Elali v. Marchoud (In re Elali)

79 Cal.App.5th 668

294 Cal.Rptr.3d 804

IN RE the MARRIAGE OF Samir ELALI AND Mayssa MARCHOUD.

Samir Elali, Respondent,

v.Mayssa Marchoud, Appellant.

E075103

Court of Appeal, Fourth District, Division 2, California.

Filed June 8, 2022

Peirano & Associates, Cristian L. Peirano, Santa Ana, Sean R. Bozarth and Tom N. Yacko, for Appellant.

Chung & Ignacio and Eric N. Chung, for Respondent.

OPINION

CODRINGTON, J.

I.INTRODUCTION

While Mr. Samir Elali was married to Ms. Angeles Elali and resided with her in California, Samir married Ms. Mayssa Marchoud in Lebanon.¹ After Samir attempted to terminate the Lebanese marriage, Mayssa filed a petition in California for spousal support without dissolution against Samir. The trial court ruled the Lebanese marriage was bigamous and therefore void under Family Code section 2201, subdivision (a).²

Mayssa appeals from the judgment of nullity. She contends the trial court erred in relying on section 2201(a) in holding the Lebanese marriage was void. Mayssa also contends that the parties' pleading allegations admitting there was a marriage required the trial court to find the Lebanese marriage was valid. In addition, Mayssa contends there was insufficient evidence to overcome the presumption that the Lebanese marriage was valid. Mayssa further argues that a ruling that the Lebanese marriage was valid precluded a different judge from subsequently ruling the marriage was void.

We reject Mayssa's contentions and conclude the trial court did not err in ruling the bigamous Lebanese marriage was void under section 2201(a). We therefore affirm the judgment of nullity.

II.FACTS AND PROCEDURAL BACKGROUND

On August 7, 2014, Mayssa filed in the San Bernardino County Superior Court a petition entitled, "Petition for Spousal Support Without Dissolution of Marriage," under section 4303 (case no. FAMSS1404386). The petition requested spousal support when there was no pending case for marital dissolution or previous enforceable support order. Mayssa alleged she and Samir married on August 28, 2012, and there had been no judgment of nullity, legal separation, or dissolution of marriage entered. Mayssa further alleged that in May 2014, Samir abandoned her, had ceased cohabiting with her, and had not provided her with any support.

On August 8, 2014, Mayssa filed a request for order (RFO) for temporary spousal support, attorney's fees and costs, and a temporary emergency order against eviction. On August 19, 2014, Samir filed a responsive declaration objecting to Mayssa's RFO. Samir alleged the parties were not married but entered into a temporary marriage contract in Lebanon, and on June 10, 2014, Samir terminated the marriage contract under Muslim law. Samir further alleged that Mayssa was fully aware when she married him in Lebanon that he remained legally married to Angeles, whom he married in 1987, in California.

During the trial of Mayssa's RFO for temporary support, the court addressed the issue of awarding spousal support when no dissolution of marriage was requested. The parties disagreed as to whether they were validly married in Lebanon and divorced. Over the course of eight months, beginning on September 26, 2014, the court heard evidence on the matter. Judge Bennett took the matter under submission on May 12, 2015, and on July 2, 2015, issued a signed ruling, entitled "Tentative Ruling On Submitted Matter." Judge Bennett found, based on the evidence presented, including the parties' testimony and testimony by experts on Muslim law, that the Lebanese marriage was valid.

Judge Bennett further found that Mayssa did not receive any notice of Samir's actions attempting to obtain a divorce. Both Mayssa and Samir were domiciled in California and entitled to state and federal due process rights. Samir was a United States citizen, had no residency in Lebanon, and had not lived in Lebanon for over thirty years. Mayssa had not been in Lebanon for over one year and had no notice of Samir's actions attempting to obtain a divorce in Lebanon. Judge Bennett thus concluded in her July 2, 2015 ruling that, "at the time [Mayssa] filed her Petition for Spousal Support Without Dissolution of Marriage, there was no valid judgment of dissolution of marriage entered since the termination of the marriage contract was done without notice to [Mayssa] and an opportunity to be heard in violation of due process."

Litigation resumed on Mayssa's Petition for Spousal Support without Dissolution of Marriage. Because the court previously ruled the Lebanese marriage was valid, on December 16, 2015, Samir filed a petition to nullify the Lebanese marriage based on bigamy, fraud, and force. Samir requested in his petition that the court find the marriage void or voidable and terminate the court's ability to award Mayssa spousal support. The court ordered Samir's petition (FAMSS1509878³ ) consolidated with Mayssa's spousal support petition and RFO (FAMSS1404386). The consolidated petitions for spousal support and to nullify the Lebanese marriage were set for trial.

On February 1, 2016, the court awarded Mayssa monthly temporary spousal support in the amount of $1,309 and granted Samir's request to bifurcate his request to nullify the marriage from trial of "financials." The court ordered that at the upcoming trial in May 2016, it would resolve only the issue of whether to nullify the Lebanese marriage.

On February 24, 2016, Samir filed an RFO to modify temporary spousal support based on Samir and Angeles stipulating on February 9, 2016, that Samir would pay Angeles monthly child and spousal support.⁴ Samir filed a petition for dissolution of his marriage with Angeles in 2013. On April 14, 2016, the court heard and took under submission Samir's RFO to modify support. The court also granted leave for Samir to change his petition to nullify the Lebanese marriage to a petition for dissolution of the marriage. That same day, Samir filed his amended petition for dissolution, alleging that the parties were married. Samir requested a divorce based on irreconcilable differences and termination of the court's ability to award support.

On May 19, 2016, the court ruled on Samir's RFO for modification of temporary spousal support. The court ordered that upon Samir providing the court with proof he was paying child support to Angeles pursuant to her and Samir's support stipulation, the temporary spousal support awarded to Mayssa would be reduced.

On August 23, 2016, the parties resolved their dispute over spousal support by executing an "Agreement for Judgment," agreeing to Samir paying Mayssa a lump sum of $7,195 for spousal support by September 23, 2016, with the parties waiving all future spousal support. The court approved the stipulation and ordered it incorporated into a court order.

During a hearing following the scheduled status conference on July 19, 2017, Judge Bennett stated that "the Court determined that there was a valid marriage between [Mayssa] and [Samir], notwithstanding that [Samir] was married to [Angeles] .... That ruling then precipitated [Samir] to amend his petition for a nullity and request dissolution of marriage.... [T]hen there were still issues in the dissolution matter concerning spousal support." Judge Bennett added that once the parties reached an agreement on spousal support, she thought she was done with the case, but then Samir raised an issue regarding nullity of the marriage and the matter was set for a status conference.

At the status conference on July 19, 2017, Judge Bennett told the parties she could no longer keep the case because of her heavy caseload. Therefore the case was reassigned to Judge Singley.

On March 13, 2019, Judge Singley commenced the trial on Samir's petition for dissolution. Judge Singley sua sponte ordered Samir's petition for dissolution amended to allege a request for nullification of the Lebanese marriage, rather than dissolution, based on evidence of bigamy. The court continued the trial of Samir's amended petition for nullity to March 20, 2019. During the trial on March 20, 2019, Samir's attorney noted that after his petition for a nullity was filed, Judge Bennett bifurcated the issue of nullity because it was a threshold issue. Then after Samir amended his nullity petition to be a petition for dissolution, trial of the issue of nullity went off calendar.

Judge Singley responded, "what I find myself wondering in all of this is what am I supposed to do with the fact that if the evidence supports the reality if the marriage is void or violating the Family Code Section that deals with bigamy, am I supposed to ignore that?" Mayssa's attorney informed the court that "the only thing before the Court today is status, community property, and attorney fees and costs. Spousal support has been adjudicated and it's done."

Judge Singley inquired, "How do I get around 2201 of the Family Code, though, that says a subsequent marriage contracted by a person during the life of his or her former spouse with a person other than the former spouse is illegal and void unless there's an exception[ ] that [doesn't] apply here[?]" Judge Singley acknowledged that Judge Bennett tried the issue of whether Samir terminated his Lebanese marriage and ruled he did not because there was no due process. Judge Bennett therefore ruled the Lebanese marriage remained a valid marriage.

Judge Singley added, "But that doesn't necessarily mean that once you find a valid marriage that it's not void." Mayssa's attorney stated he agreed but said he previously thought res judicata precluded Mayssa from challenging the court's previous ruling the marriage was valid. Mayssa's counsel, however, believed Judge Singley could make the determination of whether the marriage was void, and then there would be no need to rule on dissolution or address the community property issue. Counsel stated he had evidence proving the first marriage between Samir and Angeles and that the marriage was never judicially dissolved in this country.

Samir's attorney...