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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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