In re the MARRIAGE OF Jorge L. RAMIREZ

165 Cal.App.4th 751

81 Cal.Rptr.3d 180

In re the MARRIAGE OF Jorge L. RAMIREZ and Lilia Llamas.Jorge L. Ramirez, Appellant,

v.Lilia Llamas, Respondent.

No. E043180.

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

July 30, 2008.

Darrell J. York, Tustin, for Appellant.

Ellen Weinfurtner, for Respondent.

OPINION

RAMIREZ, P.J.

Jorge L. Ramirez (Jorge) ¹ appeals from a judgment annulling his second marriage to Lilia Llamas (Lilia), following a bifurcated trial in which the court found the marriage void due to fraud. The trial court found the first marriage between Jorge and Lilia was a void attempt at a Mexican marriage performed in California. It found the second marriage void because of fraud, relating to the fact Jorge married Lilia even though he had begun a love affair with Lilia's sister prior to the second marriage, that he intended to continue even after the remarriage to Lilia. Jorge appeals the judgment of nullity, and the finding that Lilia was a putative spouse. We affirm.

Background

Jorge, an immigrant from the State of Michoacán, Mexico, lived in the United States and sought legal residence here. His mother was a permanent resident and sponsored Jorge in his application for that status. He began his application process in 1994 or 1995 but because his mother was not a citizen herself, the process took many years.

In 1999, Jorge and Lilia were married in a religious ceremony in Moreno Valley, California. The ceremony was performed by a priest or other official from the State of Jalisco, Mexico, and an “Acta de Matrimonia” was issued. No marriage license was issued by the State of California. In 2001, Jorge and Lilia became aware that the 1999 marriage was invalid because Lilia's prior divorce had not been final for 300 days prior to the marriage. Additionally, because it was made to look as though the parties were married in Mexico, the Mexican marriage certificate would prevent Jorge from getting his green card because it would make it appear that he had not been in continuous residence in the United States.

The parties were remarried in 2001 and obtained a confidential marriage license. After the death of Jorge's mother, Lilia assumed the position as Jorge's sponsor to pursue his application for permanent residence and citizenship. In 2004, after she signed a document related to his immigration status, Jorge informed Lilia that it would be the last one. Two weeks later, in May, 2004, he took Lilia out to dinner and asked for a divorce because he was in love with someone else and always had been. In June 2004, Jorge moved out.

That same month, Lilia found out who the other woman was when she overheard a conversation between Jorge and Lilia's sister Blanca. Jorge had begun an affair with Blanca prior to the 2001 marriage, and it lasted until 2005. The intercepted conversation occurred in 2005. Lilia asked her teenaged son Victor to call Blanca, who babysat for Jorge and Lilia's daughter, on her cell phone to inquire if she would be joining them for lunch with the child. Blanca, at a restaurant with Jorge, had the cell phone in her purse. Instead of pressing the stop key, she pressed the button to answer the call, so the conversation she was having with Jorge was overheard on Victor's cell phone, which Lilia and Victor listened to by activating the loudspeaker. In this conversation, Jorge professed his love for Blanca, assured her that they would be together once he got his share of money and property from Lilia, and told her that he had only married Lilia to gain permanent residence status. This conversation occurred after Jorge had moved out.

Shortly after the parties separated, an attempt was made to reach an agreement with Jorge as to the disposition of assets. Lilia has a real estate broker's license and she and Jorge had worked together in the realty business during their marriage. Lilia's attorney prepared a proposed settlement agreement listing five parcels of real property as community property, and three as Lilia's separate property. Lilia offered Jorge one of the properties, but he declined. He then filed a petition for dissolution of the marriage on April 21, 2005.

On June 22, 2005, Lilia filed a response to the petition and a request for a judgment of nullity of marriage. At the court trial on the bifurcated trial relating to the status of the marriage, Jorge demonstrated he had obtained his permanent resident status in 2002. He denied having a relationship with Blanca, although several telephone messages left on Blanca's cell phone and retrieved by a close family friend of Blanca and Lilia-in addition to the conversation overheard by Lilia-belied his protestations.

The trial court concluded the 1999 marriage was void under the laws of Mexico and neither spouse was a putative spouse since neither acted in good faith. Although Lilia denied it, the court found she was likely the party who made the wedding arrangements since her family is from Jalisco, the ceremony was performed by an official from Jalisco, and the marriage certificate was issued by the State of Jalisco.

The court also found the second marriage was void because Jorge perpetrated a fraud on Lilia by carrying on an extramarital affair with Blanca. The court found that Jorge did not marry Lilia because he was worried about his immigration or work status; instead, the court found Jorge made false statements to Blanca about his reasons for marrying Lilia, including a need for a green card to string her along and to delay having to make a commitment to her. Thus, the fraud related to Jorge's marrying Lilia while carrying on a sexual relationship with Blanca which he intended to maintain. The court concluded Jorge wanted to “have his cake and eat it too” by carrying on sexual relationships with both women at the same time.

The trial court held that this kind of fraud goes to the heart of the marital relationship and declared the 2001 marriage void on the ground of fraud. (Fam.Code, § 2210, subd. (d).) The court also found Lilia was a putative spouse, for purposes of making a division of property at a subsequent proceeding. Jorge appeals.

Discussion

Jorge contends (1) that he held a good faith belief in the validity of the 1999 marriage and should have been deemed a putative spouse of that marriage, and (2) his extramarital affair did not constitute fraud such as would render the 2001 marriage void. We review the judgment of nullity or a decision regarding the validity of a marriage under the substantial evidence standard of review. ( In re Marriage of Liu (1987) 197 Cal.App.3d 143, 155, 242 Cal.Rptr. 649.)

A. The 1999 Marriage

First we address Jorge's contention that he should have been deemed a putative spouse of the 1999 marriage. An innocent party to an invalid marriage may obtain relief as a putative spouse if the party believed in good faith that the marriage was valid. ( Estate of DePasse (2002) 97 Cal.App.4th 92, 107, 118 Cal.Rptr.2d 143; see also Code Civ. Proc., § 2251, subd. (a)(1).) A putative spouse is entitled to the division of property acquired during the union as community property or quasi-community property. ( DePasse, supra, at p. 107, 118 Cal.Rptr.2d 143; Code Civ. Proc., § 2251, subd. (a)(2).) The determination of the party's good faith is tested by an objective standard. ( DePasse, supra, at pp. 107-108, 118 Cal.Rptr.2d 143; Centinela Hospital Medical Center v. Superior Court (1989) 215 Cal.App.3d 971, 975, 263 Cal.Rptr. 672.) A subjective good faith belief alone, even by a party that is found credible and sympathetic, is insufficient. ( Welch v. State of California (2000) 83 Cal.App.4th 1374, 1378, 100 Cal.Rptr.2d 430.) Instead, under an objective standard, a claim of putative spouse status must be based on facts that would cause a reasonable person to believe in good faith that he or she was married and that the marriage was valid under California law. ( DePasse, supra, at p. 108, 118 Cal.Rptr.2d 143; In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, 721, 722-723, 248 Cal.Rptr. 807.)

Here, regardless of whether Jorge subjectively believed the 1999 marriage was valid, a reasonable person would not have. The marriage was performed in Moreno Valley, California, by a priest or other official from the State of Jalisco, Mexico. The official issued an “Acta de Matrimonio,” a marriage license, stating that the wedding was performed in Jalisco. This in itself is enough to put a reasonable person on notice that the marriage license, and hence the marriage itself, was not valid. Thus, we hold that Jorge was not a putative spouse as to the 1999 marriage.

B. The 2001 Marriage

A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud. (Fam.Code, § 2210, subd. (d).) 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. ( In re Marriage of Meagher and Maleki (2005) 131 Cal.App.4th 1, 3, 31 Cal.Rptr.3d 663 ( Meagher ).) The fact represented or suppressed to induce consent to marriage will be deemed material if it relates to a matter of substance and directly affects the purpose of the party deceived in entering the marital contract. ( Handley v. Handley (1960) 179 Cal.App.2d 742, 746, 3 Cal.Rptr. 910.) In other words, the fraud relied upon must be such as directly defeats the marriage relationship and not merely such fraud as would be sufficient to rescind an ordinary civil contract. ( Meagher, supra, at pp. 6-7, 31 Cal.Rptr.3d 663; Williams v. Williams (1960) 178 Cal.App.2d 522, 525, 3 Cal.Rptr. 59.) Fraudulent intent not to perform a duty vital to the marriage state must exist in the offending spouse's mind at the moment the marriage contract is made. ( Bruce v. Bruce (1945) 71 Cal.App.2d 641, 644, 163 P.2d 95.)

A promise to be a kind, dutiful and affectionate spouse cannot be made the basis of an annulment. ( Marshall v. Marshall (1931) 212 Cal. 736,...