Husband with 2 wives avoid cancellation at COA


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

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

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

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

But Sergio, arguing that the rescission was void because it was never served, asked the trial court to set aside the executive order under Indiana Trial Rule 60(B). Elizabeth countered that the motion to quash was a modified version of the motion to dissolve, so she was not required to serve her husband by summons.

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

However, the Court of Appeal reversed Sergio Alberto Cruz vs. Elizabeth Saldivar Cruz21A-DN-1954, finding that the trial court erred in issuing an order of rescission.

The appeals panel noted that the Legislature created separate statutes for annulment of a marriage (Indiana Code ch. 31-11-8 to 10) and dissolution of marriage (Ind. Code § 31-15- 2-2), meaning each is a separate cause of action. In addition, the legislature requires pleadings on different grounds for each.

Therefore, because of the legislature’s intention to create separate causes of action for annulment and dissolution, and the different evidence required and remedies available for each, the trial court should not have conclude that the wife’s motion to annul was a mere modification of her motion to dissolve.

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

“The general conduct that causes these injuries is also disparate,” Weismann continued. “The parties’ inability to preserve their relationship resulted in the dissolution before the wife ever knew of the alleged fraud. Yet fraud was the behavior underlying the annulment.

The case was sent back for further action.


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