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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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