In Re the Marriage of: Rosalia Mayagoita Fragoso and Fidel Medina Avila (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 17, 2019
• Docket: 19A-DR-1195
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 17 2019, 10:28 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Mark A. Bates Schererville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Marriage of: October 17, 2019

Rosalia Mayagoita Fragoso, Court of Appeals Case No. 19A-DR-1195 Appellant-Respondent, Appeal from the Lake Superior and Court The Honorable Calvin D. Fidel Medina Avila, Hawkins, Judge Trial Court Cause No. Appellee-Petitioner 281-1614

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1195 | October 17, 2019 Page 1 of 7 [1] Rosalia Mayagoita Fragoso appeals the trial court’s order denying her motion

to set aside the decree of dissolution of her marriage to Fidel Avila. Fragoso

argues that the dissolution court lacked personal jurisdiction over her because of

insufficient service of process and notice. Finding no error, we affirm.

Facts [2] Fragoso and Avila were married in June 1980 and separated in March 1981.

On November 18, 1981, Avila filed a petition to dissolve the marriage.

Attached to the petition was an affidavit regarding Avila’s attempts to provide

notice of the petition to Fragoso:

. . . I have not seen her nor have I been able to communicate with her since August of 1981 and I have been [sic] countless efforts to determine her whereabouts but said efforts have been futile, said efforts have led him [sic] to obtain information from reliable sources that have given me enough knowledge to form a sincere belief that she is no longer residing in the State of Indiana and that she has not been residing in Indiana for several months.

The purpose of this affidavit is to establish that I do not know the whereabouts of my wife and that I have signed a petition to dissolve our marriage and therefore, I request that the Court order the Clerk of this Court to give her notice by Publication.

Appellant’s App. Vol. II p. 8. A notice to non-resident was then published in

November 1981 in the Lowell Tribune, a public weekly newspaper. On April 8,

1982, the trial court granted Avila’s petition and dissolved the marriage.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1195 | October 17, 2019 Page 2 of 7 [3] Meanwhile, Fragoso claims that she left Indiana and relocated to Mexico in

July 1981—she also avers that Avila purchased the bus tickets to Mexico for her

and her daughters. She believed that he “sent [her] to Mexico to see if things

[in the marriage] could be resolved.” Tr. Vol. II p. 9. According to Fragoso,

Avila knew where she was and she had contact with him multiple times over

the years, but he never told her that they were divorced, and she continued to

believe that they were married.

[4] On June 8, 2018, Avila died. After Fragoso learned of his death, she contacted

the Social Security Administration and learned about the divorce for the first

time. On February 7, 2019, she filed a motion to set aside the default

dissolution decree based on lack of sufficient notice and service and lack of

personal jurisdiction. Following a hearing, the trial court denied Fragoso’s

motion on March 20, 2019, finding, in pertinent part, as follows:

6. That at no point in [Fragoso’s] testimony did she state that she informed [Avila] of her exact whereabouts other than to say that [Avila] knew where she was in Mexico.

7. That there was no other testimony to corroborate that of [Fragoso].

8. That [Fragoso’s] credibility was suspect in that she was unsure of certain dates and seemingly only became involved in the herein cause when she learned that [Avila] died sometime in 2018; in fact, the herein proceeding marked [Fragoso’s] first time back to Lake County, Indiana since she left in 1981.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1195 | October 17, 2019 Page 3 of 7 9. That the dissolution decree was granted more than thirty- six years ago and without more than [Fragoso’s] mere testimony, albeit lacking in substance, the Court denies [Fragoso’s] Motion to Set Aside Judgment.

Appealed Order p. 2. Fragoso subsequently filed a motion to correct error,

which the trial court denied. She now appeals.

Discussion and Decision [5] Fragoso argues that the dissolution decree should be dismissed because the trial

court lacked personal jurisdiction over her due to inadequate service of process.

See Yoder v. Colonial Nat’l Mortg., 920 N.E.2d 798, 801 (Ind. Ct. App. 2010)

(holding that the trial court has no personal jurisdiction over a party if service of

process was inadequate and that any default judgment rendered without

personal jurisdiction is void). While the existence of personal jurisdiction over

a defendant is a question of law to which we apply a de novo standard of

review, to the extent the trial court makes finding of facts based on in-court

testimony, we review those findings for clear error. Munster v. Groce, 829

N.E.2d 52, 57 (Ind. Ct. App. 2005). The party arguing that there is a lack of

personal jurisdiction bears the burden of proving that claim by a preponderance

of the evidence. Id.

[6] Indiana Trial Rule 4.13(A) provides that if a party seeks to serve notice by

publication, that party must submit the request “along with supporting

affidavits that diligent search has been made that the defendant cannot be

found, has concealed his whereabouts, or has left the state . . . .” Fragoso

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1195 | October 17, 2019 Page 4 of 7 argues that the affidavit submitted by Avila is insufficiently detailed to meet this

standard.

[7] We acknowledge that the affidavit does not contain a wealth of detail, but find

that what it does contain is enough. Specifically, Avila attested that he had

“not seen” or “been able to communicate” with Fragoso for months, that he

had made “countless efforts to determine her whereabouts but said efforts have

been futile,” and that as a result of those efforts, he had “obtain[ed] information

from reliable sources” that “she is no longer residing in the State of Indiana and

that she has not been residing in Indiana for several months.” Appellant’s App.

Vol. II p. 8. Obviously, as Avila is no longer living, he cannot provide more

details than are contained in the affidavit, but we find that the content of the

affidavit meets the requirements of Trial Rule 4.13(A). Therefore, service was

sufficient and the trial court did not lack personal jurisdiction over Fragoso.

[8] To the extent that Fragoso directs our attention to her own testimony at the

hearing on her motion to set aside the dissolution decree, she is arguing that her

own testimony should be credited over Avila’s affidavit. But the trial court

specifically found that Fragoso was not a credible witness, and we decline to

second-guess this assessment. Therefore, the trial court did not err by denying

her motion to set aside the dissolution decree.

[9] The judgment of the trial court is affirmed.

Crone, J., concurs. Kirsch, J., dissents with a separate opinion.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1195 | October 17, 2019 Page 5 of 7 IN THE COURT OF APPEALS OF INDIANA

In Re the Marriage of: Court of Appeals Case No. 19A-DR-1195 Rosalia Mayagoita Fragoso, Appellant-Respondent,

and

Fidel Medina Avila, Appellee-Petitioner

Kirsch, Judge, dissenting.

[10] I respectfully dissent.

[11] The evidence in the record before us is uncontroverted and leads to the singular

conclusion that in November of 1981 Fidel Medina Avila committed a fraud on

the court in stating that he did not know the whereabouts of his wife, Rosalia

Mayagoita Fragoso. Because of this fraud, Fragoso did not receive notice that

her husband had commenced the dissolution proceedings, and the trial court

did not acquire personal jurisdiction necessary for it to issue its dissolution

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1195 | October 17, 2019 Page 6 of 7 decree. I would reverse the trial court’s ruling and remand with instructions

that it vacate the dissolution decree.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-1195 | October 17, 2019 Page 7 of 7