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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.