dissenting.
I agree with' the Majority that Judge Danikolas did not have jurisdiction to issue the dissolution decree. However, I disagree with the Majority’s belief that the facts concerning Judge Kanz’s failure to hear this ease should have been certified to the Indiana Supreme Court for the appointment of a special judge pursuant to Ind. Rules of Procedure, Trial Rule 79(4). Instead, this cause should be remanded to Judge Danikolas with instructions that he follow the clear language of TR. 79(10). Under that rule, he is required to submit to Jennie and Richard a written list of three persons from which the special judge is to be selected.
TR. 79(10) requires that Richard be given notice of the special judge list. TR. 79(10) provides in pertinent part that “the presiding judge, ..., shall submit to the party or parties a written list in accordance with subdivision (4) of this rule.” It is undisputed that Judge Danikolas did not give Richard notice of this list as required by TR. 79(10).
*14Because Judge Danikolas did not give Richard notice of the special judge list as required by TR. 79(10), the trial court clerk could not strike a name from the list for Richard. The last sentence of TR. 79(10) states: “If the non-moving party fails to strike within the time allowed, the clerk shall strike for him.” The Majority strictly applies this sanction against Richard and deduces that since Richard, as non-moving party, failed to strike, TR. 79(10) allows the trial court clerk to strike for him. This is an incorrect application of TR. 79(10).
In State ex rel. Sargent & Lundy v. Vigo Superior Ct. (1973), 260 Ind. 472, 296 N.E.2d 785, our Supreme Court refused to strictly apply the similar “strike” provision of TR. 76(9), which provides for change of venue from the county. TR. 76(9) states that “it shall be the duty of the court ... to submit to the parties a written list of [possible counties] ...” and “[i]f a moving party fails to so strike within said time, he shall not be entitled to a change of venue, and the court shall resume general jurisdiction of the cause.” Despite this language in TR. 76(9), our Supreme Court held that the trial court could not resume jurisdiction when the moving party failed to strike, because the trial court had not given the moving party notice of the list of counties.
The sound reasoning of our Supreme Court in State ex rel. Sargent & Lundy is applicable to the present case. To allow the trial court clerk to strike for Richard when Richard had no notice of the special judge list would render meaningless the requirement in TR. 79(10) that Judge Danikolas give Richard notice of the list. The trial court clerk is allowed to strike for the non-moving party to expedite completion of the change of judge process. The non-moving party loses the choice of which name to strike if that choice is not timely exercised. Implicit in this sanction is the non-moving party’s knowledge of the list from which to strike. Based on these reasons and the holding of State ex rel. Sargent & Lundy, the trial court clerk could not strike for Richard, even though Richard failed to timely strike, because Richard did not have notice of the special judge list.
Since the trial court clerk could not strike for Richard, Judge Danikolas had no authority under TR. 79(4) to appoint Judge Kanz as special judge. The purported appointment and qualification of Judge Kanz as special judge was of no effect. Therefore, this cause should be remanded for the selection of a special judge.
On remand, Judge Danikolas should submit to Jennie and Richard a written list of three persons from which the special judge would be selected. This is in accordance with the procedure set forth in TR. 79. Jennie has the right to expect that the trial rules as approved by the Indiana Supreme Court will be followed. “If the failure to obey the clear, explicit dictates of the Indiana Rules of Procedure can be simply dismissed as harmless error, then, the erosion of an orderly judicial system has begun.” Otte v. Tessman (1981), Ind., 426 N.E.2d 660, 662.
Therefore, I would remand this cause to the trial court with the instruction that the procedure set forth in TR. 79 for the selection of a special judge be followed.