Husband with 2 wives avoids annulment at COA

A Goshen wife who discovered during divorce proceedings that her husband had actually been married to another woman during their marriage had her decree of annulment overturned after the Court of Appeals of Indiana found the man was not properly notified through a service by summons.

Elizabeth Cruz filed for divorce in April 2019. She served the petition for dissolution by publication, alleging her husband, Sergio Cruz, was living at an unknown location in Mexico.

When, in August, Elizabeth discovered her marriage may never have been legal, she filed a petition for annulment, claiming her husband had defrauded her by representing himself as single when, in fact, he was still married to another woman.

The Elkhart Circuit Court found the marriage void. Judge Michael Christofeno issued a decree of annulment and ordered the husband to pay wife’s $3,000 attorney fees.

But Sergio, arguing the annulment was void because he had never been served, asked the trial court to set aside the decree under Indiana Trial Rule 60(B). Elizabeth countered that the annulment petition was an amended version of the dissolution petition, so she was not required to serve her husband by summons.

Ultimately, the trial court denied the husband’s request.

However, the Court of Appeals reversed in Sergio Alberto Cruz v. Elizabeth Saldivar Cruz, 21A-DN-1954, finding the trial court erred in entering a decree of annulment.

The appellate panel noted the Legislature has created distinct statutes for annulment of a marriage (Indiana Code chs. 31-11-8 through 10) and dissolution of marriage (I.C. § 31-15-2-2), which signifies each is a separate cause of action. In addition, the Legislature requires pleadings of different grounds for each.

Consequently, because of the Legislature’s intent to create separate causes of action for annulment and dissolution, and the varying proof required and remedies available for each, the trial court should not have found the wife’s annulment petition was a mere amendment of her dissolution petition.

“The factual circumstances giving rise to the dissolution differ from those of an annulment: an irretrievable breakdown of the marriage versus a misrepresentation of Husband’s marital status,” Judge Leanna Weissmann wrote for the court. “The general injuries sustained in each action also vary, with the dissolution action involving only a failed legal relationship and the annulment action involving an additional fact that renders the marriage void or voidable by law.

“The general conduct causing those injuries also is disparate,” Weismann continued. “The parties’ inability to preserve their relationship prompted the dissolution before Wife ever learned of the alleged fraud. Yet the fraud was the conduct underlying the annulment.”

The case was remanded for further proceedings.