Blair-Arch v. Arch

Summary

The South Dakota Supreme Court considered whether a domestic abuse protection order could be entered by default when the respondent did not personally attend the hearing but appeared through authorized counsel. The court held that the circuit court abused its discretion by entering a default because counsel appeared to defend the case; it reversed and remanded for a hearing on the petition.

Holdings

1. A domestic abuse protection order may not be entered by default solely because the respondent did not personally attend the hearing when the respondent's attorney appeared on the respondent's behalf and was authorized to present a defense. The court should proceed with the hearing with counsel participating, or, if the respondent's personal presence is essential, require the petitioner to subpoena the respondent.
2. Even if Arch were required to personally appear, the circuit court could not enter a default judgment without the notice required for an application for default judgment. The court should have proceeded ex parte on the petition or required a formal application for default judgment with at least three days' written notice.

Questions Presented

1. Whether a circuit court may enter a domestic abuse protection order by default when the respondent's attorney appears at the hearing on the respondent's behalf and is authorized to present a defense.
2. Whether the hearing notices and Sixth Circuit Rule 95-1 permitted entry of a default judgment without a formal application and the written notice required by SDCL 15-6-55(b)(1).

Disposition

reversed_and_remanded