De Carmona v. Vasquez

Maria Rosario Ponce de Carmona, appellee, v. Mario Carmona Vasquez, appellant.

No. A-21-573

Court of Appeals of Nebraska

April 12, 2022

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: Lori A. Maret Judge. Reversed and remanded with directions.

David V. Chipman, of Monzón, Guerra & Associates, for appellant.

No appearance for appellee.

Moore Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

BISHOP, JUDGE.

INTRODUCTION

Mario Carmona Vasquez appeals the order of the Lancaster County District Court overruling his motion to vacate and/or set aside the default decree of dissolution of marriage obtained by Maria Rosario Ponce De Carmona allegedly without notice to him. We reverse and remand with directions.

BACKGROUND

Mario and Maria were married in Mexico in 1992. They subsequently moved to Nebraska, and they had twin girls in 2003.

Maria filed a "[p]etition" for dissolution of marriage on November 18, 2020, seeking "full custody" of the parties' children, child support, and an equitable distribution of the parties' property and debts. Mario was personally served with summons and a copy of the petition on December 15. Mario did not file a responsive pleading.

Two months later, on February 16, 2021, Maria filed a motion for default hearing, wherein she alleged that Mario had been served with summons on December 15, 2020, more than 60 days had passed since service was effectuated, and Mario had not filed an answer in this matter. The "Certificate of Service" states that a copy of the motion was served on Mario by "First Class Mail." Also on February 16 2021, Maria filed a notice of hearing, stating that a "Default Hearing on Plaintiff's Complaint for Dissolution of Marriage" would be held via Zoom on March 31. The "Certificate of Service" states that a copy of the notice was served on Mario by "First Class Mail."

Maria filed an amended "[p]etition" for dissolution of marriage on March 24, 2021.

A default hearing took place on March 31, 2021. Maria and her counsel appeared via video conference; an interpreter for Maria also participated. Mario did not appear, nor was he represented by counsel. The district court inquired about the "amended complaint." Maria's counsel responded that it was filed to correct the spelling of Mario's surname, but then indicated there was uncertainty about the alleged corrected version based on what Maria was telling him at that time. The court also inquired about whether Mario should have 30 days to respond since the amended document had just been filed on March 24. Maria's counsel responded that the only change was to correct a "[scrivener's] error" and no substantive changes were made. The court concluded that "there might be an issue," but it was "satisfied that [Mario] was aware of these proceedings and chose not to participate."

Maria then proceeded to ask the district court to award her full custody of the parties' twins, who were 18 years old, and to grant Mario parenting time at Maria's discretion. Maria also asked the court to order Mario to pay child support, as set forth in her proposed child support calculation which was received into evidence. According to Maria, three properties in Lincoln, Nebraska, were purchased during the parties' marriage: the parties' residence on Q Street, a rental property on Dudley Street, and another property on Prestwick Road. Printouts from the Lancaster County Assessor's website for all three properties were received into evidence. According to the printouts, the Q Street property had a 2021 preliminary value of $147, 000, and Mario was listed as the owner; the Dudley Street property had a 2021 preliminary value of $109, 600, and Mario and Maria were listed as the owners; and the Prestwick Road property had a 2021 preliminary value that was cut off on the printout (it shows the 2020 assessed value was $111, 800), and it lists the owners as Alicia Vasquez Juarez and Mario. Maria asked the court to award the Q Street and Dudley Street properties to her, and to award the Prestwick Road property to Mario. She also agreed to relinquish any rights she had to the parties' house in Mexico, but her attorney acknowledged that the court probably did not have jurisdiction over that property. Maria asked the court to award three vehicles to her and two vehicles to Mario. She agreed to relinquish any right to Mario's 401K and asked the court to award that solely to Mario. She also asked the court to award her $40, 000 of the parties' bank account, which she claimed had about $80, 000 in it at that time.

The district court entered a default decree of dissolution on April 1, 2021; the decree was prepared by Maria's counsel. Maria was awarded sole legal and physical custody of the children, and Mario's parenting time was to be at the sole discretion of Maria. Mario was also ordered to pay child support in the amount of $1, 125 per month for the two children. Maria was awarded the Q Street and Dudley Street properties, and Mario was awarded "his interest" in the Prestwick Road property. Maria was awarded three vehicles and Mario was awarded two vehicles. Maria was awarded her 401K and pension as her sole and separate property, and Mario was awarded his 401K as his sole and separate property. Maria was awarded a $40, 000 judgment based on her 50 percent share of the money in the bank account that was valued at $80, 000 at the time of the default hearing.

On April 28, 2021, Mario filed a "Motion to Vacate and/or Set Aside and Notice of Hearing." He alleged that he did not receive notice of the default hearing, the property distribution was "grossly inequitable" to him, and that allowing his parenting time to be done at the "sole discretion" of Maria was contrary to law. Mario asked that the April 1 judgment be vacated and/or set aside, and that he be allowed to file a responsive pleading.

A hearing on Mario's motion to vacate and/or set aside the judgment was held on May 28, 2021. Mario offered three affidavits in support of his motion: his affidavit, his brother's affidavit, and his mother's affidavit. The district court did not specifically receive these exhibits into evidence, but there were no objections to the exhibits made on the record.

In his affidavit, Mario stated as follows. . . . .

3. On or about December 15, 2020, I was personally served with the summons in this matter.

4. On February 16, 2021, [Maria] alleges that she sent notice of default hearing in this matter to me by "First Class Mail." I never received this notice of hearing.

5. Throughout all of these proceedings, [Maria] and I continued to cohabitate together. This means that [Maria] most often got our mail. [Maria] never said anything to me about the default hearing until after the hearing was over.

6. That upon learning of the judgment entered on or about April 1, 2021, I took immediate action to hire counsel and my attorney provided the attached proposed response to [Maria's] Complaint for Dissolution of Marriage . . . to [Maria's] counsel.

7. That the judgment entered on or about April 1, 2021[, ] awarded [Maria] our unencumbered real property at . . . Q Street . . . (assessed at $147, 000) and our unencumbered real property at . . . Dudley Street . . . (assessed at $109, 600). I was awarded the property at . . . Prestick [sic] Road . . . (assessed at $124, 200) that is jointly owned with my mother and is not my home, but in fact my mother's and father's home. I have never financially contributed in any way to the purchase of the home at . . . Prestick [sic] Road.

8. I was awarded as a part of the April 1, 2021[, ] judgment, my 401(k) through my employer . . . which has about $26, 980.00 in it.

9. . . . In the Decree, my Parenting Time was left up to the discretion of [Maria]. I have a good and strong relationship with my daughter's [sic]; therefore, there is no reason for why [Maria] should determine my parenting time with them.

10. I am requesting that this Court vacate the Decree entered on April 1, 2021[, ] and allow me to file a responsive pleading out of time.

(Emphasis in original.)

The affidavit of Mario's brother is largely irrelevant to this appeal, however the brother did state:

Mario is a citizen of the United States, while both of my parents and myself are legal permanent residents. Therefore, we feel Mario is the best person to put on our financial accounts in case a situation arises where we could not access these accounts due to our statuses in the country.

In her affidavit, Alicia Vasquez Juarez stated as follows. . . . .

2. I am the mother of [Mario].

3. In March 2016, I purchased the home at . . . Prestwick Road . . . for $90, 000. My husband . . . and I paid cash for this home. This is mine and my husband's home. Mario did not contribute in any way financially to the purchases [sic] of this home.

4. My husband and I regularly travel back and forth to Mexico. Because of our travels, we decided to put the home also in the name of Mario so he could help deal with any situations with the home in our absence. Mario has never lived in this home. . . .

5. [Maria] has always known that the home at . . . Prestwick Road . . . is our home and not Mario's home.

Maria did not put forth any evidence at the hearing, but asked the district court to "take judicial notice of the brief that I filed in response." The court noted it had "plaintiff's reply brief." However, that brief does not appear in our appellate record.

Both parties made arguments to the district court. Mario's counsel maintained that "[Mario] unequivocally states he . . . never received notice" of the default hearing....