Opinion
G056285
09-03-2019
In re the Marriage of ALEX and SAWSAN ESMAIL. ALEX ESMAIL, Respondent, v. SAWSAN ESMAIL, Appellant.
Law Offices of Zulu Ali, Zulu Ali, and Geoffrey W. Sorkin for Appellant. Alex Esmail, in pro. per., for Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on September 3, 2019, be modified as follows:
In the fourth paragraph on page 3, the sentence beginning with: "According to Alex" will read, "According to Alex, Sawsan also claimed that she could not engage in sexual relations for at least four weeks following their civil marriage because she was suffering from gynecological problems caused by a prior surgery."
This modification does not effect a change in the judgment.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16D008684 ) OPINION Appeal from a judgment of the Superior Court of Orange County, Layne H. Melzer, Judge. Affirmed. Law Offices of Zulu Ali, Zulu Ali, and Geoffrey W. Sorkin for Appellant. Alex Esmail, in pro. per., for Respondent.
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Sawsan Esmail appeals from the judgment declaring her brief marriage to Alex Esmail a nullity. The trial court concluded the parties never consummated the marriage and that Sawsan procured the marriage by fraud because she never intended to consummate it. Sawsan asserts the judgment must be reversed because there is no substantial evidence to support either of those key factual findings. We disagree. We therefore affirm the judgment.
Because the parties share the same last name, we refer to each by first name for the sake of clarity. No disrespect is intended.
Curiously, in light of the issues she raises in this appeal, Sawsan herself initially sought to nullify the marriage on the ground of Alex's "physical incapacity" to consummate it. She later claimed, both in her trial brief and her trial testimony, that the marriage was not consummated. Sawsan's testimony, standing alone, is sufficient evidence to support the court's finding on that point. Her contention that her testimony was the product of "significant pressure" from the trial court is belied by the record.
The conclusion that Sawsan never intended to consummate the marriage is supported by the court's findings that (1) she lied when claiming she had not known of Alex's gender reassignment at the time of the marriage, and (2) she falsely relied on her supposed discovery of that fact as her justification for ending the marriage before it was consummated. Sawsan's challenge to the court's credibility determinations underlying those findings fails as a matter of law. It is well established that we do not review credibility determinations on appeal.
FACTS
We take our facts largely from the trial court's statement of decision.
Alex was born in the United States but lived for a considerable time in Israel. His passport identified his gender as female, and after undergoing a gender reassignment, he decided to amend his passport to correctly identify his gender as male.
Sawsan, an attorney with the Palestinian Authority in Jordan, represented to Alex that she could assist him in obtaining the passport amendment he sought. She was supportive of Alex's gender reassignment and told him it would be an honor to assist him.
Although Sawsan claimed she did not find out about Alex's gender reassignment until after they were married, the court concluded Alex was the more credible witness on that point.
As Alex and Sawsan worked together to obtain the amendment of Alex's passport, he developed romantic feelings for Sawsan, and she "ostensibly reciprocated those feelings." They agreed to marry upon Sawsan's immigration to the United States.
Alex arranged to bring Sawsan's two daughters to the United States; Sawsan and her son soon followed. On August 15, 2016, the parties were married in a civil ceremony, but according to Sawsan they could not engage in sexual relations until after a formal Islamic marriage ceremony was held. According to Alex, Sawsan also claimed that she could not engage in sexual relations for at least four weeks following their civil marriage because she was suffering from gynecological problems caused by a surgical procedure done in Palestine. At Sawsan's insistence, Alex nonetheless began the process of obtaining her permanent resident status in the United States. Over time, Alex came to believe that Sawsan had married him for the sole purpose of bolstering her chances of obtaining permanent residence in the United States.
During the period in which Sawsan "was deferring intimate relations," Alex was contacted by someone in Israel who claimed to be Sawsan's husband. Alex testified that he confronted Sawsan with this information and she admitted she was still married to her children's father.
Sawsan denied that she was still married to her former husband when she and Alex got married, and based on her production of "what appeared to be an authentic, certified and signed under seal, foreign certificate of divorce," the trial court concluded Sawsan was the more credible witness on the issue of her divorce.
The parties separated sometime between September 10, 2016 (according to Alex) and early October (according to Sawsan). In either case, the marriage was of short duration.
In October 2016, Alex filed a verified petition for a judgment of nullity on the grounds of bigamy, fraud, force, and physical incapacity. In support of his petition, Alex stated that Sawsan had refused to consummate the marriage. The following month, Sawsan filed a verified response also seeking a judgment of nullity, on the grounds of fraud and physical incapacity. She also filed a declaration in which she stated unequivocally that the marriage had ended before it was consummated.
Both parties filed trial briefs claiming the marriage was not consummated. Sawsan's brief stated "[a]lthough the parties were legally married on August 15, 2016, they were not married according to the Islamic Shariah laws as of that date. Consequently, the marriage was not consummated as the parties were awaiting the Islamic Marriage."
Alex's brief did not use the word "consummated." However, he detailed the reasons why the marriage could not be consummated at any point throughout its brief duration.
When the trial commenced, the court asked the parties if they were willing to allow the court to accept the statements contained in their trial briefs as evidence, subject to cross-examination. Sawsan, through her counsel, agreed.
On the second day of the trial—which took place nearly two months after the trial's first day—Sawsan appeared without counsel. Acting as her own counsel, Sawsan asked the court to change her request for a judgment of nullity to a request for a judgment of divorce. The court granted Sawsan's request, stating that "in the event it finds that there are not legal grounds for a nullity, we'll, nonetheless, adjudicate the parties' status." The court noted, "it remains to be determined whether or not the marriage will end by dissolution or nullity."
The court then reminded Sawsan that she had agreed, on the first day of trial, that the factual statements contained in her trial brief would be admitted as evidence: "You said that the factual background was true." Sawsan replied, "Yes, that's true." Having established that predicate, the court reminded Sawsan that in "the factual background section, which you've already said is true and accurate, you indicated that you never had sexual relations with [Alex]." Sawsan responded, "Yes." The court then followed up with: "Okay. Is it true? Is it correct that you never had sexual relations with [Alex]?" Sawsan replied, "Yes. I said the same thing, and he said the same thing."
The court then asked Sawsan, "why is it, given that you were already married, you did not have marital relations/sexual relations with [Alex]?" She responded, "I had a lot of question about him. I didn't—I wasn't sure about him, so I wanted to postpone the relationship."
Although Alex initially tried to contradict the assertion in his trial brief that the parties never had sex, he ultimately testified it had never happened.
The court stated to Alex: "[Sawsan] has said you never had sexual relations. Both of you agree—," and Alex promptly interrupted with "Yes." The court then clarified, "So now we agree on that? Yes?" Alex again replied "Yes." --------
Following the trial, the court issued a detailed "Ruling on Submitted Matter and Order," noting "[t]he principal contested issue was whether to terminate the parties' marriage by way of dissolution or annulment."
Based on Sawsan's consistent claim that the parties never consummated the marriage, as well as Alex's "somewhat inconsistent[]" testimony on the point, the court concluded the parties never consummated the marriage.
The court also noted there was a dispute of fact regarding whether Sawsan knew Alex had a gender reassignment before their marriage. Sawsan testified she was not aware of the gender reassignment until after the parties' marriage. She claimed her discovery of that fact prompted her refusal to consummate the marriage. However, the court "found [Alex's] testimony more credible that [Sawsan] was informed of the reassignment before the marriage."
The court then explained why it concluded Alex was more credible on the point, stating that although "there were instances where [Alex's] credibility was suspect[,] his position on this issue never wavered. It was a fact not easily concealed and one which [Alex] seemed—just the opposite—eager to reveal. [Alex]'s reassignment was something in which he took apparent pride. As he testified, he enlisted [Sawsan]'s help in her official capacity with the Palestinian Authority to obtain a modification of his passport to reflect his new gender. In so doing, he embarked on a process of securing some form of official government acknowledgment of this transformation. This was a process that he could not control and which to some extent was 'public.' . . . [¶] Given, the difficult path [Alex] undertook, the public process he was willing to participate in to secure a passport amendment, the large circle of persons who would of necessity know of his reassignment and the inevitable revelations that would attend familial and intimate relations, the evidence was clear and convincing to the Court that [Sawsan] ultimately knew of [Alex]'s gender reassignment before the marriage."
Because the court disbelieved Sawsan's claim that she had been unaware of Alex's gender reassignment before the marriage, it concluded that her reliance on that fact as a justification for later "refusing to proceed with the religious ceremony which for [her] was a necessary precursor to complete marital relations" strongly "support[ed] the inference that [Sawsan] never intended to have sexual relations with [Alex] and was never prepared to fully embrace marital relations with [him]."
Consequently, the court concluded Alex was entitled to a judgment of nullity based on fraud.
DISCUSSION
1. Background Law and Standard of Review
Family Code section 2210 (§ 2210) governs actions for nullity of marriage. It states that "[a] marriage is voidable and may be adjudged a nullity" if certain conditions existed at the time of the marriage. Those conditions include: (1) where one or both parties were minors and did not have the consent of a parent to marry (§ 2210, subd. (a)); (2) bigamy (§ 2210, subd. (b)); (3) where one party is of unsound mind (§ 2210, subd. (c)); (4) where the consent of either party was obtained by fraud (§ 2210, subd. (d)); (5) or by force (§ 2210, subd. (e)); and (6) where either party was physically incapable of entering into the marriage, and the incapacity appears incurable (§ 2210, subd. (f)).
"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. [Citation.] 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." (In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 757, disapproved of on another ground in Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1126, 1128, fn. 12.) "[A]nnulments on the basis of fraud are generally granted only in cases where the fraud related in some way to the sexual or procreative aspects of marriage." (In re Marriage of Meagher & Maleki (2005) 131 Cal.App.4th 1, 7.)
Similarly, the provision permitting annulment of marriage for physical incapacity to enter into the marital state means a physical incapacity to consummate the marriage, or legal impotence. (Stepanek v. Stepanek (1961) 193 Cal.App.2d 760, 762.)
Where, as in this case, the facts are disputed, "review of a judgment of nullity is under the substantial evidence standard." (In re Marriage of Seaton (2011) 200 Cal.App.4th 800, 806.) Applying that standard means "the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d. 870, 873-874.)
2. Evidence Supporting Conclusion that the Parties Never Consummated the Marriage
Sawsan's first contention is that the evidence is insufficient to support the trial court's conclusion that the parties never consummated their marriage. We disagree and find the assertion baffling in light of the initial pleading filed by Sawsan and many of her statements at trial.
As the trial court pointed out, Sawsan herself claimed at every point in the litigation that the marriage had not been consummated. She said so unequivocally during her own testimony. Under the substantial evidence test, Sawsan's testimony, no matter how extensively it might have been contradicted by other evidence, is sufficient by itself to support the trial court's finding. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 ["Even when there is a significant amount of countervailing evidence, the testimony of a single witness . . . is sufficient to uphold the finding"].)
Sawsan seems to suggest, without actually saying it, that her own testimony should not be viewed as "reasonable, credible evidence of solid value" (see Barnwell, supra, 41 Cal.4th at p. 1052) because she gave it under "significant pressure from the court." That contention finds no support in the record. The trial court did nothing more than ask Sawsan to confirm that the statements included in her trial brief were correct, which she did more than once. When the trial court asked Sawsan follow-up questions regarding her reasons for not consummating the marriage, she explained her reasons. It would be difficult to conjure up a record which is less susceptible to the allegation that Sawsan was pressured into giving false testimony. We consequently reject it.
3. Evidence Supporting Conclusion that Sawsan Never Intended to Consummate Marriage
Sawsan also contends the evidence was insufficient to support the court's conclusion she did not intend to consummate the marriage at the time she entered into the marriage contract. Again, we cannot agree.
Sawsan acknowledges the court's conclusion rested on its finding that her "declared reason for wanting to end the marriage, [Alex]'s gender reassignment, was known to [her] before the marriage." She then argues that "[t]o come to this conclusion the court invented, whole cloth, new facts that can be found nowhere in the record, and cannot be reasonably inferred therefrom." Not so.
The court's conclusion that Sawsan knew of Alex's gender reassignment before the wedding was based on Alex's direct testimony. Alex testified that his initial contact with Sawsan had been for the specific purpose of getting her assistance to change the gender identity on his passport, and thus she had been aware of his gender reassignment from their first contact. This testimony, which the court found credible, was sufficient to support the court's finding on this issue.
In arguing the court relied on "invented" facts to support its conclusion, Sawsan points to the court's reasoning for concluding Alex's testimony was more credible than hers on this point, i.e., that Alex's gender reassignment was something he was proud of and was eager to reveal, that he was willing to embark on a somewhat public process to document it on his passport, and that it would have been nearly impossible to conceal. It is those facts which Sawsan contends are unsupported by the record.
But we do not review credibility determinations. (People v. Lindberg (2008) 45 Cal.4th 1, 27 ["A reviewing court neither reweighs evidence nor reevaluates a witness's credibility"].) Thus, "even testimony which is subject to justifiable suspicion do[es] not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another ground by People v. Burton (1961) 55 Cal.2d 328, 352.)
Indeed, "'[t]o warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.' [Citation.] Such cases are rare indeed." (DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, 261.) This is not that rare case. Alex's testimony about when Sawsan first learned of his gender reassignment was neither physically impossible nor patently false.
We cannot review the trial court's determination that Alex was more credible than Sawsan on the issue of when she learned about his gender reassignment. We therefore need not consider the trial court's reasons for that determination. Indeed, the court was not even required to reveal its reasons. We reject Sawsan's attempt to challenge the finding.
DISPOSITION
Having concluded the evidence is sufficient to support the trial court's determinations that the parties never consummated their marriage, and that Sawsan did not intend to consummate it at the time the parties entered into the marriage, we affirm the judgment which concludes the marriage is a nullity on the ground of fraud. Alex is entitled to his costs on appeal.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.