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. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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