ILNews

Court affirms dismissal of default judgment

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The Indiana Court of Appeals affirmed a trial court finding that a mother had a valid excuse for not showing up to a child-support modification hearing because neither she nor her attorney received proper notice of the hearing.

In Jason D. Bunch v. Katherine R. Himm, 64A04-0705-CV-262, Bunch and Himm divorced, leaving Bunch with physical custody of their two children. Himm moved from northern Indiana to South Carolina and joined the United States Marine Corps Reserves. Their divorce decree was finalized shortly after she joined, and the court ruled she would pay $220 a week to Bunch in support while on active duty because her income would be larger and $138 while on reserve duty.

While Himm was away on active duty, and within one year of the decree, Bunch filed an unverified petition to modify the divorce decree to increase child support because Himm's income had increased. The petition was mailed to Himm at a South Carolina address she was having her mail sent to and a copy was also mailed to her attorney. The person getting Himm's mail told her she received a notice about a court date and to contact her attorney. Himm called her attorney and told him that she would not be able to appear and that he would have to go for her. The attorney replied that he did not receive a notice and there was no court date.

When the hearing date arrived, neither Himm nor her attorney showed. As a result, Bunch received a default judgment increasing the amount of child support Himm would pay. Himm did not learn of the default judgment until Bunch told her. At that point, she filed a petitioner's Trial Rule 60 motion to set aside default orders and a motion to withdraw and stay.

The trial court granted her petition because it found Himm's not showing up to the hearing as "excusable neglect" under T.R. 60. Bunch appealed the trial court's ruling.

Judge Patricia Riley wrote the default judgment against Himm should have been set aside because Bunch filed an unverified petition for modification. Also, the Indiana Supreme Court has stated that absent a substantial and continuing change in circumstances that would make a prior order unreasonable, a difference in income alone cannot support a modification of child support in the first year after a divorce decree.

The appellate court affirmed the trial court finding and remanded for further proceedings.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

ADVERTISEMENT