In Re the Marriage of: Rosalia Mayagoita Fragoso and Fidel Medina Avila (mem. dec.) ( 2019 )

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.
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[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.
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[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.
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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
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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.
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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
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decree. I would reverse the trial court’s ruling and remand with instructions
that it vacate the dissolution decree.
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