ILNews

Court affirms dismissal of default judgment

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals affirmed a trial court finding that a mother had a valid excuse for not showing up to a child-support modification hearing because neither she nor her attorney received proper notice of the hearing.

In Jason D. Bunch v. Katherine R. Himm, 64A04-0705-CV-262, Bunch and Himm divorced, leaving Bunch with physical custody of their two children. Himm moved from northern Indiana to South Carolina and joined the United States Marine Corps Reserves. Their divorce decree was finalized shortly after she joined, and the court ruled she would pay $220 a week to Bunch in support while on active duty because her income would be larger and $138 while on reserve duty.

While Himm was away on active duty, and within one year of the decree, Bunch filed an unverified petition to modify the divorce decree to increase child support because Himm's income had increased. The petition was mailed to Himm at a South Carolina address she was having her mail sent to and a copy was also mailed to her attorney. The person getting Himm's mail told her she received a notice about a court date and to contact her attorney. Himm called her attorney and told him that she would not be able to appear and that he would have to go for her. The attorney replied that he did not receive a notice and there was no court date.

When the hearing date arrived, neither Himm nor her attorney showed. As a result, Bunch received a default judgment increasing the amount of child support Himm would pay. Himm did not learn of the default judgment until Bunch told her. At that point, she filed a petitioner's Trial Rule 60 motion to set aside default orders and a motion to withdraw and stay.

The trial court granted her petition because it found Himm's not showing up to the hearing as "excusable neglect" under T.R. 60. Bunch appealed the trial court's ruling.

Judge Patricia Riley wrote the default judgment against Himm should have been set aside because Bunch filed an unverified petition for modification. Also, the Indiana Supreme Court has stated that absent a substantial and continuing change in circumstances that would make a prior order unreasonable, a difference in income alone cannot support a modification of child support in the first year after a divorce decree.

The appellate court affirmed the trial court finding and remanded for further proceedings.
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  1. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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