 incident and had “been operating off a temporary order” since then; “[w]e've never had any final order.” Tr. Vol. 2 at 24–25. Nonetheless, the trial court instructed: “[W]e are moving forward from this point, from the February hearing that you had registering that North Carolina order here. We're moving forward from that time period.” Id. at 29.

[9] When the parties had concluded their presentation of evidence, the trial court asked the parties their thoughts on mediation. Neither party was opposed to it. The trial court explained what would happen next:

[I]n regards to mediation, ․ what would happen is I would still issue an order ․ by the end of this week. It would be a temporary order. So it would be an order that's temporary in nature until mediation has occurred. Hopefully ․ all the issues would be resolved. If not, then essentially it's scheduled for a final final hearing.

Id. at 37–38 (emphasis added). Mother's attorney suggested three mediators and Father selected one. The court then stated,

Then I will refer the parties to mediation. I will appoint Michael Setlak as the mediator[.] ․ And I will not schedule another court date at this time so that the current order that's in place is in order until the temporary order comes out. Once the temporary order comes out, that is in place until either you have an agreement that the Court signs off on through mediation, or we have a final hearing.

Id. at 39–40. Before adjourning the hearing, the court summarized: “[M]y order will be issued by ․ Friday․ So, that will be a temporary order. I will refer the parties to mediation. I won't schedule another court date. If mediation is unsuccessful, either party can request a court date at that time.” Id. at 41 (emphasis added).

[10] Two days later, the trial court issued its order denying Father's motion to modify custody and “temporarily modif[ying] parenting time” with a phased-in schedule. Appellant's App. Vol. 2 at 13 (emphasis added).

[11] In essence, from the show cause order dated August 23, 2019, until now, Mother has had sole custody of Child through a series of temporary orders, none of which has adjudicated the merits of what occurred to prompt that order. The show cause order—issued after a hearing at which Father did not appear—granted Mother sole custody pending a hearing on Father's contempt. Father also did not appear for the contempt hearing, so the court continued Mother's temporary sole custody until Father appeared in court. Father didn't appear in court until January 2024 when Mother's motion to dismiss and change venue was heard. The July 2024 order granting Mother's motion simply continued the October 2019 temporary custody order. The Indiana court registered that July 2024 North Carolina order after a February 2025 hearing that was confined to the registration issue. And finally, the trial court here refused to consider evidence of events prior to February 2025 and expressed on the record five times that it was going to issue a temporary order pending mediation or a “final final hearing.” Tr. Vol. 2 at 38. The order itself noted it was temporarily modifying Father's parenting time.

[12] Under these circumstances, I reach two conclusions. One, the order from which Mother purports to appeal is interlocutory. “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.” Bacon v. Bacon, 877 N.E.2d 801, 804 (Ind. Ct. App. 2007), trans. denied. By ordering mediation from the bench, the trial court expressed its intent to allow the parties to “actually have a say” in the custody and parenting time decision. Tr. Vol. 2 at 38. The parties accepted that opportunity and selected a mediator. The written order made a temporary parenting time schedule to bridge the gap until the parties either reached an agreement through mediation or asked the trial court to conduct an evidentiary hearing because mediation had failed. Although the written order did not include a provision for mediation, the oral and written orders do not conflict. Cf. Nunn Law Ofc. v. Rosenthal, 905 N.E.2d 513, 518 n.5 (Ind. Ct. App. 2009) (concluding oral findings and conclusions in a civil case are not invalid and noting this conclusion aligns with the Supreme Court's view that a trial court's findings and conclusions in criminal sentencing may be discerned by examining both the oral and written sentencing statements) (citing McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007)). When considered together, the trial court's orders left something to be done, and therefore the order did not dispose of all claims as to all parties.⁷ See Ind. Appellate Rule 2(H) (defining a final judgment); see also Ramsay v. Moore, 959 N.E.2d 246, 251 (Ind. 2012) (“The authority of the Indiana Supreme Court and Court of Appeals to exercise appellate jurisdiction is generally limited to appeals from final judgments.”).

[13] And two, events following the August 1, 2019, North Carolina custody hearing and order have never been fully adjudicated by a court. Although many proceedings were held and several temporary orders were issued since then, August 1 was the last hearing on the merits of Child's custody and parenting time. By the time the trial court in Indiana held a hearing in December 2025, over six years of events—including an alleged abduction—had occurred. Those events should not be overlooked in making decisions about Child's future contacts and relationships with his parents.

[14] In Shao v. Li, 276 N.E.3d 89 (Ind. Ct. App. 2026), we acknowledged Indiana Code Section 31-17-2-21(c) provides a court considering a modification of child custody “shall not hear evidence on a matter occurring before the last custody proceeding between the parties[.]” Id. at 98. But we held that because the parents stipulated to custody as part of their dissolution agreement and custody was not litigated before the trial court, the court was not prohibited during a later modification hearing from considering “all the available evidence”—including evidence predating the dissolution. Id. Importantly, we noted “[s]uch consideration is particularly appropriate when the evidence relates to a pattern of continuing behavior that poses a threat to a child's ongoing emotional or physical wellbeing.” Id.

[15] Similarly here, the last custody hearing on the merits occurred in North Carolina on August 1, 2019. Information regarding Child's circumstances since then was expressly excluded by the court from its consideration. Yet that information is important to a proper resolution. Indiana has long recognized the best interest of the child is paramount in any custody situation. See Perkinson v. Perkinson, 989 N.E.2d 758, 764 (Ind. 2013); see also Schleuter v. Canatsy, 47 N.E. 825, 827 (Ind. 1897) (“In a controversy for the custody of a child, ․ the welfare of the child is paramount to the claims of either parent, and the order of the court should in all such cases be made with regard alone to the best interests of the child.”). I would dismiss this appeal because there is no final judgment and remand to the trial court for further proceedings conducted with these principles in mind.

FOOTNOTES

1.   The August 22, 2019 order apparently went into effect before that date, as Father was supposed to return Child to Mother's care on August 4. See Appellant's App. Vol. 2 at 38 (“The formal order was entered on August 22, 2019, and pursuant to said Order, the minor child was to be returned to Plaintiff on August 4, 2019[.]”). When he failed to do so, Mother filed her show cause motion.

2.   Thus, the North Carolina court effectively dismissed Father's petition to modify custody and the unresolved contempt proceedings.

3.   Father did not participate in this appeal.

4.   We further disagree with the dissent's contention that the North Carolina proceedings were not final. To the extent the October 9, 2019 order was contingent on Father appearing to show cause why he should not be held in contempt, the North Carolina court removed that contingency on July 25, 2024, when it ordered that Mother's “sole legal and physical custody of the minor child shall remain in full force and effect until/if modified by a Court having jurisdiction ․” Appellant's App. Vol. 2 at 17 (emphasis added). And it was that very custody arrangement that was registered in Indiana on March 11, 2025. Id. at 20.

5.   A written order memorializing this arrangement was not signed until August 22.

6.   To be clear, despite the date on which the August custody order was signed, the incident prompting the show cause order occurred after the last full hearing on custody was held and a permanent custody order was entered from the bench.

7.   As the majority notes, the trial court entered a Nunc Pro Tunc Order to correct numerous errors in the December 19 order. See slip op. at ¶ 12. Importantly, in doing so the trial court did not change its characterization of the order as temporary.

DeBoer, Judge.

Mathias, J., concurs. Kenworthy, J., dissents with a separate opinion.