S Marquez v. L Marquez ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 SANDRA MARQUEZ,
3 Petitioner-Appellant,
4 v. NO. 28,524
5 LUCIANO MARQUEZ,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 Charles C. Currier, District Judge
9 New Mexico Legal Aid
10 Brett A. Schneider
11 Roswell, NM
12 for Appellant
13 Luciano Marquez, Pro Se
14 Address Unknown
15 MEMORANDUM OPINION
16 FRY, Chief Judge.
17 Petitioner appeals from the district court’s order denying her claim for child
18 support on the grounds that she improperly served Respondent by publication, which,
19 the court ruled, precluded it from exercising in personam jurisdiction to order child
20 support. We issued a notice of proposed summary disposition, proposing to affirm.
21 Petitioner filed a response to our notice. We reconsidered our first proposed analysis
1 and issued a second notice of proposed summary disposition, proposing to reverse, on
2 the grounds that the rule providing for service by publication has been amended to
3 permit the service by publication under the circumstances presented. Pursuant to Rule
4 12-307(c) NMRA, we left the second notice in our court clerk’s office for nearly a
5 year. We have not received a response from Respondent. Petitioner has filed a
6 response to our notice, requesting that we assign this case to the general calendar. We
7 reverse the district court.
8 Rule 1-004(J) NMRA provides that service by publication may take place upon
9 the prior approval of the district court, where the plaintiff shows that service cannot
10 reasonably be made by other means provided for in the rule and where service by
11 publication “is reasonably calculated under all of the circumstances to apprise the
12 defendant of the existence and pendency of the action and afford a reasonable
13 opportunity to appear and defend.” The district court in the current case approved
14 service by publication. [RP 13] The court found that Petitioner “made diligent efforts
15 to make personal service, but has not been able to complete service of process . . . ,”
16 and that Petitioner’s method of publication “is most likely to give [Respondent] notice
17 of the pendency of the action.” [Id.] We believe that compliance with the rule of
18 service is all that is required for the district court to assume jurisdiction over the
2
1 claims raised against Respondent. See Clark v. LeBlanc, 92 N.M. 672, 674, 593 P.2d
2 1075, 1077 (1979).
3 Indeed, the district court exercised jurisdiction over Respondent to grant
4 Petitioner a divorce based on the same method of service as her claim to child support.
5 [RP 34-36] Petitioner’s notice of the pendency of action that was approved by the
6 district court and enforced for the dissolution of marriage also contained her claim that
7 Respondent should pay child support in accordance with the Child Support
8 Guidelines. [RP 16] There is no reasoned basis to believe that giving Respondent
9 notice by publication is sufficient for purpose of dissolving the marriage, but
10 insufficient for other claims in the same complaint. In addition, it is unclear what else
11 Petitioner must do than use due diligence in locating Respondent to serve him with
12 notice of the action.
13 Because the district court found, and it appears to us, that Petitioner complied
14 with the rule for service by publication, we hold that the district court has jurisdiction
15 over all the claims contained in Petitioner’s complaint. As we explained in our notice,
16 in the event Respondent wishes to oppose the decision of the district court, he may
17 move pursuant to Rule 1-060 NMRA to seek relief from the judgment.
3
1 CONCLUSION
2 For the reasons set forth above, we reverse the district court’s order ruling that
3 it lacked jurisdiction over Respondent to decide Petitioner’s claim for child support.
4 IT IS SO ORDERED.
5
6 CYNTHIA A. FRY, Chief Judge
7 WE CONCUR:
8
9 MICHAEL D. BUSTAMANTE, Judge
10
11 LINDA M. VANZI, Judge
4