ILNews

Court affirms dismissal of default judgment

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

ADVERTISEMENT