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. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  2. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  3. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  4. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  5. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

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