March 9, 2010

New Case Law – What is a “Written Response”? (or, how to avoid a default)

With almost 80% of cases in domestic relations involving pro se (self represented) litigants, it is not uncommon for a party to fail to respond to a pleading and find themself defaulted.  The court of appeals in Nolan and Nolan, which was decided on March 3, 2010, ruled on what constitutes a proper “written response.”  The entire opinion can be found here:

In the case, Mother appealed from the trial court ruling awarding Father sole legal custody of the parties’ children.  The court of appeals found that the trial court improperly granted Father’s motion for default against Mother and remanded the matter to the trial court for a full hearing on the merits.

At the trial court level, Father served Mother with a Motion and Order to Appear and Show Cause why custody should not be modified.  Under the Douglas County local rules, Mother was required to file a “written response.”  Mother filed a motion to have the court decline jurisdiction, but did not file a counter-affidavit contesting Father’s allegations.  The trial court issued a default order against Mother.

The court of appeals held that the trial court’s ruling was incorrect.  The order of default should have been set aside since Mother did file a “written response.”

It is very important, both as a petitioner and a respondent to seek at least a consultation with an attorney if you are representing yourself.  On the petitioner side, you need to make sure that you understand the rules with respect to obtaining a default order.  On the respondent side, you need to make sure that you understand the county’s local rules.