www.loubar.org 6 Louisville Bar Briefs FAMILY LAW: PROFESSIONAL EXCELLENCE The Family Attorney’s Guide to the Care and Feeding of Your Warning Order Attorney Thomas Mulhall If your grasp of Warning Order practice is somewhat tenuous, you may take solace in the fact that you are in good company. There is precious little case law to guide us, and if you practice throughout the Commonwealth, the requirements may vary greatly from county to county. While the basics are set out in Civil Rules 4.05, 4.06, 4.07 and 4.08, the establish- ment of mailing requirements, fees and even the appointments themselves are not uniform across the state. So, what exactly is a Warning Order Attorney (WOA) and how can they best be used? The first thing to remember is that a WOA is not on any government payroll. They are private attorneys appointed from an approved list kept by the local Circuit Court Clerk. Second, they are not your employee, despite the fact that your client pays them. Their role is not to represent your client or, except in rare cases, to represent the respondent. Their role is to attempt to notify a respondent whose where- abouts are unknown or is avoiding service of process. The WOA must make diligent efforts to locate and inform the respondent (Continued on next page) of the pendency and nature of the action. Finally, under KRS 453.060 and CR 4.07, their fee is actually a cost of the case, rather than strictly a fee. The worst-case scenario is to have your mo- tions denied or even set aside due to improper service. To assist you in obtaining proper notice through the use of a WOA, here are some basic dos and don’ts. DO make sure the request for a WOA is appropriate. Per CR 4.05 and KRS 454.165, Warning Order notice is constructive service only, which means that no personal judgment can be obtained on a defendant who is served through a WOA. If you are seeking a mon- etary judgment, constructive service through a WOA will not be sufficient since it only confers quasi in rem jurisdiction. See Dalton v. First National Bank of Grayson, 712 S. W. 2d 954 (Ky. App. 1986). This is usually not a problem for the family attorney, since the mar- riage is the res or subject matter of the case, and the court has jurisdiction over the mar- riage so long as residency requirements are met. A decree and most orders, even orders addressing custody, may be obtained through the use of constructive service. Also, be aware that under CR 4.09, a WOA may only serve “an initiating document” such as a complaint or petition. This means using a WOA to serve motions is probably not appropriate. DO a diligent search for information. Making a “very feeble effort” to obtain information about the defendant is insufficient, and you need to “employ something more than casual efforts” to locate an absent respondent. See W.G.H. v. Cabinet for Human Resources, 708 S. W. 2d 109, (Ky. App. 1986). Simply stating that you are unaware of the respon- dent’s whereabouts is not sufficient. A diligent search is required. DO use the respondent’s full name. The WOA is also required to make diligent efforts to locate and notify the respondent, and having a full legal name makes this more possible. Searching for Jim Nelson is difficult. Search- ing for James Alexander Nelson is less so. DO use a last known address. Nothing is more frustrating to a WOA than to receive an affi- davit without an address and a statement that the address is “unknown.” Under CR 4.06, it appears mandatory that a last known address be given. The saving grace is that you are not required to provide their current address, which may truly be unknown. You are only required to provide their last known address. Family attorneys have an advantage over foreclosure attorneys in this respect. At some point, the parties in your case almost certainly lived together. If the respondent lived with the petitioner and then left for parts unknown without sharing their new address, then the last known address is the premises last shared by the two parties. More likely, they remained in communication after they separated to discuss children, bills, etc. Obviously, if the parties separated and the petitioner knows their new address, that new address should be used. DON’T fail to give a street address. CR 4.06 specifically uses the term “address.” The foun- dation of Warning Order service is that notice derbycitylitho.com • duplicatorsales.net 1-800-633-8921 • 831 E. Broadway, Louisville, KY 40204 PRINT, CONNECT, SUCCEED Tailoring your Office Technology Solutions since 1959. 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