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COA: Summons should notify of risk of default judgment

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Due process requires that a respondent in a dissolution proceeding be notified of the risk of default for not appearing or otherwise responding, the Indiana Court of Appeals held Thursday. The judges reversed a couple’s decree of dissolution, ruling it was void because the summons served on the wife was insufficient.

In Stephanie L. Cotton v. Charles C. Cotton, No.43A03-1005-DR-325, Stephanie Cotton appealed the denial of her motion to set aside the decree of dissolution dissolving her marriage to Charles. She argued the decree was void for insufficiency of process.

The summons she received was typewritten and prepared by Charles’ counsel. It told her that she or her attorney may appear and that she may respond, but nothing in it required her to do anything in response to the petition having been filed, other than appear before the court if directed to do so. There’s no evidence Stephanie was directed by the court to do anything.

Stephanie didn’t appear or respond because she believed they were trying to reconcile. Charles continued with the petition and the dissolution court defaulted Stephanie and entered the final dissolution decree, which involved custody of their son. After learning of the decree, she obtained counsel and tried to set aside the decree, arguing the summons didn’t comply with Indiana Trial Rule 4(C)(5).

The language of T.R. 4(C)(5) doesn’t squarely address the circumstances in this case, where no response was necessary as no responsive pleading is required in the dissolution of marriage. But due process requires notice and an opportunity to be heard, wrote Judge Edward Najam, and Stephanie was entitled to notice that a default judgment could be entered if she didn’t appear or respond.

“… the summons stated only that the final hearing may be held after sixty days from the date the petition was filed. Without a statement of the consequences, namely, that judgment could be entered without further notice should Wife fail to appear or otherwise respond, the summons did not satisfy due process or comply with the intent of Trial Rule 4(C)(5),” he wrote. “Accordingly, the dissolution court did not obtain personal jurisdiction over Wife, and the dissolution decree is void as a matter of law.”

The judges also held the summons was insufficient under Trial Rule 4.15(F). They reversed the entry of the dissolution decree and remanded for further proceedings.

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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