TIME IS NOT ON YOUR SIDE: VOID OR VOID-ISH JUDGMENTS
Wednesday, December 6th, 2017
Waller on Judgment Collection
A void judgment binds no one, except sometimes. The Court of Appeals recently addressed the effect a void judgment has on a party who knows the judgment exists, but doesn’t act quickly to challenge it.
A Virginia woman lost custody of her children when she went to jail in 2012. Relatives took custody of the children. Later, the relatives [I’ll refer to them as the ‘adoptive parents’] and the children moved to Tennessee. The biological mother made almost no effort to see the children or support them. A year after moving to Tennessee, the adoptive parents asked a Tennessee court to terminate biological mother’s parental rights and allow adoption.
The adoptive parents had trouble serving the biological mother with their lawsuit. Being unable to locate her for personal service, the parents published notice of their lawsuit in a newspaper sold where biological mother lived. As expected, she did not answer the lawsuit. The court eventually terminated biological mother’s parental rights and allowed the adoptive parents to adopt the children.
The adoption was finalized in 2013. Biological mother became aware of the adoption in April of 2014. Despite knowing her rights had been terminated, biological mother did nothing until October 2015, when she filed a motion to set aside the termination/adoption.
Biological mother claimed that the judgment was void because she was not properly served. Generally speaking, a person must be served with a summons and a copy of the lawsuit before a court can adjudicate their rights. The trial court agreed that the judgment was void for lack of proper service of process. The adoptive parents had not filed the right paperwork before they published their notice in the newspaper. The court does not say it, but even if they followed the proper procedure for notice by publication, a default judgment based on publication instead of personal service is often questionable.
Even though the court ruled that the judgment was void, the adoptive parents were able to snatch victory from the jaws of defeat. The court also ruled that biological mother waited too long to challenge the judgment. She knew about the judgment for almost eighteen months before she moved to set it aside. By waiting this long, she acquiesced to the judgment.
The key takeaway here is timing. If you know of a judgment against you and you were not served with a summons, you must move quickly to challenge the judgment. Time is not on your side.