February 25, 2011
When is a summons so defective that it fails to give the responding party notice? On February 24, 2011, the Indiana Court of Appeals provided an answer to that question in
Cotton v. Cotton, 942 N.E.2d 161 (Ind. Ct. App. 2011), Case No. 43A03-1005-DR-32. To put it simply, a summons does not comply with the Trial Rules or due process if it does not inform the person that default judgment could be entered against her if she fails to appear.
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In this case, a husband filed a petition for dissolution of marriage. The wife was served with a summons that was not on a form provided by the Clerk, but was typewritten and prepared by the husband's counsel. It provided as follows:
You have been sued by the Petitioner in the Kosciusko Circuit Court . . . . The nature of the lawsuit and the demand made against you are stated in the Petition for Dissolution of Marriage which is served on you with this Summons.
You may personally appear in this action or your attorney may appear for you. You must appear before the Court if directed to do so pursuant to a Notice, an Order of the Court, or a Subpoena. You may file a response to the Petition prior to submission of the Petition at final hearing which may be tried or heard after the expiration of sixty (60) days from the date of filing of the Petition for Dissolution of Marriage or from the date of the publication of the first Notice to a non-resident.
The wife did not appear, did not receive notice of the final dissolution hearing, and did not appear at that hearing. After the hearing, the trial court defaulted the wife and entered the final dissolution decree, which awarded the parties joint legal and physical custody of their son and divided the marital estate. After the wife learned that the dissolution decree had been entered, she moved to set aside the judgment, but the trial court denied that motion.
On appeal, the Court noted that the wife's claim was for the insufficiency of process, not the insufficiency of service of process.
A claim of insufficiency of process "challenges the content of a summons; [insufficiency of service of process] challenges the manner or method of service." Heise v. Olympus Optical Co., 111 F.R.D. 1, 5 (N.D. Ind. 1986).
The summons in this case was defective because it did not warn her of the possibility of default.
The summons informed Wife that she or her attorney may appear and that she may respond, but nothing in the summons required Wife to do anything in response to the petition having been filed, other than to appear before the court "if directed to do so." ... We hold that due process requires that, at a minimum, a respondent in a dissolution proceeding be notified of the risk of default for failure to appear or otherwise respond.
...
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). Accordingly, the dissolution court did not obtain personal jurisdiction over Wife, and the dissolution decree is void as a matter of law.
The husband's failure to include this information was not excusable under
Trial Rule 4.15(F) because the failure to inform the wife of the consequences of failing to appear was not a "minor, technical defect" in the summons.
We advise that all attorneys immediately check to ensure that the form of summons they use comply with this decision.
Lessons:
- A default judgment arising from an insufficient summons is void as a matter of law.
- A summons is insufficient if it does not notify the defendant of the risk of default for failure to appear or otherwise respond.
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