Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 113606
McGuiness, P.J.
At the time of their marriage in 1997, decedent Frank P. Dito was 94 and respondent Elenice S. Dito was 28. Elenice, a Brazilian citizen who had overstayed her visa by the time of the marriage, had performed housework and acted as a caregiver for Frank and his previous wife, who died in 1995. Following Frank’s death in 2004, a dispute arose regarding the legality of Frank’s marriage to Elenice and the validity of a prenuptial agreement between them. The trial court ruled in favor of Elenice.
To avoid confusion, where appropriate we use the first names of family members who share a common surname. We intend no disrespect by this informality. (Warfield v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 445, fn. 1.)
On appeal, Frank’s grandson, appellant Terrence Merritt, claims the marriage between Frank and Elenice was void because it was entered into for the sole purpose of allowing an illegal immigrant to remain in the United States. He further contends the prenuptial agreement is valid and should be given effect.
We conclude Terrence lacks standing to challenge the validity of his grandfather’s marriage to Elenice on the ground it was entered into solely for immigration purposes. We also conclude the prenuptial agreement was unconscionable when executed and that the agreement’s disclosure of Frank’s assets was legally inadequate. Accordingly, we affirm the judgment.
Factual and Procedural History
Elenice was born in Brazil in 1968. After working for two years as a housekeeper for the da Silva family in Brazil, she accompanied the family in the early 1990’s when they relocated to the United States, where she continued her work as the family’s housekeeper. At the time she came to the United States, Elenice spoke Portuguese but did not speak English. Mr. da Silva, who worked for the Brazilian consulate in San Francisco, obtained an “A-3” working visa for Elenice, which allowed her to remain in the United States as long as she worked for the da Silvas.
After she had been in the United States for about a year and a half, Elenice left the da Silva family as a result of physical abuse she claims to have suffered while employed by them. Through contacts at her church, Elenice was introduced to Frank Dito and his wife, Rosana, in late 1994 or early 1995. Elenice began working for Frank and Rosana as a live-in housekeeper at their condominium in Burlingame. The couple were elderly and physically impaired when Elenice began working for them, and part of her job was to look out for their physical well being. She was paid $700 a month. It is undisputed that Elenice’s visa did not permit her to work legally for the Ditos.
Frank and Rosana had one child, Barbara Merritt, who is married to George Merritt. Barbara and George Merritt have two children, Gerilynn Merritt and appellant Terrence Merritt. Barbara became trustee of her parents’ living trust before Rosana died and remained sole trustee until her father died.
Rosana Dito died in December 1995. After Rosana’s death, Elenice continued to work for and live with Frank Dito. Barbara Merritt, Frank’s only child, supported the continuation of Elenice’s paid care for Frank. Elenice became an integral part of the support system that permitted Frank to continue to live in his own residence despite his physical limitations.
As of 1996, Frank was hard-of-hearing, had impaired vision, and was confined to a wheelchair.
At some point in 1997, Frank and Elenice began discussing marriage as an option. Frank proposed to Elenice about six months before they were actually married. At the time, Elenice responded by saying she would think about it.
Frank and Elenice were married on August 30, 1997. At the time of their marriage, Frank was 94 years old and Elenice was 28 years old. Frank’s daughter, Barbara, played a key role in the marriage. She drove Elenice and Frank to Redwood City to get a marriage license, and she hosted the wedding in her home. Appellant Terrence Merritt, Frank’s grandson, served in the wedding as Frank’s best man and signed the marriage license as a witness.
Reverend Yarnold performed the ceremony. He testified that Barbara asked him to perform the ceremony and told him that she “wanted her father to have happiness in the last years of his life.” When he was asked if Barbara was opposed to the wedding, Reverend Yarnold responded that Barbara gave every indication she was very happy about the wedding.
Despite their involvement in the wedding, Barbara and her family questioned Elenice’s motivation for marrying Frank. Frank’s granddaughter, Gerilynn, testified that Elenice told her she was terrified of going back to Brazil and that she was marrying Frank because she was concerned her immigration status was in jeopardy and that marriage seemed like the only viable solution for her. Terrence testified that Frank told him he was marrying Elenice because she was afraid of being deported and he wanted to keep her here so that she could take care of him. Elenice denied she was afraid of returning to Brazil.
Barbara testified that Frank never told her he loved Elenice, although she also testified that Elenice told her she loved Frank. Barbara acknowledged that she appreciated the marriage because it gave her freedom by having a caregiver for her father.
Barbara and George testified that Elenice continued to receive a salary after her marriage to Frank in payment for her services as a caregiver. It is Elenice’s assertion that she was not paid a salary during the marriage. Instead, she claimed the money she received periodically from Barbara—the sole trustee of Frank’s trust—was intended for her and Frank to spend on their household.
After Frank and Elenice were married, Barbara took Elenice to see attorney Robert Lewis, a Portuguese-speaking attorney who specializes in immigration and naturalization law. At the time of the consultation, there was no known deportation order against Elenice. A substantial portion of the initial consultation was devoted to discussing whether the Immigration and Naturalization Service (INS) would give Elenice a difficult time as a result of her age difference with Frank. Lewis told Elenice and Barbara it was not the INS’s place to inquire into the legitimacy of the marriage except to determine whether the marriage was recognized by state law and whether it was entered into for purposes of immigration. Lewis told them the INS would probably “take a good look at it.”
Lewis subsequently filed petitions with the INS so that Elenice could obtain a green card. According to Lewis, the person the INS sent to meet with Frank and Elenice at their home was part of what he described as the INS antifraud unit. During the visit at Frank’s and Elenice’s condominium, the INS investigator and a federal court employee who accompanied him asked questions and looked around the home. When Frank was asked why he married Elenice, his answer was, “Because I love her and I need her.” Five years after her marriage to Frank, Elenice eventually received her permanent residency status in 2002.
Lewis testified that Barbara told him her father “would die if Elenice couldn’t stay in the country with him.” Barbara told Lewis her father was “emotionally tied up” with Elenice and “so dependent on her.” According to Lewis, Barbara supported Elenice’s marriage in her appearances before the INS. Indeed, Barbara sent a letter to the INS in which she wrote the following: “A year and a half after my mother passed away, my father told me that he wanted to marry Elenice. It was hard to take him seriously. My husband and my two children didn’t like the idea. But as time went on and we went through the holidays and family gatherings together, it made us all feel good to see how happy my father was and how happy he and Elenice are together. . . . The big age difference between Elenice and my father has brought a lot of comments from our friends. But after observing the fullness of their life together, I would recommend getting married at any age.”
Barbara testified she believed that, at the time she wrote the letter to the INS, the marriage was in fact a sham and simply served to afford Elenice status as a permanent resident in this country. She said that what she wrote was not the truth and that the letter was intended for “[the INS’s] eyes only.”
Before they were married, Frank and Elenice entered into a prenuptial agreement. There is substantial disagreement surrounding the events leading up to the execution of the prenuptial agreement.
Elenice denied any involvement in the drafting of the prenuptial agreement. She testified that she signed a document she believed was a tax document. She stated that she and Frank accompanied Barbara to an office in downtown Burlingame. The notary refused to notarize the prenuptial agreement out of concern for Elenice’s lack of English-speaking ability. They were directed to a second notary, Lori Horn, in a nearby office, where the document was signed and notarized. Elenice testified that the signature on the prenuptial agreement is hers but that she had not been given any of the other pages of the document before being presented with the signature page to sign. She also claims she did not speak with a lawyer or anyone else about the agreement before signing it. Elenice claimed she was not given a copy of the prenuptial agreement after she signed it.
According to George Merritt, his father-in-law Frank asked him for help in preparing a prenuptial agreement. George testified that he had a conversation with attorneys a month before the wedding to see if either could prepare a prenuptial agreement. One of the attorneys recommended that George find an attorney to represent Elenice. George said he followed that advice.
George did not know the name of the attorney who drafted the prenuptial agreement and never took Frank to see an attorney in 1997. Instead, he claims to have spoken with a “lady lawyer” on the phone for two to three minutes or more, but did not get her name, address, or the law firm’s name. According to George, the attorney said that if he wanted a prenuptial agreement he was going to have to give Elenice $500 in cash to pay for it. The lawyer explained to George that she wanted Elenice to pay for the prenuptial agreement. George testified that he gave $500 in cash to Barbara, who in turn gave the money to Elenice. George said that Elenice never told him the name of the attorney, and he never asked.
Terrence testified that Barbara told him approximately two to four days before the wedding that she had not seen the prenuptial agreement but that it was supposed to be signed that day. Barbara did not tell Terrence who prepared it but said that she gave Elenice $500 to pay for an attorney to prepare the agreement. Elenice denied that anyone gave her cash to pay a lawyer to prepare a prenuptial agreement.
Barbara denied taking Elenice and Frank to a notary to sign the prenuptial agreement, testifying instead that the first time she saw the agreement was when her father gave it to her after his marriage to Elenice. However, George testified that Elenice took Frank to the notary and had him sign the prenuptial agreement. The notary, Lori Horton, testified she saw only two people in her office when the agreement was signed. One was an older man in a wheelchair and the other was a significantly younger woman.
Barbara said she never received a bill from an attorney regarding the prenuptial agreement. To Barbara’s knowledge, Frank did not have an attorney represent him in connection with the prenuptial agreement.
Barbara believed the prenuptial agreement was prepared by Patricia Hempey, whom she believed was an attorney and a friend of Elenice. Hempey, who graduated from law school but had never practiced law, testified she did not prepare the prenuptial agreement and denied ever talking to George or Barbara about a prenuptial agreement.
The prenuptial agreement was signed and notarized on August 27, 1997, three days before the wedding. Pages six and seven of the 11-page agreement contain a disclosure of Frank’s assets. An itemization on page seven of the agreement contains a description and valuation of Frank’s bank account, personal property, and insurance policies, but the itemization does not list any brokerage or investment accounts. On page nine of the agreement, however, the parties agree that “accounts at Dean Witter Reynolds, Account #118-63049” would remain the sole and separate property of Frank. No such accounts are identified on the two pages disclosing Frank’s assets, and nowhere in the document is any value given for the brokerage accounts. In addition, with respect to “other real estate,” the agreement lists two properties in Redwood City, and refers to a “lease option” next to the properties’ estimated value. A cryptic note below the entry reflects a $750 per month deduction from each lease payment toward a future option price, but no other information or explanation is offered with respect to the lease option.
Elenice testified that she knew at the time of their marriage that Frank owned the condominium in which they lived. She also knew either before or after the marriage that Frank owned several apartment houses, but she did not know how much money Frank had in the bank and did not know whether Frank owned anything else. She did not know Frank had a Dean Witter brokerage account. Tax returns filed for Elenice and Frank in tax years 1998, 1999, and 2000 disclose that Frank sold over $250,000 in stocks, bonds, and other securities during those years, suggesting he had substantial holdings in his brokerage account at the time of his marriage to Elenice.
Elenice claims the tax returns show that Frank received sales proceeds exceeding $300,000 during those years. Because the parties have not transmitted the trial exhibits to this court, we cannot confirm that amount but instead must rely upon the amount established by Barbara’s testimony.
The prenuptial agreement provides that both parties waive their right to alimony, maintenance, or spousal support in the event of divorce, death, or dissolution of marriage. In the event of Frank’s death, however, Elenice would be permitted to remain in the family residence for six months with the living expenses during that time paid for by Frank’s estate. The agreement further provides that, in the event of divorce, death, or dissolution of the marriage, any marital property acquired during their marriage would be the exclusive property of Barbara Merritt or her legal heirs. Elenice testified that no one told her that all their marital property would go to Barbara.
Frank died in December 2004. Elenice filed a petition for letters of administration on February 25, 2005, in the San Mateo County Superior Court. On March 28, 2005, Barbara Merritt filed a competing petition to administer Frank’s estate and to admit his will to probate. Barbara attached to her petition a pour-over will executed by Frank on June 22, 1994. The will identifies Rosana as Frank’s wife and directs that the residue of his estate be given upon his death to the trustee of the “Frank P. Dito and Rosana M. Dito Revocable Trust.” The will does not mention Elenice.
On July 15, 2005, Terrence Merritt filed a petition to administer Frank’s estate and to admit Frank’s will to probate. Barbara withdrew her petition to administer Frank’s estate in favor of her son, Terrence.
On October 21, 2005, Elenice filed a petition seeking, among other things, her share of Frank’s estate as an omitted spouse, a determination that the prenuptial agreement is unenforceable, and a determination that the surviving spouse’s waiver in the prenuptial agreement is unenforceable. Upon stipulation of the parties, the trial court ordered the issues raised by the competing petitions bifurcated so that the following issues could be tried before all other issues in the case: (1) whether Elenice is the surviving spouse of Frank and is entitled to receive a share of his estate pursuant to Probate Code section 21610 et seq.; (2) whether the prenuptial agreement dated August 27, 1997, is enforceable; and (3) whether the surviving spouse’s waiver contained in the prenuptial agreement is enforceable.
On March 27, 2006, a bench trial commenced on the three issues identified in the bifurcation order. The trial continued on and off until its conclusion on July 21, 2006, when the court heard argument and took the matter under submission.
In a judgment filed December 8, 2006, the court ruled that Elenice is the surviving spouse of Frank and is entitled to receive a share of his estate. The court further ruled that the prenuptial agreement dated August 27, 1997, is invalid and unenforceable. For the same reasons it found the prenuptial agreement invalid, the court ruled that the spousal waiver contained in the agreement was likewise invalid.
With regard to the validity of the marriage, the trial court concluded “[t]here is no indication that either party was coerced into marriage or that either sought to defraud the other.” The court held that Barbara was equitably estopped from challenging the validity of the marriage in light of her conduct in arranging the marriage, her statements to third parties affirming the validity of the marriage, her correspondence with the INS, and her statements to attorney Lewis. Characterizing appellant Terrence Merritt as a “figurehead” in this matter for his mother, Barbara, the court held the principle of estoppel applied equally to Terrence.
The trial court noted that the prenuptial agreement leaves everything to Barbara, does not contain any description of certain Dean Witter accounts, and includes two different pages marked “page 6 of 11,” which each contain the same information regarding Frank’s real estate assets but have different captions. Although the court found that Elenice had voluntarily executed the agreement, it also found that the agreement was unconscionable. Among other things, the court rejected the theory espoused by Terrence that Elenice had prepared the agreement herself with the assistance of a friend who had a law school background.
Terrence filed a timely notice of appeal from the judgment.
Discussion
Validity of an Immigration-Motivated Marriage
Terrence challenges the trial court’s finding that Elenice is the surviving spouse of Frank, contending their marriage was invalid. He argues their marriage was void because its sole object was to allow an illegal immigrant caregiver to remain in the United States. He also contends Frank was physically incapable of entering into the marriage state, that Elenice used her unique position with Frank to defraud him into believing she would be in physical danger if she returned to Brazil, and that Elenice was at most a caregiver but not a wife.
Terrence’s contentions require us to consider the circumstances under which one may attack the validity of a marriage after the death of one of the spouses. Under California law, marriages that are invalid, or that may be declared a nullity by a court, fall into two categories—void marriages and voidable marriages. (See Fam. Code, § 2200 et seq.; Estate of Karau (1938) 26 Cal.App.2d 606, 607.) A void marriage is one that is invalid for all purposes from the moment of its inception, whether or not it has been so declared in a court of law. (Estate of Karau, supra, 26 Cal.App.2d at p. 607.) It is treated as if it never existed and its invalidity may be shown collaterally in any proceeding where it becomes an issue, either before or after the death of one or both of the spouses. (Ibid.) On the other hand, a voidable marriage is valid for all purposes until a party entitled to assert its voidability timely raises the issue. (Id. at pp. 607-609; Estate of Gregorson (1911) 160 Cal. 21, 27-28.)
All further statutory references are to the Family Code unless otherwise specified.
Sections 2200 and 2201 establish that a marriage is void if it is incestuous, bigamous, or polygamous. Section 2210 provides that a marriage is voidable if it is one in which a party lacked capacity to consent due to youth or unsoundness of mind, a party’s consent was obtained by fraud or force, either party was physically incapable of entering into a marriage state, or the husband or wife has a living spouse from a prior marriage who has been absent five years or more and was believed to be dead at the time of the subsequent marriage.
A marriage may be invalid for reasons other than those enumerated in sections 2200, 2201, and 2210. (Estate of DePasse (2002) 97 Cal.App.4th 92, 106.) For example, sections 300 and 306, which are found in part 1 of division 3 of the Family Code, entitled “Validity of Marriage,” list a number of requirements for a valid marriage in California. (Estate of DePasse, supra, 97 Cal.App.4th at p. 106.) These requirements include issuance of a license, solemnization, authentication, and return of the authenticated marriage license to the county recorder. (§§ 300, 306.) Failure to comply with the requirements of sections 300 and 306 renders a marriage void. (See Estate of DePasse, supra, 97 Cal.App.4th at p. 107 [failure to obtain marriage license rendered marriage invalid]; see also Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1116 [same-sex marriages were “void and invalid” because Legislature made clear in section 300 that marriage is between a man and a woman].)
There is no contention here that the marriage between Frank and Elenice was invalid for failure to comply with any of the requirements in part 1 of division 3 of the Family Code.
Whereas a void marriage is subject to collateral attack in any proceeding in which the fact of marriage may be material, the same is not true of voidable marriages. (Estate of Gregorson, supra, 160 Cal. at pp. 26-27.) The only manner of annulling a voidable marriage is through the procedure specified by statute. (Id. at p. 26.) “If the parties who are alone recognized by the statutes as entitled to have the marriage annulled do not, during its existence, see fit to avoid it, a stranger to the marriage should not be permitted to question its validity in a collateral proceeding. . . . If the consent of either party had been obtained by fraud or force, or if one of the parties had been physically incapable of entering into the marriage state, no one would contend that in the absence of complaint by the injured party the validity of the marriage could be disputed collaterally.” (Id. at pp. 26-27.)
Therefore, a stranger to a marriage would have standing to seek a declaration that a statutorily void marriage is invalid in an action where the fact of marriage had some bearing upon the stranger’s interests. But that same person would not have standing to invalidate a marriage that is merely voidable unless the person had standing to do so under section 2211, which sets forth who may initiate a proceeding to obtain a judgment of nullity and the time periods within which such actions must be filed. In the case of fraud, an action to nullify the marriage must be brought by the party whose consent was obtained by fraud within four years after the discovery of the facts constituting the fraud. (§ 2211, subd. (d).) Similarly, an action to nullify a marriage on the basis of force must be brought by the person whose consent was obtained by force within four years after the marriage. (§ 2211, subd. (e).) An action to nullify a marriage on the ground either party was physically and incurably incapable of entering into the marriage state at the time of marriage must be brought by the “injured party” within four years after the marriage. (§ 2211, subd. (f).) In certain situations not relevant here, an action to nullify a marriage may be brought by persons other than a spouse, such as a conservator, a parent, a relative, or a former spouse. (§ 2211, subds. (a)(2), (b), & (c).)
This ground for nullity is limited in scope. “By physical incapacity is meant the physical incapacity to consummate the marriage by coition [citation], or legal impotence. The law’s test is simply the ability or inability for copulation, not fruitfulness [citations].” (Stepanek v. Stepanek (1961) 193 Cal.App.2d 760, 762.)
The consequence of the distinction between voidable and void marriages allows us to dismiss most of Terrence’s arguments for invalidating the marriage between Frank and Elenice. Terrence has no standing to pursue an annulment based on fraud or force, because such causes of action must be brought by the person whose consent to marry was obtained by fraud or force. (§ 2211, subds. (d) & (e).) Likewise, even assuming Terrence could establish, based on the record below, that Frank lacked the physical capacity to enter in the marriage state, only the injured party (i.e., Elenice) could bring an action to nullify the marriage on that basis. (§ 2211, subd. (f).) With regard to Terrence’s contention that Elenice was a caregiver and not a wife, a claim premised on the argument that Elenice received a salary for her services and was at all times no more than an employee of Frank, we fail to see how such a claim establishes that the marriage was either void or voidable. Terrence has offered no authority to support his claim that a marriage may be invalidated on that basis.
Because Terrence lacks standing to claim the marriage should be annulled on the ground it was fraudulently induced, we need not consider his contention that Elenice misled Frank into believing she would suffer harm if she were forced to return to Brazil. For a similar reason, we deny Terrence’s “motion augmenting the record,” which we construe as a request for judicial notice, in which Terrence asks us to consider a document retrieved from INS files that purportedly confirms Elenice told the INS she feared returning to Brazil. In light of our conclusion on standing, the document is irrelevant to our determination. In any event, the document was not before the trial court, it constitutes hearsay, and Terrence has offered no reason why it should be considered under some exception to the hearsay rule.
Contrary to Terrence’s suggestion otherwise, there is no requirement that spouses must consummate a marriage in order for it to be valid. If a spouse is unable or unwilling to consummate the marriage, the marriage is voidable but not void. In such a case, the complaining spouse may seek to annul the marriage either on the ground the other spouse lacks the physical capacity to enter into the marriage state, or on the ground the consent to marry was secured by fraud. (§ 2210, subds. (d) & (f).) Absent an action to nullify the marriage, however, it remains valid notwithstanding the failure to consummate the marriage.
We are mindful that some causes of action survive a person’s death and may be asserted by the decedent’s successor in interest or personal representative. (Code Civ. Proc., §§ 377.20, 377.30.) This principle does not aid Terrence. The proper party to pursue a nullification action following a spouse’s death is the decedent’s personal representative or successor in interest. (Code Civ. Proc., § 337.30; see Shaub v. Schaub (1945) 71 Cal.App.2d 467, 469-470 [administrator of estate substituted for decedent who died during pendency of action to nullify marriage on ground of fraud].) Here, there is no indication in the record that the trial court appointed Terrence as the personal representative of Frank’s estate, and Terrence does not assert his claims in that capacity. As a stranger to the marriage, he lacks standing to seek to nullify the marriage on grounds that only his grandfather could have asserted.
At oral argument, Terrence’s counsel conceded he was unaware of any court order appointing Terrence as Frank’s personal representative. Even if Terrence had been appointed as personal representative, his claims would still fail. A personal representative may pursue a pending nullity action filed before a spouse’s death. (In re Marriage of Goldberg (1994) 22 Cal.App.4th 265, 276.) In such a case the action survives and is not abated upon the spouse’s death. In this case, because Frank had not initiated a nullification proceeding before his death, there was no pending action for his personal representative to pursue.
The question remains whether an immigration-motivated marriage is void or simply voidable under California law. As support for his argument the marriage is void, Terrence cites Civil Code section 1550, which provides that a valid contract must have a “lawful object.” His contention appears to be that a marriage entered into for the purpose of preventing one spouse from being deported is invalid under California law because its purpose is illegal. He offers no authority for this proposition other than his citation to Civil Code section 1550. Indeed, we are not aware of any statutory or case law support in California for the proposition that an immigration-motivated marriage is considered illegal or void ab initio under state law. To the contrary, it has been held that “the act of an alien in entering into a marriage with the express purpose to avoid deportation is not necessarily illegal. [Citation.]” (Lamberti v. Lamberti (1969) 272 Cal.App.2d 482, 485.) Further, even if a marriage is a sham for purposes of federal immigration law, that does not necessarily mean it is void for state law purposes. (See Ponce-Gonzalez v. I.N.S. (5th Cir. 1985) 775 F.2d 1342, 1347, fn. 7.)
Civil Code section 1550 provides: “It is essential to the existence of a contract that there should be: [¶] 1. Parties capable of contracting; [¶] 2. Their consent; [¶] 3. A lawful object; and, [¶] 4. A sufficient cause or consideration.”
The Legislature did not include immigration-motivated marriages among those it deemed void. (§§ 2200, 2201.) Further, there is nothing in the Family Code specifying that a valid marriage must be motivated by reasons other than immigration purposes. (See § 300 et seq.) Thus, we find no specific statutory basis to suggest an immigration-motivated marriage is void. In this regard, it is well settled the Legislature has full control of the subject of marriage and may fix the conditions under which the marital status may be created or terminated, subject to constitutional limitations. (Lockyer v. City and County of San Francisco, supra, 33 Cal.4th at p. 1074.) Where, as here, the Legislature has specifically enumerated the requirements of a valid marriage and the conditions under which a marriage is deemed to be void, the omission of a sham immigration marriage from the list of void marriages may be construed as intentional. (See People v. Romero (1985) 167 Cal.App.3d 1148, 1156 [under principle of expressio unius est exclusio alterius, the expression of certain things in a statute necessarily involves exclusion of other things not expressed].) Further, “[i]n view of the policy of the law to promote and protect the marriage relationship,” courts have been reluctant to hold that the Legislature “meant to declare by inference” additional grounds upon which a marriage may be found void. (Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 204 Cal.App.2d 805, 810.)
To the extent reported California decisions address the validity of marriages entered into solely for immigration purposes, the issue arises in cases in which one spouse seeks to annul a voidable marriage on the ground his or consent to marry was obtained by fraud. (See In re Marriage of Liu (1987) 197 Cal.App.3d 143, 155-156; In re Marriage of Rabie (1974) 40 Cal.App.3d 917, 921-922; Lamberti v. Lamberti, supra, 272 Cal.App.2d at pp. 485-486.) In other words, California courts have treated immigration-motivated marriages as voidable under section 2210 (or its predecessor statute) on the ground of fraud. As with any other annulment action founded upon an allegation of fraud, the action must be brought by the party whose consent was obtained by fraud. (§ 2211, subd. (d).)
For these reasons, we conclude that an immigration-motivated marriage is voidable but not void. The Legislature has not seen fit to include immigration-motivated marriages among those considered void, and the courts of this state have treated such marriages as voidable at the election of the spouse whose consent to marry is obtained by fraud. Terrence lacks standing to challenge the marriage of Frank and Elenice on the ground it was motivated solely for immigration purposes because he is not the person whose consent to marry was allegedly obtained by fraud. (§ 2210, subd. (d).) Accordingly, the trial court did not err in concluding that the marriage between Elenice and Frank was valid and that Elenice is the surviving spouse of Frank.
Applying Utah law, the Utah Court of Appeals reached a similar conclusion in In re Marriage of Kunz (Utah App. 2006) 136 P.3d 1278, 1288. There, the court held that an immigration-motivated marriage was merely voidable but not void under Utah law, and that a wife’s failure to challenge the validity of the marriage during her husband’s lifetime precluded her from doing so after his death. (Ibid.)
Ordinarily, we review a decision granting or denying an annulment request under the substantial evidence standard of review. (In re Marriage of Liu, supra, 197 Cal.App.3d at pp. 155-156.) However, our review of purely legal questions is de novo. (City of Santa Cruz v. Patel (2007) 155 Cal.App.4th 234, 243.) Here, we need not reach the merits of the request to invalidate the marriage because we conclude, as a matter of law, that Terrence lacks standing to challenge the validity of the marriage on the grounds he has raised. Our conclusion results from the application of the law to undisputed procedural facts.
We do not suggest the outcome would be different if Terrence had standing to pursue his claims seeking to invalidate the marriage. There is ample evidence to indicate the marriage was not entered into solely for immigration purposes. Among other things, Frank and Elenice lived together for seven years after they were married. She did not leave him even after she obtained her green card. Frank told his family he needed Elenice and did not want to see her leave. Elenice told people she loved Frank. The INS apparently did not believe the marriage was a sham, because it granted Elenice permanent resident status after conducting an investigation. And, we are mindful the trial court found that Barbara Merritt lacked credibility, concluding she was equitably estopped from asserting the marriage was a sham after she had played such an active and public role in supporting the marriage. In this connection, we reject Terrence’s lead argument in his opening brief in which he claims that Elenice “lost her credibility at trial.” As a reviewing court, we defer to the trial court on issues of credibility. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 213.) In sum, there is substantial evidence supporting the trial court’s conclusion that neither party was coerced into the marriage or sought to defraud the other.
Finally, we note that the trial court did not address the standing issue but instead decided the issue of the marriage’s validity on its merits. The trial court’s reasoning for its decision is immaterial because we review the result, not the court’s rationale. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1494.) Further, it is of no moment that the issue of Terrence’s standing was not raised below. The issue of standing is jurisdictional and therefore may be raised at any time in the proceedings, including on appeal. (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 813; Waste Management of Alameda County v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232.) Elenice raised the issue of Terrence’s standing to invalidate the marriage, and the parties have had an opportunity to brief the issue because it is fairly included within the issues raised on appeal. (See People v. Alice (2007) 41 Cal.4th 668, 677.)
Validity of the Prenuptial Agreement
In a section of his opening brief entitled, “Voiding Out the Prenuptial Agreement,” Terrence devotes ten sentences in four brief paragraphs to the issue of whether the trial court erred in declaring the prenuptial agreement between Frank and Elenice invalid. His discussion of the prenuptial agreement contains no citations to the record and just one legal citation, a passing reference to former section 1516, which he contends was the basis for the trial court’s decision invalidating the prenuptial agreement. In fact, while the trial court did reference “former section 1516” in its judgment, that was an obvious typographical error because there has never been a section 1516 in the Family Code, as far as we are aware. Instead, section 1615 is the relevant statute, as the court acknowledged elsewhere in its judgment.
As we understand Terrence’s position, he contends the trial court’s analysis of the prenuptial agreement fails to appreciate the “insidious purpose” that Elenice had from the start to invalidate the agreement. He asserts her claimed inability to understand English was an indicator of her “obstructionism.” Acknowledging that the agreement has various irregularities and apparently conceding how harsh the terms of the agreement were with respect to Elenice, Terrence goes so far as to suggest that she engineered the invalidity of the agreement from the outset.
An appellate court may treat as waived any issue that, although raised in the briefs, is not supported by a cogent argument or legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) Here, Terrence has failed to cite any legal authority in support of his position. Although he cites “former section 1516” as the basis for the trial court’s decision, he does not rely on that statute or indicate it supports his position. Instead, the sum and substance of his argument is that Elenice had a grand scheme to devise a prenuptial agreement that was so unconscionable and unfavorable to her that it would ultimately be found invalid. While this may qualify as “argument,” without proper citations to the record we cannot assess the veracity of the claim. We are not required to make an independent search of the voluminous record in this case and may disregard claims where no reference is furnished. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
Our review is further hampered by Terrence’s failure to transmit relevant trial exhibits to this court. Obviously, in order for us to assess the validity of the prenuptial agreement, it is necessary to review its terms and any other pertinent trial exhibits that might bear upon the question of its enforceability. It is axiomatic that a judgment is presumed correct and that a party challenging a judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) Rule 8.224(a)(1) of the California Rules of Court requires that “[w]ithin 10 days after the last respondent’s brief is filed or could be filed under rule 8.220, a party wanting the reviewing court to consider any original exhibits that were admitted in evidence, refused, or lodged . . . must serve and file a notice in superior court designating such exhibits.” (Italics added.) The clerk of the superior court then transmits the exhibits to the reviewing court. (Cal. Rules of Court, rule 8.224(b).) There is no indication that Terrence filed the required notice or otherwise included relevant trial exhibits in the clerk’s transcript. We may assume that Terrence has abandoned any contentions based on exhibits he has failed to transmit to this court. (Brown v. Copp (1951) 105 Cal.App.2d 1, 8-9.)
A copy of the prenuptial agreement is included in the clerk’s transcript as an attachment to a pleading, but we have no way of confirming that it is in all respects the same as the document received into evidence at trial. We know it is different in one significant respect. The document received into evidence at trial had two pages numbered page 6, a relevant fact considering that page 6 discloses the extent of Frank’s real estate assets. By contrast, the document in the clerk’s transcript contains a single page 6.
In light of the inadequacy of the briefing, the lack of legal authority, the absence of factual citations, and Terrence’s failure to transmit relevant trial exhibits to this court, we would be justified in deeming his contentions with respect to the prenuptial agreement waived. However, to avoid suggesting Terrence’s claims would have had merit but for the inadequate manner in which they were presented to this court, we will briefly address why we find no error in the trial court’s conclusion that the prenuptial agreement is invalid.
At the time Frank and Elenice entered into the prenuptial agreement in 1997, former section 1615, enacted in 1992 (hereafter “former section 1615”), governed the enforceability of premarital agreements. (Former § 1615, added by Stats. 1992, ch. 162, § 10, pp. 500-501.) Former section 1615 provides as follows: “(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following: [¶] (1) That party did not execute the agreement voluntarily. [¶] (2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party: [¶] (A) That party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party. [¶] (B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. [¶] (C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. [¶] (b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.”
Section 1615 was amended effective January 1, 2002. (Stats. 2001, ch. 286, § 2.) Because there is no indication the changes in the statute were intended to apply retroactively, we apply the version of section 1615 in effect when Frank and Elenice entered into their prenuptial agreement. (See generally McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 474 [discussing presumption against statutory retroactivity].)
Under former section 1615, a premarital agreement could be found unenforceable either because it was not entered into voluntarily or because it was unconscionable and there were inadequate asset or obligation disclosures. The trial court found the agreement was entered into voluntarily but nevertheless found it was invalid under the unconscionability prong of former section 1615. The court stated: “There is no evidence that Elenice did not voluntarily execute the prenuptial. In fact, the testimony of [notary] Lori Horn is quite the opposite. Regarding unconscionability, however, the finding must be against [Terrence].” Among other things, the court found that the prenuptial agreement left everything to Barbara in the event of Frank’s death or dissolution of the marriage. It did not contain a description or valuation of Frank’s Dean Witter accounts, and it had two pages identified as “page 6 of 11.” Elenice testified that she was unaware of the contents of the prenuptial agreement before signing it. The court found there was no way that Elenice could have had access to Frank’s asset information, which was required to be listed in the document. Elenice testified that she was not represented by counsel before signing the prenuptial agreement. The court found unreliable the testimony to the contrary suggesting Elenice drafted the agreement with the aid of counsel, pointing out that the terms of the prenuptial agreement benefited Barbara exclusively and that the document contained information about Frank’s assets that would have been unavailable to Elenice. The court also found the prenuptial agreement lacked any explicit acknowledgment and waiver of rights as required by the Family Code.
A claim that an agreement is unconscionable entails both procedural and substantive elements. (American Software, Inc. v. Ali (1996) 46 Cal.App.4th 1386, 1390.) “Substantive unconscionability focuses on the actual terms of the agreement, while procedural unconscionability focuses on the manner in which the contract was negotiated and the circumstances of the parties. California courts generally require a showing of both procedural and substantive unconscionability at the time the contract was made. [Citation.]” (Ibid.) The procedural element focuses on oppression or surprise, whereas the substantive element focuses on whether the terms are overly one-sided or harsh. (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 87-88.) Unconscionability is a question of law for the court. (Id. at p. 89; former § 1615, subd. (b).) However, “[w]here the trial court’s determination of unconscionability is based upon the trial court’s resolution of conflicts in the evidence, or on the factual inferences which may be drawn therefrom, we consider the evidence in the light most favorable to the court’s determination and review those aspects of the determination for substantial evidence. [Citations.]” (Gutierrez v. Autowest, Inc., supra, 114 Cal.App.4th at p. 89 .)
Here, there is ample reason to conclude the prenuptial agreement is both substantively and procedurally unconscionable. Substantively, it is one-sided, leaving substantially everything to Barbara and almost nothing to Elenice, aside from the right to remain in the family residence for six months after Frank’s death. The agreement does not allow for even a minimal level of spousal support in the event of divorce or dissolution, despite the fact Elenice apparently had little or no money and a limited ability to provide for herself. Indeed, the agreement even provides that Barbara would receive all of the couple’s marital property. Procedurally, there is evidence to show that Elenice was unrepresented at the time she signed the document and that she was unaware of what she was signing. Taken together, these facts support a finding of unconscionability as a matter of law. Further, there is evidence to support each of the court’s findings that inadequate disclosures were made to Elenice in connection with the prenuptial agreement. The agreement did not contain a fair and reasonable disclosure of Frank’s assets. (Former § 1615, subd. (a)(2)(A).) There is no evidence Elenice waived her right to disclosure, and the evidence supported the conclusion Elenice did not have adequate knowledge of Frank’s assets at the time of the agreement. (Id., subd. (a)(2)(B) & (C).)
Terrence’s factual contentions do not undermine the basis for the trial court’s conclusion. He argues that Frank’s family paid $500 for Elenice to find a lawyer to prepare the prenuptial agreement, implying that Elenice found a lawyer who would conspire with her to concoct an invalid agreement. The trial court specifically rejected the testimony that Elenice secured legal representation, relying on Elenice’s statement that she was unrepresented as well as the testimony of an acquaintance of Elenice whom Barbara believed had drafted the agreement. Further, the court did not find credible the testimony that Elenice was represented and observed that the prenuptial agreement contained information Elenice could not have known, refuting the notion she prepared the agreement, either with or without the aid of counsel.
Terrence contends a notary testified that Elenice voluntarily executed the prenuptial agreement. This contention is beside the point because the trial court agreed that Elenice voluntarily entered into the agreement.
Terrence also challenges Elenice’s understanding of English, claiming she had checked out over 90 books from the Burlingame library. This claim, too, does not undermine the trial court’s findings, because the court did not rest its finding of unconscionability upon Elenice’s claimed difficulty communicating in English. Instead, the court noted there was considerable dispute concerning the extent of her English-speaking skills and that it was “not clear what her English speaking ability was at the time of the prenuptial.”
Terrence does not mention, much less challenge, the trial court’s findings regarding the inadequate disclosure of Frank’s assets at the time the parties entered in the prenuptial agreement. There is no dispute the agreement failed to disclose the value of Frank’s Dean Witter account, that Elenice did not waive her right to disclosure, and that Elenice had no reasonable means of knowing the extent of Frank’s assets before signing the prenuptial agreement.
Terrence’s factual contentions do not undercut the trial court’s finding that the prenuptial agreement was unconscionable. Furthermore, they are patently insufficient to support his sweeping conclusion that Elenice engineered the invalidity of the agreement from the outset. We conclude the trial court did not err in declaring the prenuptial agreement invalid and unenforceable under former section 1615.
Disposition
The judgment is affirmed. Respondent shall recover her costs on appeal.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.