Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: DAVID W. STONE IV Stone Law Office and Legal Research Anderson, Indiana

ATTORNEY FOR APPELLEE: JAMES S. BUTTS Law Office of James S. Butts, P.C. Warsaw, Indiana

FILED
Feb 24 2011, 9:40 am

IN THE COURT OF APPEALS OF INDIANA
STEPHANIE LAYNE COTTON, Appellant-Respondent, vs. CHARLES CORNELIUS COTTON, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

of the supreme court, court of appeals and tax court

CLERK

No. 43A03-1005-DR-325

APPEAL FROM THE KOSCIUSKO CIRCUIT COURT The Honorable Rex L. Reed, Judge The Honorable Scott J. Lennox, Judge Pro Tempore Cause No. 43C01-0903-DR-133

February 24, 2011

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Stephanie Cotton ("Wife") appeals the dissolution court's denial of her motion to set aside the decree of dissolution that the court had entered dissolving Wife's marriage to Charles Cotton ("Husband"). Wife presents a single dispositive issue for our review, namely, whether the dissolution decree is void for insufficiency of process. We conclude that the summons served on Wife was insufficient as a matter of law for the court to exercise personal jurisdiction over Wife and, therefore, that the decree is void. We reverse and remand for further proceedings. FACTS AND PROCEDURAL HISTORY The parties were married in June 2002, and there was one child born of the marriage. On March 11, 2009, Husband filed a petition for dissolution of marriage, but he continued to live with Wife in the marital home until August 20, 2009. Wife was served with a summons and a copy of the petition for dissolution, but she did not appear personally or by counsel and did not respond to the petition. Wife believed that she and Husband were trying to reconcile and that Husband was not pursuing a final dissolution decree despite his petition. However, Husband and his counsel attended a final hearing on Husband's petition on September 18, 2009.1 Based solely upon Husband's testimony at that hearing, the dissolution court defaulted Wife and entered the final dissolution decree, which awarded the parties joint legal and physical custody of their son and divided the marital estate. When Wife learned that the dissolution decree had been entered, she obtained counsel
Because Wife had not filed an appearance with the dissolution court, she was not notified of the final hearing. See Trial Rule 5(A). Regardless, the CCS does not show that the final hearing had been scheduled. Instead, it appears that the hearing was held impromptu.
1

2

and filed a verified motion to set aside the decree of dissolution pursuant to Indiana Trial Rule 60(B)(1), (3), (4), or (8). Wife alleged in relevant part that the summons she received did not comply with Indiana Trial Rule 4(C)(5). Following a hearing, the dissolution court, by a judge pro tempore, denied the motion to set aside. This appeal ensued. DISCUSSION AND DECISION Wife challenges the dissolution decree on the ground that it was entered without personal jurisdiction over her and is, therefore, void. Specifically, while Wife contends that the form of the summons served with the petition for dissolution did not comply with Trial Rule 4(C)(5), she does not challenge service of the summons. The difference between insufficiency of process and insufficiency of service of process is not often addressed. Thus, we pause to note the distinction. 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). Trial Rule 4 (process), Trial Rules 4.1 through 4.17 (service of process), and Trial Rule 5 (service and filing of pleading and other papers) are each meant to satisfy the notice element of due process. Thus, case law discussing service of process is useful in considering Wife's contention that process, or the content of the summons, was insufficient. In Grabowski v. Waters, 901 N.E.2d 560, 563 (Ind. Ct. App. 2009), trans. denied, we set out our standard of review and applicable law as follows: Personal jurisdiction is a question of law. LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind. 2006) (citing Anthem Ins. Co. v. Tenet
3

Healthcare Corp., 730 N.E.2d 1227, 1237 (Ind. 2000), superseded by rule on other grounds). As with other questions of law, a determination of the existence of personal jurisdiction is entitled to de novo review by appellate courts. Id. This court does not defer to the trial court's legal conclusion as to whether personal jurisdiction exists. Id. However, personal jurisdiction turns on facts, and findings of fact by the trial court are reviewed for clear error. Id. Clear error exists where the record does not offer facts or inferences to support the trial court's findings or conclusions of law. Rogers v. Rogers, 876 N.E.2d 1121, 1126 (Ind. Ct. App. 2007), trans. denied. Ineffective service of process prohibits a trial court from having personal jurisdiction over a defendant. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 659 (Ind. Ct. App. 2001). A judgment rendered without personal jurisdiction over a defendant violates due process and is void. See Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). A void judgment is a complete nullity and may be attacked at any time. See id. at 1154, 1156. The question as to whether process was sufficient to permit a trial court to exercise jurisdiction over a party involves two issues: whether there was compliance with the Indiana Trial Rules regarding service, and whether such attempts at service comported with the Due Process Clause of the Fourteenth Amendment. See In re Adoption of D.C., 887 N.E.2d 950, 955-56 (Ind. Ct. App. 2008) (citing Munster v. Groce, 829 N.E.2d 52, 58 (Ind. Ct. App. 2005)). (Emphasis added). Here, after Husband filed his petition for dissolution of marriage, Wife was served with a summons that stated 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
4

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. Appellant's App. at 40 (emphases added). The summons was not on a form provided by the Clerk, but was typewritten and prepared by counsel for Husband. 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." There is no evidence that Wife was subsequently directed to do anything by the dissolution court. Indeed, under Trial Rule 5(A), "[n]o service need be made on parties in default for failure to appear." Thus, after Wife failed to appear, the dissolution court was not required to give Wife written notice of the final hearing. 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. The trial rules apply to dissolution proceedings. See Ind. Code

Download Stephanie L. Cotton v. Charles C. Cotton.pdf

Indiana Law