California Family Law Report

Case of the Month Archive

Fraud must relate to “sexual, procreative or child-rearing aspects of marriage” . . .

In affirmance, Fourth District majority holds that trial court did not err by granting annulment on grounds of fraud where husband purposely deceived wife into believing that he would be faithful to her, but carried on sexual relationship with her sister before and during marriage

In 1994 or 1995, Jorge Ramirez, an immigrant from Michoacán, Mexico, applied to become a legal resident of the United States; he was sponsored by his mother, herself a legal resident. In 1999, Jorge and Lilia Llamas participated in a marriage ceremony performed by apriest or other official from Jalisco, where Lilia’s family is from, and they received an “ ‘Acta de Matrimonia,’ ” which made it appear that they had been married in Mexico. The couple had not obtained a California marriage license. In 2001, Jorge and Lilia learned that their marriage was not valid under Mexican law because Lilia’s divorce had not been final for 300 days before their marriage. Also, Jorge feared that he might be denied his green card because the Mexican marriage certificate seemed to indicate that “he had not been in continuous residence” in the U.S. Jorge and Lilia obtained a confidential marriage license and remarried.

After Jorge’s mother died, Lilia replaced her as Jorge’s sponsor for permanent residence and citizenship. In April or May 2004, Lilia signed the final document relating to Jorge’s immigration status. Two weeks after that, while they were dining out, Jorge asked Lilia for a divorce, saying that he was in love with someone else and always had been. He moved out in June. Soon thereafter, Lilia learned who the “other woman” was — her sister Blanca, with whom Jorge had been having an affair since 2001. Lilia overheard a conversation between them when she asked her teenaged son, Victor, to call Blanca, who babysat for Lilia and Jorge’s daughter, to see if Blanca would be coming over for lunch. Blanca was at a restaurant with Jorge when she received Victor’s call. Instead of pressing the stop key on her cell phone, she hit the answer button. Victor and Lilia then heard Jorge tell Blanca that he loved her and that they would be together as soon as he got his share of “money and property” from Lilia, and assure Blanca that he had married Lilia only to get permanent resident status. The assets in question related to a realty business that Jorge and Lilia had worked during their marriage; in settlement discussions, she had offered him one of five community-property parcels, but he refused.

Jorge filed for divorce on April 21, 2005; Lilia filed her response, along with a request for an annulment, on June 22, 2005. At a bifurcated trial on the status of the marriage, Jorge testified that he became a permanent resident in 2002, and asserted that he had no relationship with Blanca. Lilia presented evidence of phone messages and the overheard conversation to support her claim that her second marriage to Jorge should be annulled on the ground of fraud. When the trial concluded, the court found that the first marriage was void under the laws of Mexico, and that neither Jorge nor Lilia was a putative spouse because neither had acted in good faith in entering into it. Turning to the second marriage, the court found that Jorge had committed fraud by marrying Lilia while he was having a sexual relationship with Blanca that he did not intend to terminate. The court reasoned that “this kind of fraud goes to the heart of the marital relationship”; thus, the second marriage was void under Fam C §2210(d) [marriage voidable where consent of either party was obtained by fraud] on the ground of fraud. The court also found that Lilia was a putative spouse for purposes of dividing the marital property.

Jorge appealed, but a Fourth District majority affirmed.

What a fool believes . . .
According to Jorge, the trial court erred by failing to find that he was a putative spouse of the 1999 marriage. The justices noted that under Fam C §2251(a)(2), a putative spouse is entitled to an equal share of the property that the spouses acquire during marriage as community or quasi-community property. To qualify as a putative spouse, they reasoned, Jorge had to show that he had a good-faith belief that the first marriage was valid, “based on facts that would cause a reasonable person” to have such a belief. Here, the justices found, a reasonable person could not believe in the validity of a marriage performed in California by a Mexican official and memorialized in a document stating that the wedding had been held in Mexico; at the very least, the facts would put such a person on notice that its validity was a little iffy. Given that, the justices agreed with the trial court that Jorge was not a putative spouse of the first marriage.

He wanted it all . . .
Jorge next contended that his relationship with Blanca did not constitute the type of fraud that made his second marriage voidable. The majority justices noted that, as the First District discussed in In re Marriage of Meagher and Maleki (2005) 131 Cal.App.4th 1, 31 Cal.Rptr.3d 663, 2005 CFLR 10027, 2005 FA 1203, “[a] marriage may be annulled for fraud only in an extreme case where the particular fraud goes to the very essence of the marriage relation.” They noted that the trial court’s finding of fraud was based not on Jorge’s efforts to get his green card, but on “Jorge’s intent to continue the ongoing simultaneous sexual relationships with Lilia and Blanca” at the time he married Lilia in 2001. The majority justices reasoned that under Fam C §720, spouses “ ‘contract toward each other obligations of mutual respect, fidelity, and support.’ ” Here, they continued, when Jorge married Lilia, he knew that he did not intend to perform his obligation of fidelity to her by giving up his relationship with Blanca, but he purposely deceived Lilia into believing that he would be faithful. Clearly, the majority concluded, this is fraud that “directly relates to a sexual aspect of marriage - sexual fidelity.” Accordingly, the majority held, under Fam C §720 and §2210(d), Jorge committed fraud, and Lilia was entitled to an annulment.

Yes and no . . .
In a concurring and dissenting opinion, Justice Gaut agreed that the first marriage was invalid, but would reverse the judgment of nullity regarding the second. The justice fears that the majority’s decision “could have unintended repercussions in family law practice, leading to unnecessary litigation over title to property acquired by spouses during marriage which may not be considered community property if the marriage is deemed a nullity.” Justice Gaut concludes that infidelity, by itself, should not be a basis for annulment on the ground of fraud, and that “[a]nnulment should be the exception, not the rule.”