from the Marion Superior Court The Honorable Steven R.
Eichholtz, Judge Trial Court Cause No. 49D08-1601-EU-2099.
ATTORNEYS FOR APPELLANT Marvin Mitchell Richard J. Dick
Mitchell Dick McNelis, LLC Indianapolis, Indiana.
ATTORNEY FOR APPELLEE R. Brock Jordan Densborn Blachly LLP
Milana Stelatovich Riggs was married to Leon Riggs in 1968.
In 1969, a Mexican court issued a document purporting to
dissolve their marriage. In 1973, Milana and Leon filed
cross-petitions to dissolve the marriage; neither petition
was resolved. In 1977, Leon filed a declaratory judgment
action seeking a declaration as to the validity of the
Mexican dissolution document; this pleading also remained
unresolved. From 1970 until 2015, Leon filed his taxes as a
single individual and structured his finances and business as
though he were single. In 2015, after Leon had been suffering
from dementia for some time, Milana filed a petition to
dissolve the marriage. Before that proceeding could be
resolved, Leon died. After his death, Milana filed an
election to take against the will as a surviving spouse in
the probate action. The personal representative of Leon's
estate filed a motion for summary judgment, arguing that
Milana was barred by equitable doctrines from electing to
take against the will as a surviving spouse.
The probate court granted summary judgment in favor of the
personal representative, and Milana now appeals. She argues
that the probate court erroneously struck some of her
designated evidence based upon the Dead Man's Statute and
that summary judgment is not warranted on the doctrine of
laches. Finding no error, we affirm.
As this court explained in a related dissolution appeal,
"Leon and Milana were married in April 1968, and they
lived together as husband and wife for one year. In April
1969, the couple separated and never again lived together.
There were no children of the marriage." Riggs v.
Riggs, 49A02-1605-DR-1057, slip op. p. 2 (Ind.Ct.App.
May 22, 2017), trans. denied.
In 1969, Milana went to Mexico and met with an attorney. A
Mexican court issued a divorce decree in December 1969. In
1969, Leon's tax filing status was married; from 1970
until his death in 2015, his filing status was single. In
1973, Milana filed a petition in Indiana to dissolve the
parties' marriage; Leon filed a cross-claim seeking the
same relief. In 1977, Leon filed a complaint for a
declaratory judgment seeking a determination of the validity
of the Mexican divorce decree. Neither the 1973 nor the 1977
actions proceeded to an ultimate determination, leaving open
the question of the validity of the Mexican decree.
In 2015, Milana filed another petition to dissolve the
marriage. By that time, Leon was suffering from dementia,
required constant care, and was not competent to participate
in the dissolution action. Id. Leon died testate on
December 4, 2015; at the time of his death, no dissolution
decree had been entered. The trial court dismissed the
dissolution action for lack of jurisdiction following
Leon's death; Milana appealed that determination and this
Court affirmed. Id.
Following Leon's death, Leon's daughter, Cynthia
Hill, was appointed personal representative of his estate
(the Personal Representative). On February 24, 2016, Milana
filed an election to take against Leon's will, claiming
to have been married to Leon at the time of his death,
renouncing all provisions in his will, and electing to take
her legal share in his estate. She also filed claims against
his estate, seeking compensation under five separate
On March 29, 2016, the Personal Representative filed a motion
to strike Milana's election to take against the will, and
on May 6, 2016, the probate court agreed to treat the motion
as a summary judgment motion. In the summary judgment motion,
the Personal Representative argued that the equitable
doctrines of laches, unclean hands, and equitable estoppel
prevent Milana from taking against the will as Leon's
Milana responded in opposition to summary judgment,
designating her own affidavit and portions of her deposition
from the 1970s litigation in support. The Personal
Representative moved to strike Milana's affidavit and
deposition pursuant to the Indiana Dead Man's Statute.
The probate court granted the motion to strike. Milana also
filed a cross-motion for summary judgment on October 20,
2016, arguing that she is entitled to relief on her election
against the will as a matter of law and that the Personal
Representative is estopped from arguing that the Mexican
divorce decree was valid.
Following a hearing, the probate court granted the Personal
Representative's summary judgment motion and denied
Milana's cross-motion for summary judgment on February
14, 2017. In relevant part, the probate court found and
concluded as follows:
The Court agrees with the Personal Representative's
position that the issue before this court is not to determine
whether or not the Mexican decree is valid. The issue before
the court is whether or not Milana or the estate are barred
from seeking or contesting the spousal election as a result
of the application of the equitable doctrines of laches,
estoppel, or unclean hands.
. . . The personal representative has failed to show
Milana's claim is barred by estoppel or unclean hands.
The deciding issue in this case is whether or not Milana is
barred from claiming against the estate as the surviving