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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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