Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MFL003252. D. Lynn Jones, Judge.
Adegbemiga Adesokan, in pro. per., for Appellant.
Mortimer & Schwin and Kevin Michael Schwin for Respondent.
OPINION
CORNELL, J.
Appellant Adegbemiga Adesokan (Adesokan) challenges several of the family court’s decisions. He contends (1) the family court abused its discretion in denying him a continuance of the trial on the status of the marriage; (2) substantial, credible evidence did not support the finding that a valid marriage existed between him and Stella Nnamani Adesokan (Nnamani); and (3) the family court erred in finding him in willful contempt of an order to pay child support.
Adesokan claims the evidence supporting the finding of a valid marriage was inherently improbable. A claim that evidence is inherently improbable often is made on appeal, but it rarely prevails. This is one of those rare cases. We will reverse the judgment finding a valid marriage. Because we are reversing, we need not address Adesokan’s contention that the trial court abused its discretion in denying a continuance of the trial. Adesokan’s argument on the contempt fails as we conclude the contempt order is not appealable.
FACTUAL AND PROCEDURAL SUMMARY
Apparently in 2007, Nnamani filed for a dissolution of marriage from Adesokan, alleging the two were married on June 29, 2002, in Nigeria. Adesokan filed a response on July 26, 2007, stating under penalty of perjury that the parties were not married legally. Adesokan’s response stated that the parties could not have married in Nigeria on June 29, 2002, because he was in the United States on that date, as shown by his passports. He also declared under penalty of perjury that he never signed the “alleged document” purporting to be a marriage certificate. Adesokan stated that he and Nnamani had lived together for a total of six months during her time in the United States.
The petition of dissolution is not a part of the record on appeal.
Adesokan set forth under penalty of perjury that Nnamani had entered the United States from Nigeria pursuant to a petition for a fiancée visa. A fiancée visa required the parties to marry within 90 days of Nnamani’s entry into the United States in order for Nnamani to obtain permanent resident status; the parties never married. Adesokan notified the United States Citizen and Immigration Services that he did not intend to marry Nnamani. Adesokan attached copies of his passports, the fiancée visa request, and the withdrawal of the fiancée visa request.
The petition for alien fiancée visa, dated May 2, 2003, stated that Nnamani was not married. It was made under penalty of perjury. It was received by the United States Immigration and Naturalization Services (INS) on May 12, 2003. The withdrawal notice stated that withdrawal of the petition was made by Adesokan in September 2004 in the Fresno INS office and a withdrawal notice was filed with the United States Department of Homeland Security on May 8, 2007.
Thereafter, a trial to determine marital status commenced on October 26, 2009. Nnamani was represented by counsel; Adesokan was not. Adesokan previously was represented by counsel in the matter, but his counsel was not present. Counsel had notified Adesokan and opposing counsel that she “was not going to be practicing law.” The family court relieved Adesokan’s counsel as attorney of record and told Adesokan he would be representing himself. Adesokan requested a continuance of the trial, but Nnamani’s counsel objected. Adesokan maintained that he was not fully prepared to go forward because he had been relying on his counsel. The family court denied Adesokan’s request for a continuance and insisted that the trial proceed.
Both Adesokan and Nnamani testified; several exhibits were admitted into evidence. Testimony at trial established that it was not uncommon for Nigerian couples to have numerous marriage ceremonies consisting of a traditional Nigerian rite, a religious ceremony, and a legal ceremony. On January 12, 2002, Adesokan and Nnamani entered into a traditional Nigerian rite. On January 19, 2002, they entered into a religious ceremony.
On June 4, 2002, Adesokan obtained an annulment and dissolution of the traditional and religious marriage ceremonies. According to the annulment and dissolution judgment, Nnamani did not contest Adesokan’s petition to annul and dissolve the marriage or the findings of the Nigerian court. The Nigerian court granted Adesokan’s request on the grounds of adultery and desertion by Nnamani. The annulment and dissolution judgment was entered into evidence without objection.
The parties disagree on what occurred after the annulment and dissolution. Nnamani claims that despite Adesokan having obtained an annulment and dissolution on June 4, 2002, he entered into a legal marriage with her on June 29, 2002, in Nigeria. Adesokan testified there was no third marriage ceremony in Nigeria on June 29; he was in the United States at that time as shown by his United States and Nigerian passports. The parties stipulated that if the third marriage in fact took place on June 29, 2002, in Nigeria, it would be a valid marriage under Nigerian law. The two prior ceremonies could not have constituted a valid marriage because Adesokan’s marriage to his first wife in the United States was not finally dissolved until June 21, 2002.
Nnamani testified that after the June 29, 2002, ceremony, both she and Adesokan signed the local government record in the “big book” and Adesokan was given a copy of the marriage certificate. At another point, Nnamani testified that after the June 29, 2002, marriage ceremony, Adesokan was given the original marriage certificate. Nnamani claimed that after she came to the United States, she went through Adesokan’s papers, found the marriage certificate, and took it.
It is unclear, but apparently Nnamani did not mark the original marriage certificate as evidence, instead marking a photocopy as exhibit E; counsel retained the original document. Adesokan had not been provided an opportunity to view the original prior to trial. He “didn’t know what this was.” The family court asked Adesokan if he had any objection to exhibit E (the purported marriage certificate) being admitted; Adesokan said “No, ” and it was admitted into evidence. A copy was admitted into evidence because the original purportedly was “folded, and flimsy.”
Nnamani testified that a “guy that helped in the process of signing the paperwork” on June 29, 2002, prepared the marriage certificate. She claimed to have witnessed Adesokan signing the marriage certificate.
Adesokan testified that after obtaining the annulment and dissolution, Nnamani apologized for her conduct and pleaded with him to continue their relationship. Eventually, Adesokan relented and agreed to “give it a try.” He filed paperwork seeking to bring Nnamani to the United States.
Nnamani admitted at trial that she entered the United States under a fiancée visa. She also admitted that prior to obtaining the fiancée visa, she went to the United States consulate in Nigeria and met with a consular officer. Nnamani was told by the consular officer that she was being processed for entry to the United States under a fiancée visa; Nnamani did not tell the consular officer that she was married. She claimed Adesokan wanted her to lie to the consulate officer about her status, but she could not remember if Adesokan had been present during the meeting. The fiancée visa documentation was admitted into evidence without objection.
Adesokan had to submit tax returns, W-2 forms, and a letter to the United States Embassy in Nigeria stating that Nnamani would not be a “ward of the State” if she entered on a fiancée visa. Adesokan’s letter set forth that he had been a United States resident for 25 years and was a financial planner. He also stated that Nnamani was fluent in English, a college graduate, and had been gainfully employed in Nigeria as a store manager. He opined that she would be capable of supporting herself if he were unable.
Nnamani also testified that it was customary in Nigeria for a woman to assume the man’s last name after marriage. She acknowledged that her application for a visa to enter the United States dated April 22, 2004, stated her last name as Nnamani.
Adesokan testified that Nigeria allowed dual citizenship and he maintained both a Nigerian and United States passport. He also testified he did not have any other passports issued by any other country. The original United States and Nigerian passports were marked as exhibits. Adesokan was adamant that there was no marriage ceremony on June 29, 2002, in Nigeria because he was in the United States at that time. Adesokan’s United States passport was admitted into evidence as exhibit 2 without objection. The passport showed that Adesokan departed Nigeria on June 10, 2002, and arrived in the United States on June 11, 2002. He did not leave the United States again until August 2003. Adesokan also had his Nigerian passport admitted into evidence.
In order for Adesokan to have his original passports returned, the court clerk made copies of the passports, which included a current passport as well as a prior cancelled passport, and returned the originals to Adesokan. The family court admitted all the copies of the passports without objection.
It was Adesokan’s intent to bring Nnamani to the United States so they could get married, but when he found out she was using his social security number illegally, he told her he did not want to marry her. Adesokan asked her to leave. He filed for a withdrawal of the fiancée petition and told Nnamani to move out of his home. Later, he found out Nnamani was pregnant and he allowed her to move back into the home.
Nnamani twice moved out of and back into Adesokan’s house. After she “left for good, ” she filed for a change in her visa status. Nnamani applied for a change in status through “violence against women.” She was given a “green card.” As a result of Nnamani’s accusation that Adesokan abused her, his financial planning license was revoked in February 2007.
Adesokan had a bachelor’s degree in business administration and a master’s degree in finance. At the time of trial, he had been unemployed or minimally employed since his license was revoked.
At the conclusion of the testimony, the family court commented:
“I don’t know how it is possible, Mr. Adesokan, that you could have, based upon your passports, had been in Nigeria at the time of the wedding. However, Mrs. Adesokan testified that you were there. [¶] … [¶] … I have no explanation for it, other than it appears to be your signature on the marriage certificate, and in keeping with the laws, it’s my understanding that a court is bound, if there appears to be a valid marriage, if everything appears in order, that the marriage should be validated.”
The family court found that a valid marriage between Nnamani and Adesokan had taken place on June 29, 2002, in Nigeria.
On January 25, 2010, the family court entered a judgment, finding that there was a valid marriage between Nnamani and Adesokan and dissolving that marriage, determining that the parties had two minor children, setting spousal and child support, and dividing the marital property. Adesokan appealed the judgment.
The judgment is not a part of the clerk’s transcript but is contained in this court’s file.
DISCUSSION
Adesokan raises several issues in his opening brief, including (1) the family court abused its discretion in denying him a continuance of the trial; (2) substantial, credible evidence did not support the finding of a valid marriage; and (3) the family court erred in finding him in willful contempt of the order to pay child support. We will discuss the challenge to the contempt finding first.
I. Appealability of Contempt Order
Procedural Summary
On January 21, 2010, Adesokan filed a notice of appeal from the November 5, 2009, order and January 14, 2010, ruling. Neither the order nor the ruling addressed the contempt.
On January 26, 2010, Adesokan filed a designation of record on appeal. Included in the designation was a request that the proceedings pertaining to the hearing regarding contempt be included in the appeal. The contempt citation was filed on December 10, 2009.
On March 4, 2010, Adesokan filed a civil case information statement. The civil case information statement stated the appeal was from the proceedings held on October 27, 2009, which included a hearing regarding contempt and the trial on the status of the marriage. Attached to the civil case information statement were copies of the December 10, 2009, contempt order, the November 5, 2009, order establishing custody and visitation rights with the two minor children, and the January 25, 2010, judgment and notice of entry of judgment dissolving the marriage and referencing attachments (not included) that addressed child custody and visitation, child support, spousal support, and property division.
Analysis
The contempt order of December 10, 2009, is a nonappealable order. In People v. Gonzalez (1996) 12 Cal.4th 804, 816, the court stated:
“[A]n order to show cause regarding an alleged act of contempt may issue in the court that made the order that was violated, commencing a separate action in the ordering court. Upon a finding of contempt, the contemner may be punished with up to five days in jail and a fine. (Code Civ. Proc., §§ 1209, subd. (a)(5), 1218; 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 17, pp. 48-50.) Because of the potential punishment, this type of proceeding is considered quasi-criminal, and the defendant possesses some of the rights of a criminal defendant. (Ross v. Superior Court (1977) 19 Cal.3d 988, 913; Raiden v. Superior Court (1949) 34 Cal.2d 83, 86; In re Witherspoon (1984) 162 Cal.App.3d 1000; see also Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1240-1244 (plur. opn. of Eagleson, J.); 3 Witkin, Cal. Procedure, supra, Actions, § 17, pp. 48-50.) The contemner possesses no right of appeal, however, and review of the contempt judgment is by extraordinary writ. (Code Civ. Proc., § 1222; Bermudez v. Municipal Court (1992) 1 Cal.4th 855, 861, fn. 5; Brunton v. Superior Court (1942) 20 Cal.2d 202, 204; 8 Witkin, Cal. Procedure, supra, Enforcement of Judgment, § 354, p. 306, and cases cited.)” (Italics added.)
Code of Civil Procedure section 904.1, subdivision (a)(1) explicitly provides that an appeal may not be taken from “a judgment of contempt that is made final and conclusive by [Code of Civil Procedure] Section 1222.” Code of Civil Procedure section 1222 states: “The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive.” As a result of these statutory provisions, a judgment holding a party in contempt is not subject to challenge by appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 2:29, p. 2-20 (rev. #1, 2008).) The only method for obtaining appellate review is by writ of certiorari or writ of habeas corpus. (Id., ¶ 2:30, pp. 2-20 to 2-21.)
Adesokan was represented in the contempt proceedings by counsel. No writ petition was filed seeking review of the contempt order. Based on Code of Civil Procedure sections 904.1 and 1222, this court has neither the authority nor the jurisdiction to review the contempt order as part of this appeal.
The notice of appeal was filed before the entry of the judgment on January 25, 2010. (Cal. Rules of Court, rule 8.104(a).) In the interest of judicial economy, we will consider the premature notice as having been filed immediately after the judgment was entered. (Id., rule 8.104(e)(2); see also In re Marriage of Gray (2007) 155 Cal.App.4th 504, 514; Matera v. McLeod (2006) 145 Cal.App.4th 44, 59.)
II. Sufficiency of the Evidence of Marriage
The trial court commented, “I don’t know how it is possible” and “I have no explanation for it” after noting that the passports showed Adesokan was in the United States on June 29, 2002, but Nnamani testified he was in Nigeria on that day. The trial court determined that a valid marriage existed between Adesokan and Nnamani, despite Adesokan’s passports establishing he could not have been in Nigeria and participating in a marriage ceremony on June 29, 2002. Adesokan challenges the sufficiency of the evidence to support the trial court’s finding.
Factual Summary
The undisputed evidence is that Adesokan maintained from the inception of this case that he and Nnamani were not married. Adesokan stated under penalty of perjury in his response to the dissolution petition that he could not have participated in a marriage ceremony in Nigeria on June 29, 2002, because (1) he was in the United States on that date; (2) Nnamani entered the United States in 2003 on a fiancée visa; (3) no subsequent marriage took place and the parties were not married; and (4) the parties lived together for a total of about six months.
At the trial, Nnamani acknowledged that she entered the United States pursuant to a fiancée visa. Nnamani also admitted that prior to entering the United States, she met with a United States consular officer, understood she was being processed for entry pursuant to a fiancée visa, and never told the United States consular officer that she was married. Nnamani claimed that Adesokan physically was present in Nigeria on June 29, 2002, and she witnessed him signing the marriage certificate. Nnamani claimed that after the ceremony, Adesokan was given the original certificate; at another instance she claimed he had been given a copy. She did testify that after arriving in the United States, she went through Adesokan’s papers and took the marriage certificate.
During the trial, several exhibits were admitted into evidence, including Adesokan’s original United States and Nigerian passports, a copy of the purported marriage certificate, and the fiancée visa documentation. No challenge to the authenticity of any of the documentation was made, except for the marriage certificate.
Standard of Review
“In reviewing the sufficiency of the evidence to support the trial court’s findings we are bound by the substantial evidence rule.” (Swanson v. Skiff (1979) 92 Cal.App.3d 805, 808.) Substantial evidence is not synonymous with any evidence. Instead, it is substantial proof of the essentials that the law requires. “The focus is on the quality, rather than the quantity, of the evidence. ‘Very little solid evidence may be “substantial, ” while a lot of extremely weak evidence may be “insubstantial.”’ [Citation.] Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 (Roddenberry).) “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” (Id. at p. 652.)
An appellate court cannot reject the testimony of a witness the trier of fact chose to believe, unless the testimony was physically impossible or its falsity was plainly apparent. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259 (Watts).) The testimony of one witness is enough to sustain a finding, so long as that testimony is not inherently incredible or improbable. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830 (Daniel G.).)
Testimony may be rejected as inherently improbable “due to its inaccuracy, due to uncertainty, lapse of time, or interest or bias of the witness.” (La Jolla Casa de Manana v. Hopkins (1950) 98 Cal.App.2d 339, 345-346.) Testimony that is inherently improbable has been described as physically impossible or “wholly unacceptable to reasonable minds.” (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492 (Evje).) “To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.” (People v. Headlee (1941) 18 Cal.2d 266, 267 (Headlee).)
Analysis
In this case, we are presented with testimony that is inherently improbable. It is not possible for Adesokan to have been married in Nigeria on June 29, 2002, if he was in the United States on that date. We focus our analysis on the purported marriage certificate for two reasons: (1) it was the only document admitted into evidence whose authenticity was challenged, and (2) it served as the basis for the family court’s ruling.
The copy of the purported marriage certificate admitted into evidence does not bear any certification that it is a true and correct copy of an official record of marriage in Nigeria. It does purport to bear a stamp from a “Marriage Registry” and a signature.
Evidence Code section 1452, subdivision (c) specifies that a seal is presumed to be genuine and its use authorized if it purports to be the seal of a nation recognized by the executive power of the United States, or of a department, agency, or officer of such a nation. No evidence was submitted to the family court that Nigeria is a nation recognized by the executive power of the United States of America. Absent such evidence, the purported marriage certificate is not entitled to any presumption of genuineness under section 1452.
All further statutory references are to the Evidence Code unless otherwise specified.
Even if we assume Nigeria to be a nation recognized by the United States within the meaning of section 1452, subdivision (c), the presumption set forth in that code section does not apply when the authenticity of the document is challenged. (Cal. Law Revision Com. com., 29B pt. 4 West’s Ann. Evid. Code (1995 ed.) foll. § 1452, pp. 482-483; Evid. Code, § 604.) Here, Adesokan challenged the authenticity of the document in multiple ways: (1) when he noted he had not seen the document prior to the start of the trial, (2) by submitting his original United States and Nigerian passports establishing he was in the United States on June 29, 2002, and testifying he was in the United States on that date, (3) testifying he had no other passport, and (4) testifying there was no marriage ceremony on June 29, 2002.
Even if the family court chose to discredit Adesokan’s testimony regarding his whereabouts on June 29, 2002, it could not disregard the passport evidence. Adesokan’s original passport presumptively was genuine and the original was produced, marked and admitted into evidence. (§ 1452, subd. (b).) The passport alone was sufficient to call into question the authenticity of an uncertified foreign document whose contents purported to reflect an event that physically could not have occurred.
With the authenticity of the purported marriage certificate in question, the presumption of section 1452 is inapplicable and section 604 requires a determination to be made from the admissible evidence, without regard to any presumption in section 1452. Pursuant to section 1454, a foreign document may be admitted into evidence if it is accompanied by a final statement certifying the genuineness of the foreign official’s signature and the official position of:
“(a) the person who executed the writing or (b) any foreign official who has certified either the genuineness of the signature and official position of the person executing the writing or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person executing the writing. The final statement may be made only by a secretary of an embassy or legation, consul general, consul, vice consul, consular agent, or other officer in the foreign service of the United States stationed in the nation, authenticated by the seal of his office.” (Italics added.)
No final statement as required by section 1454 was submitted to authenticate the purported marriage certificate, a foreign document. We do not even know if the purported signature on the certificate is the signature of any Nigerian official. Nnamani testified merely that it was signed by some individual who “helped in the process of signing paperwork.”
We recognize that Adesokan ultimately stated “No” when asked if he had any objection to the copy of the marriage certificate being admitted into evidence. Adesokan, however, did challenge its authenticity. Adesokan also was acting without benefit of counsel, since the family court substituted out his counsel of record at the start of the trial and directed him to proceed as a self-represented litigant after denying his request for a continuance.
Nnamani cites Estate of Chandler (1931) 113 Cal.App. 630 for the proposition that testimony of a party to a marriage regarding the circumstances surrounding the ceremony creates a presumption of a valid marriage. The holding in Chandler does not apply to the facts of this case. There, the issue was the validity of a marriage that the wife maintained had been performed in Mexico. The wife testified in detail regarding the circumstances surrounding the marriage ceremony. This, however, was not the sole basis for the appellate court’s decision upholding the validity of the marriage. The appellate court noted that other witnesses testified the husband had held himself out as married to the wife, there was no direct evidence that no marriage had taken place, the parties had cohabitated as husband and wife for 20 years, and the parties entered into a second marriage ceremony in California. (Id. at pp. 633-635.)
Here, however, no third parties testified that Adesokan ever held himself out as married to Nnamani, there was direct evidence from Adesokan that no marriage took place, the authenticated and presumptively true United States passport established Adesokan could not have been in Nigeria when Nnamani claimed a marriage ceremony occurred, and there was no authentication of the Nigerian marriage certificate.
Adesokan also tried to submit evidence that Nnamani had a vested interest in claiming a valid marriage existed, as opposed to putative spouse status, but the family court rebuffed his efforts. A person who enters the United States as an alien spouse is accorded permanent residency status. (8 U.S.C. § 1186a(a)(1).) A person who enters on a fiancé/fiancée visa must enter into a valid marriage within 90 days of entering the United States in order to be accorded permanent residency status. (8 U.S.C. § 1101(a)(15)(K)(i); Caddali v. I.N.S. (9th Cir. 1992) 975 F.2d 1428, 1430.)
As we indicated previously, substantial evidence is not synonymous with any evidence. (Roddenberry, supra, 44 Cal.App.4th at p. 651.) While the testimony of a single witness may be sufficient to support a judgment, that witness’s testimony must be credible and not inherently improbable. (Daniel G., supra, 120 Cal.App.4th at p. 830.) Here, the evidence in support of the family court’s finding that a valid marriage took place in Nigeria on June 29, 2002, was physically impossible and wholly unacceptable to reasonable minds. (Watts, supra, 76 Cal.App.4th at p. 1259; Evje, supra, 120 Cal.App.2d at p. 492.)
While it is rare that a finding of a trial court is overturned because of the inherent improbability of the evidence in support of the finding, it is not without precedent. In Headlee, supra, 18 Cal.2d 266, the California Supreme Court reversed a conviction after concluding that, under all the circumstances, the testimony of the prosecution’s witness was inherently improbable because it was inconsistent with the witness’s prior conduct. (Id. at pp. 267, 275.)
Nnamani’s testimony falls within the realm of physically impossible or inherently improbable and subject to rejection by an appellate court when all the following circumstances are considered: (1) the purported marriage certificate never was properly authenticated; (2) the marriage certificate purports to record a marriage in Nigeria on June 29, 2002, a date on which Adesokan’s official, authenticated United States passport establishes a presumption that he was in the United States; (3) Nnamani’s testimony during the trial was inconsistent with her prior actions and statements under penalty of perjury in the fiancée visa to the United States consular officer and in entering the United States as an unmarried woman; and (4) Nnamani needed to establish she was married to a United States citizen in order to obtain permanent residency status in the United States.
Considering all of the circumstances and the evidence, we conclude there was insufficient credible evidence to support a finding of a valid marriage.
DISPOSITION
The finding that Adesokan and Nnamani validly were married is vacated and the January 25, 2010, judgment is reversed to the extent it purports to dissolve a marriage between the parties.
WE CONCUR: WISEMAN, Acting P.J., FRANSON, J.