This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
The Petitioner filed for dissolution of marriage, seeking division of community property and custody of two minor children. The Respondent was allegedly unreachable, leading to service by publication. The trial court granted the dissolution, awarded custody to the Petitioner, and divided the property. The Respondent later claimed he was not properly served and sought relief, alleging the Petitioner knew his whereabouts but misrepresented this to the court (paras 3-6).
Procedural History
- District Court, January 14, 1992: Entered a judgment and decree of dissolution of marriage, granting the Petitioner sole custody of the children and dividing community property (para 5).
- District Court, January 3, 1994: Denied the Respondent's motion for relief from judgment, finding proper service by publication and that the Respondent was a fugitive (para 7).
Parties' Submissions
- Appellant (Respondent): Argued that the judgment was void due to improper service, as the Petitioner knew or could have ascertained his address but failed to provide actual notice, violating due process (paras 6, 13).
- Appellee (Petitioner): Did not file an answer brief to challenge the Respondent's factual assertions (para 2).
Legal Issues
- Whether the trial court erred in finding that service by publication was proper when the Petitioner allegedly knew or could have ascertained the Respondent's address (para 13).
- Whether the judgment was void due to a violation of the Respondent's due process rights (para 13).
Disposition
- The Court of Appeals reversed the trial court's decision and remanded the case for further proceedings to determine whether service by publication met due process standards (para 14).
Reasons
Per Apodaca CJ (Donnelly and Hartz JJ. concurring):
The Court held that due process requires notice reasonably calculated to inform a party of the proceedings and provide an opportunity to be heard. Constructive service by publication is permissible only when actual notice is not feasible despite due diligence. The conflicting affidavits from the parties created factual issues regarding whether the Petitioner exercised due diligence in attempting to locate the Respondent. The trial court erred in resolving these issues solely on the record without an evidentiary hearing. The judgment was voidable if service did not meet due process standards, and the Respondent's motion was not time-barred under Rule 1-060(B)(4) (paras 8-13).