Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06D007459, Claudia Silbar, Judge.
Legal Aid Society of Orange County and Ashton A. Cooper, Jr., for Appellant.
Dawn E. Wardlaw and Craig A. Darling for Respondent.
OPINION
ARONSON, J.
Weifeng Yao (Yao) appeals from a judgment annulling her marriage to Jinfeng Zhang (Zhang) on the ground that Zhang’s consent to their 18-day marriage was obtained by fraud. (Fam. Code, § 2210, subd. (d).) Because Yao recognizes that we cannot retry the facts, she contends that her appeal challenges the trial court’s “flawed application of the law” when assessing Yao’s credibility.
We fail to comprehend her purported distinction. The facts, while disputed, could go either way, and we cannot second-guess the inferences drawn by the trial court. Substantial evidence supports the trial court’s determination, by clear and convincing evidence, that Yao fraudulently entered into the marriage in order to secure a green card to allow her to reside in the United States. As in In re Marriage of Liu (1987) 197 Cal.App.3d 143 (Liu), such fraudulent intent is of the type that goes to the essence of the marital relation. The trial court simply found Zhang to be more credible than Yao.
I
We view the evidence on appeal in the light most favorable to Zhang, who prevailed below. “Although there was conflicting evidence presented at trial, we are bound by the trial court’s interpretation of the facts. [Citations.] On appeal, we have no power to weigh or judge the effect of evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence. That is the province of the trial court.” (Liu, supra, 197 Cal.App.3d at p. 156.)
Zhang, a Chinese citizen, is a permanent resident of the United States. In April 2006, Zhang, who then lived in Irvine, began an Internet relationship with Yao, who was a Chinese citizen, living in Vancouver, Canada. The two first met on the English language portion of a Chinese online dating service.
Zhang and Yao began communicating by e-mail. Zhang generally wrote to Yao in English; she replied in Chinese.
Yao intended to fly to California with her sister to attend a cousin’s wedding in mid-May 2006. Yao canceled her trip when her sister decided not to come, but Zhang asked her to visit him and paid for her airplane ticket. The couple met for the first time on May 13, 2006. Yao stayed with Zhang for several weeks until June 2. She flew back to Canada, but returned to Irvine a week later.
According to Zhang, the couple had sexual relations once during this period. Yao told Zhang “she is not comfortable to have sex before marriage.”
On June 22, Zhang and Yao became engaged, and were married on the same day. The couple argued throughout their three-day Las Vegas honeymoon, and did not have sexual relations. According to Zhang, the couple never consummated the marriage. Zhang and Yao initially slept in the same bedroom (without having sexual relations), but moved into separate bedrooms after four days.
On her marriage day, Yao wrote in her notebook that it was “important and urgent” for her to obtain a green card. Immediately after the honeymoon, she demanded that Zhang apply for a green card. Zhang testified they had a “big fight” over this. Yao also wanted to bring her mother from China to move in with them, and demanded that Zhang carry out his promise to pay her $40,000. Zhang denied that he ever had made such a promise.
On July 9, 2006, Zhang was arrested on a domestic violence charge and jailed until July 13.
In August 2006, Zhang petitioned to nullify the marriage for fraud. Yao, in response, sought to dissolve the marriage and to recover spousal support. Yao received temporary spousal support of $1,000 per month for a two-month period, but the court (Judge Franz Miller) denied further spousal support.
The trial of the annulment action began on December 6, 2007, and lasted for three days. The trial court found, by clear and convincing evidence, that Yao entered into the marriage “for the purposes of the Respondent seeking residency in the United States.” The court determined Zhang to be more credible than Yao, doubting Yao’s story that the couple became sexually intimate “on that evening on your travel back from [that] absolutely disastrous honeymoon.” Although recognizing that the testimony was conflicting, the court expressly determined that the marriage was not consummated.
The trial court entered its judgment of nullity in April 2008. Yao filed a notice of appeal after the trial court denied her motion for a new trial based upon newly discovered evidence.
II
Zhang asks us to dismiss the appeal on jurisdictional grounds. He argues the appeal is untimely because Yao’s motion for new trial was untimely, thereby depriving Yao of the 30-day extension to file a notice of appeal. (Cal. Rules of Court, rule 8.108.) “A notice of intention filed after the allowed time is invalid and does not extend the time for filing a notice of appeal from the judgment beyond the normal 60 days.” (In re Marriage of Patscheck (1986) 180 Cal.App.3d 800, 802 (Patscheck).)
Since the court clerk served notice of entry of judgment on April 29, 2008, Yao had until May 15 in which to serve and file her motion for new trial. (Code Civ. Proc., § 659.) Yao filed her new trial motion on May 14, a day before the statutory deadline. The proof of service, certified under penalty of perjury, shows the same May 14 date. Zhang, however, filed a declaration that his attorney’s office received the document in an envelope that was postmarked May 21, 2008. In response, Yao’s counsel declared that his office mailed the motion for new trial a second time after being told that Zhang had not received it.
The trial court, while noting the evidentiary conflict, declined to deny the new trial motion as untimely because “it’s just not really clear cut, so I’m not going to deny it on the timeliness.” As a result, the court proceeded to consider the merits of the new trial motion.
Zhang argues that the trial court lacked any discretion to “forgive” Yao’s untimely filing. That is not what the trial court did. In proceeding to uphold the validity of the new trial motion in this questionable case, the trial court followed “‘well-established policy, based upon the remedial character of the right of appeal’” to resolve doubtful cases in favor of recognizing the court’s jurisdiction. (Patscheck, supra, 180 Cal.App.3d at p. 803.) “‘As we have indicated, there are many cases in which this policy, implemented in accordance with “applicable rules,” will lead to a determination, based on construction and interpretation, that timely and proper notice... must be deemed in law to have been filed within the jurisdictional period.’” (Ibid.)
In accordance with long-established rules of construction, we affirm the trial court’s jurisdictional ruling. Since the trial court had jurisdiction to hear the new trial motion based upon the disputed facts of its timely filing, Yao filed a timely notice of appeal.
III
A marriage may be nullified because of immigration fraud if there is clear and convincing evidence that one party secretly concealed from the other an intent to marry to obtain permanent residency in the United States. (Liu, supra, 197 Cal.App.3d at p. 156; see Fam. Code, § 2210, subd. (d).) The existence of actual fraud is a question of fact, measured on appeal under the substantial evidence rule. (In re Marriage of Rabie (1974) 40 Cal.App.3d 917, 921-922 [marriage for green card annulled].)
Family Code section 2210, subdivision (d), provides: “A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:... [¶] (d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.”
In Liu, the Court of Appeal upheld a judgment of annulment based on immigration fraud involving a couple whose unconsummated marriage deteriorated within two months after the foreign wife arrived in the United States. The Liu court cited these factors as substantial evidence to support the inference wife entered the marriage to fraudulently obtain a green card. (Liu, supra, 197 Cal.App.3d at pp. 155-156.)
Yao misapprehends the relationship between the substantial evidence standard of review that applies at the appellate level, and the clear and convincing burden of proof that applies at the trial court level. “The clear and convincing proof requirement operates in the trial, and not the appellate, court. The substantial evidence rule that applies on appeal, applies without regard to the standard of proof applicable at trial.” (In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 345.)
Yao, citing Bragg v. Bragg (1934) 219 Cal. 715, 720, claims that Zhang “admitted” that she was “motivated by money.” According to Yao, “[t]his alone takes away [his] argument that the marriage was motivated solely for the purpose of obtaining a green card.”
The record below supports the trial court’s determination, by clear and convincing evidence, that “that this marriage was entered into for the purposes of [Yao] seeking residence in the United States” and “not because of anything else.” (Italics added.) “‘The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.’ [Citations.]” (Crail v. Blakely (1973) 8 Cal.3d 744, 750.)
The trial court found Yao’s determination to get a green card on the very day that she got married to be “persuasive evidence” of her motivation. “On the day you get married, rather than discuss making a home, finding a place to begin your life, having children, starting a relationship, a green card is one of your first things you list on the day of your marriage.” Yao herself told Zhang that she previously had married a Canadian man, in a marriage that lasted but three months, for the express purpose of emigrating from China to Canada. The trial court also cited the rapid disintegration of the marriage, and Zhang’s testimony that the marriage was never consummated.
Yao contends that Zhang’s testimony that they never had sex after marriage “is not believable” given his concession that they engaged in premarital sex at least once. “Respondent’s claim that the parties slept in the same bed after marriage, but did not engage in sexual intercourse is not believable.” Contradicting Zhang’s testimony, Yao testified that they had sexual intercourse five or six times after they returned from the honeymoon, and denied that they slept in separate bedrooms She testified that “we were very happy” after returning from the honeymoon. “After we were married there were times we were very happy and I did want to stay with him for the rest of my life.” She also testified that she only wanted to bring her mother over from China to visit with them, not to live.
Suffice it to say, the trial court chose to believe Zhang’s version of events, not Yao’s. Yao’s arguments on appeal go to the weight of the evidence, a matter in which the trial court was in a superior position to assess. We cannot say that Zhang’s testimony was so inherently unreliable as to be unworthy of belief. “‘The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony when read, may convey a most favorable impression.’ [Citation.]” (Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 140.)
IV
The trial court did not abuse its discretion in denying a new trial because of newly discovered evidence. In her new trial motion, Yao declared that she “misplaced” a journal in which both she and Zhang had written in Chinese about the marriage, and that she did not find the journal until the second day of trial, when it was too late for her counsel to obtain an English translation.
The evidence was not “newly discovered.” To the contrary, it remained in Yao’s possession from the domestic violence hearing until trial. Yao never explained why she found it on the second day of trial, and why she could not have found it earlier. Moreover, as the trial court explained at the hearing on the new trial motion, Yao’s counsel never asked to continue the trial so that he could have the journal translated into English. Yao failed to meet her burden, as the party seeking a new trial, to show that she exercised reasonable diligence to discover and produce the missing evidence at trial. (Liu, supra, 197 Cal.App.3d at p. 153.)
The trial court properly denied Yao’s new trial motion on the additional grounds of bias and surprise. The trial court did not show any bias towards Yao in the trial, and, as Zhang notes, “gave her every opportunity to have a fair trial, including continuing the trial so that she could be provided with an interpreter.”
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.