Opinion
A156622
03-11-2020
In re the Marriage of F.S. and F.B.A. F.S., Respondent, v. F.B.A., Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HF17883685)
F.B.A. (husband) appeals from a judgment annulling his marriage to F.S. (wife) and awarding wife attorney fees.
We affirm the nullity judgment. We reverse the attorney fee award and remand for the court to exercise its discretion under Family Code section 2030, to make findings required by that statute, and to decide whether an award of attorney fees is warranted.
Statutory references are to the Family Code. Wife did not file a respondent's brief. We have decided the appeal on the record and the opening brief. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 333-334.) Husband appealed from the statement of decision, which is not an appealable order where a formal judgment follows. (See Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) We have augmented the record on our own motion with the June 3, 2019 judgment, and we treat husband's premature notice of appeal as having been timely filed after entry of the judgment. (Cal. Rules of Court, rule 8.104(d)(2); Conservatorship of Edde (2009) 173 Cal.App.4th 883, 889.)
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in 2014. In late 2017, wife petitioned for nullity on the basis of fraud. Husband responded, requesting marital dissolution.
Evidentiary Hearing
The parties are Pakistani Muslims. Wife lived in California. Husband lived in Pakistan. Their marriage was arranged: they met shortly before their marriage ceremony. A traditional Pakistani wedding has two parts: Nikah, a ceremony performed by the bride's family where the parties sign a marriage contract; and Walima, a ceremony performed by the husband's family where the husband "declares the woman as [his] wife to the world." When the parties married in Pakistan, the Nikah was performed, but not the Walima.
When they were married, husband told wife he wanted to have a family. Wife remained in Pakistan for more than a month after the wedding, but husband refused to let wife stay with him; he claimed they would "live together later." Husband did not want to spend time with wife; they socialized "only a couple [of] times" and did not have sexual intercourse. Husband promised to have sexual intercourse with wife when he moved to the United States.
Wife returned to the United States and applied for a spousal visa for husband. Husband stayed in Pakistan. Wife called and texted husband, but he often ignored her calls and delayed responding to her texts. Husband claimed he was "not good" at talking on the phone and promised he would get to know wife when they lived together. Wife offered to move to Pakistan, but husband forbade her.
Husband moved to the United States about two years later, after wife obtained the spousal visa. Wife suggested they stay at her apartment. Initially, husband declined, telling wife he wanted to stay in a hotel by himself. Wife convinced husband to live with her, but they did not sleep in the same bed. Husband told wife he would prefer to "live separate" and began looking for another residence. About five months later, husband moved out.
While they lived together, the parties had sexual intercourse about two times. Husband told wife he did not enjoy it and that he " 'never wanted' " to have sex with her. While he lived with wife, husband exchanged romantic messages with men on a dating app where he identified himself as homosexual and said he was "not interested" in women. When wife saw the messages, she was shocked. She believed husband lied to her about his sexuality, and that he used her to obtain a visa. Husband suggested to wife that he married her to get a green card.
Husband claimed he was attracted to wife, and that they kissed and embraced once after the marriage ceremony in Pakistan. He described the sleeping arrangements in wife's apartment, and his motivation for moving out and using a dating app.
Statement of Decision
In December 2018, the court granted the nullity petition on the basis of fraud. It found clear and convincing evidence husband never intended to live with wife "as husband and wife" or to "have a sexual relationship" with her, and that husband's motivation to marry wife was to "obtain a green card to allow him to remain in the United States." It noted the parties did not live together or have sexual relations for the first two and a half years of their marriage, and that when husband moved to the United States, he tried to find a separate residence. The court inferred husband intended to desert wife as soon as it was expedient. It found wife's testimony and demeanor "credible and consistent," and in contrast to husband's testimony, which was "guarded and often evasive." The court granted wife's request for attorney fees of $6,719.65, concluding the amount was reasonable. It entered judgment nullifying the marriage and awarding wife $6,719.65 in attorney fees.
DISCUSSION
I.
Substantial Evidence of Nullity Based on Fraud
Section 2210 governs actions for nullity of marriage. As relevant here, the statute provides "[a] marriage is voidable and may be adjudged a nullity" where the "consent of either party was obtained by fraud." (§ 2210, subd. (d).) " 'A marriage may be annulled for fraud only . . . 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 Goodwin-Mitchell & Mitchell (2019) 40 Cal.App.5th 232, 238 (Marriage of Mitchell).) A "judgment of nullity declares that the marriage was void from its inception" and restores the parties to the status of unmarried persons. (In re Marriage of Seaton (2011) 200 Cal.App.4th 800, 806.)
"[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.) The " '[f]raudulent intent not to perform a duty vital to the marriage . . . must exist in the offending spouse's mind at the moment the marriage contract is made.' " (Marriage of Mitchell, supra, 40 Cal.App.5th at p. 238; In re Marriage of Liu (1987) 197 Cal.App.3d 143, 156 (Marriage of Liu) [wife married to obtain a green card and harbored a "secret intention" not to consummate the marriage].) "Because public policy strongly favors marriage, the fraud must be shown by clear and convincing evidence." (Marriage of Mitchell, at p. 238.)
Where—as here—the facts are disputed, we apply the substantial evidence standard of review. (In re Marriage of Seaton, supra, 200 Cal.App.4th at p. 806.) Our " 'power . . . 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.' " (Marriage of Mitchell, supra, 40 Cal.App.5th at pp. 238-239.)
Relying mainly on his own testimony, husband contends substantial evidence does not support the trial court's fraud finding. This argument goes to the weight of the evidence, which was for the trial court to assess. (Marriage of Liu, supra, 197 Cal.App.3d at p. 156.) The court credited wife's testimony and described husband's testimony as "evasive." Under the substantial evidence test, wife's testimony is sufficient to support the court's fraud finding. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) Where the evidence conflicts, "we are bound by the trial court's interpretation of the facts." (Marriage of Liu, at p. 156.)
Substantial evidence supports the court's finding of nullity based on fraud at the time the parties entered the marriage contract. When they were married, husband told wife he wanted to have a family, but they did not consummate the marriage in Pakistan, and he refused to let wife stay with him after the wedding. While wife was in the United States, the couple communicated infrequently. When husband moved to the United States, he expressed a desire to live by himself; within a few months, he began looking for another residence. The few times the couple had sexual intercourse, husband said he did not enjoy it and that he " 'never wanted' " to have sex with wife. Husband messaged men on a dating app, where he identified himself as a homosexual. Together, this evidence supports the court's finding that husband "harbor[ed] a secret intention at the time of the marriage not to engage in sexual relations with [wife]." (Marriage of Liu, supra, 197 Cal.App.3d at p. 156.)
A minor inaccuracy in the statement of decision regarding where husband stayed when he arrived in the United States does not undermine the ample evidence supporting the court's fraud finding.
Additionally, there is evidence that husband's motive for entering into the marriage was to obtain a green card to allow him to reside in the United States. "Finally, the rapidity with which the marriage deteriorated after [husband] arrived in the United States also supports the trial court's findings. In sum, we conclude there is ample evidence to support the trial court's finding that [husband] entered the marriage to obtain a green card, and did not intend to engage in sexual relations with [wife]." (Marriage of Liu, supra, 197 Cal.App.3d at p. 156; In re Marriage of Rabie (1974) 40 Cal.App.3d 917, 921-922 [substantial evidence supported fraud finding].)
II.
Failure to Exercise Discretion and Make Findings
Required by Section 2030
Section 2030 authorizes the trial court in a nullity proceeding to order one party to pay the other party's attorney fees and costs. (§ 2030, subd. (a)(1).) The purpose of need-based attorney fees is to ensure each party has access to legal representation in marital dissolution matters. (Ibid.) To determine whether a party is entitled to fees under this statute, the court must make findings on "whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties." (§ 2030, subd. (a)(2).) The award must be "just and reasonable under the relative circumstances of the . . . parties." (§ 2032, subd. (a).) "In assessing one party's relative need and the other party's ability to pay, the family court may consider all evidence concerning the parties' current incomes, assets, and abilities." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1313-1314; §2032, subd. (b).)
" 'If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs.' " (In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1050.) Failure to make these findings—which must be stated in "writing, or orally on the record"—is "legal error." (Id. at pp. 1050, 1053.) The court has discretion when awarding attorney fees pursuant to section 2030, but "its decision must reflect an exercise of discretion and a consideration of the appropriate factors as set forth in code sections 2030 and 2032." (In re Marriage of Tharp, supra, 188 Cal.App.4th at p. 1313.)
A. Background
Several months after filing the nullity petition, wife sought an order requiring husband to pay unspecified attorney fees and costs. The request did not attach an income and expense declaration (Judicial Council Forms, form FL-150), or a fees and costs attachment (Judicial Council Forms, form FL-319). Wife offered a supporting declaration, but it did not contain information supporting her entitlement to attorney fees. (See Hogoboom, et al., Cal. Practice Guide: Family Law (The Rutter Group 2019) ¶¶ 14:150, 14:152.5, pp. 14-54 to 14-55 (Rutter) [reciting documentation necessary to support a section 2030 attorney fee request].) Husband opposed the request. The court held a hearing in June 2018, but the hearing was not reported, and the minute order made no finding regarding attorney fees.
Shortly before the evidentiary hearing on the nullity petition, wife submitted an income and expense declaration. At the hearing, the parties did not litigate wife's attorney fee request. After the hearing, wife's counsel submitted written closing argument stating wife spent $6,719.65 in attorney fees through September 2018.
The statement of decision orders husband to pay wife $6,719.65 in attorney fees, finding that amount to be "reasonable." Neither the statement of decision nor the judgment specifies the statutory authority for the attorney fee award. Neither document contains findings supporting the award.
B. The Court Erred by Awarding Attorney Fees Without Exercising Its Discretion and Making the Findings Required by Section 2030
In awarding attorney fees, the court did not determine there was a disparity in access to funds to retain counsel, nor did it find husband was able to pay for the legal representation of both parties. (§ 2030, subd. (a)(2).) There is no indication the court considered whether an attorney fee award was "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) The evidence in the record tends to support a finding of wife's need, including the fee waiver granted her early in the case, and an income and expense declaration showing her expenses exceeded her monthly wages.
We cannot say the same about evidence of husband's ability to pay wife's attorney fees. According to his income and expense declaration, husband made approximately $11 per hour, and his gross monthly income barely exceeded his expenses. Without evidence of husband's ability to pay wife's attorney fees, the award is an abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829-830 [reversing attorney fee award where "there was no evidence [the husband] could pay any portion of them"]; In re Marriage of Pollard (1979) 97 Cal.App.3d 535, 539 [abuse of discretion to award attorney fees where evidence supported party's need, but not other party's ability to pay].)
The court's failure to exercise its discretion, and to make the findings required by section 2030, was prejudicial. (In re Marriage of Morton, supra, 27 Cal.App.5th at p. 1050; In re Marriage of Tharp, supra, 188 Cal.App.4th at pp. 1313-1314 [court erred by failing to exercise discretion regarding need and ability to pay attorney fees]; In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1279-1280 [reversing attorney fee award where court failed to make statutory findings]; Mooney v. Superior Court (2016) 245 Cal.App.4th 523, 537 [reversing attorney fee order made "without the required findings"].)
The only finding the court made was the amount of fees was reasonable, but this finding is not supported by the evidence in the record, such as a declaration stating the amount sought, and the attorney's billing rate and experience. (See Rutter, supra, ¶¶ 14:152.5-14152.6, p. 14-55; Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 255.) --------
On remand, the court must exercise its discretion under section 2030, make the mandatory findings under that statute, and determine whether a fee award is appropriate. (See §§ 2030, 2032.) Nothing "preclud[es] the trial court from awarding attorney's fees to [wife] . . . if the required findings are made and such fees are merited." (Mooney v. Superior Court, supra, 245 Cal.App.4th at p. 537.)
We decline husband's challenge to another trial court order regarding attorney fees. Our jurisdiction is limited in scope to the notice of appeal. (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 846; Baker v. Castaldi (2015) 235 Cal.App.4th 218, 225 [declining to construe notice of appeal to include different order entered months later].)
DISPOSITION
The June 3, 2019 judgment of nullity of marriage is affirmed. The judgment is reversed insofar as it awards wife $6,719.65 in attorney fees. The attorney fee award is vacated, and the matter is remanded to the trial court with directions to exercise its discretion under section 2030, to make the mandatory findings under that statute, and to determine whether an attorney fee award is appropriate. (§§ 2030, 2032.)
In the interests of justice, the parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Simons, J. /s/_________
Burns, J.