Opinion
A130705
01-24-2012
In re the Marriage of MARINA IZMAYLOVSKAYA and OLEG LEONIDOV . MARINA IZMAYLOVSKAYA, Respondent, v. OLEG LEONIDOV, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City and County Super. Ct. No. FDI-09-771218)
Marina Izmaylovskaya petitioned for an order annulling her marriage to Oleg Leonidov, on the ground of fraud (Fam. Code, § 2210, subd. (d)). The trial court granted the petition and also denied Leonidov's request for reimbursement of separate property funds (§ 2640). Leonidov appeals from the judgment, arguing that the trial court's findings are not supported by substantial evidence. We affirm.
Unless otherwise noted, all further statutory references are to the 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."
I. ANULLMENT OF A MARRIAGE
"A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud. (. . . § 2210, subd. (d).) A marriage may be annulled for fraud only in an extreme case where the particular fraud goes to the very essence of the marriage relation. [Citation.] The fact represented or suppressed to induce consent to marriage will be deemed material if it relates to a matter of substance and directly affects the purpose of the party deceived in entering the marital contract. [Citation.] In other words, the fraud relied upon must be such as directly defeats the marriage relationship and not merely such fraud as would be sufficient to rescind an ordinary civil contract. [Citations.] Fraudulent intent not to perform a duty vital to the marriage state must exist in the offending spouse's mind at the moment the marriage contract is made. [Citation.]
"[T]he long-standing rule is that neither party may question the validity of the marriage upon the ground of express or implied representations of the other with respect to such matters as character, habits, chastity, business or social standing, financial worth or prospects, or matters of a similar nature. [Citation.] . . . [¶] . . . [¶] [T]o void a marriage, the fraud alleged must show an intention not to perform a duty vital to the marriage, which exists in the mind of the offending spouse at the time of marriage. (Millar v. Millar (1917) 175 Cal. 797 [wife concealed from husband at time of marriage that she did not intend to have sexual relations with him]; Hardesty v. Hardesty (1924) 193 Cal. 330 [wife concealed from husband at time of marriage that she was pregnant by another man]; Vileta v. Vileta (1942) 53 Cal.App.2d 794 [spouse concealed from other spouse known fact of sterility at time of marriage]; In re Marriage of Liu [(1987)] 197 Cal.App.3d 143 [(Liu)] [wife married husband in Taiwan to acquire a green card, and never consummated the marriage].) Thus, historically, annulments based on fraud have only been granted in cases where the fraud relates in some way to the sexual, procreative or child-rearing aspects of marriage. [Citation.]" (In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 757-758, parallel citations omitted.)
II. FACTUAL AND PROCEDURAL BACKGROUND
Approximately 25 years ago, Izmaylovskaya and Leonidov were first married in the Ukraine. In 1995, the parties divorced. Izmaylovskaya immigrated to the United States and eventually became a citizen. Izmaylovskaya and Leonidov were married—for the second time—in this country on January 15, 2008.
On December 14, 2009, Izmaylovskaya filed a petition seeking to nullify the marriage on the ground of fraud (§ 2210, subd. (d)). She also requested that a 2008 Toyota Camry and her condominium, located on La Playa Street, be confirmed as her separate property. Leonidov filed his response, including a petition for dissolution of the marriage. He also requested that the assets in a Wells Fargo bank account and $66,800 be confirmed as his separate property. After Leonidov filed a motion for judgment, both parties appeared, in propria persona, and offered the below evidence.
Izmaylovskaya and Leonidov rekindled their relationship in 2006, while Izmaylovskaya was vacationing in the Ukraine. After Izmaylovskaya returned to the United States, she received emails and other communication from Leonidov. Eventually, she divorced her then husband and borrowed $30,000, from a friend, to bring Leonidov to the United States. On January 15, 2008, shortly after Leonidov arrived in the United States, Izmaylovskaya and Leonidov were again married.
Izmaylovskaya and Leonidov lived together, with her son (Alexander), in her condominium. Izmaylovskaya worked to support the family while Leonidov learned English. Alexander testified that it was a peaceful household during this time. Leonidov, on the other hand, testified that he felt pressured and that Izmaylovskaya raised her voice at him. He also admitted that he kept in touch with other women in the Ukraine.
In March 2008, Izmaylovskaya came to believe that Leonidov had a continuing relationship with a 26-year-old woman in the Ukraine, who was pregnant with his child. At trial, Leonidov did not deny the relationship, but declined to acknowledge that the child was his. Leonidov returned to the Ukraine shortly thereafter, in mid-March. The parties dispute whether he returned to help the other woman with the birth or to attend to issues with his teenage son, who remained in the Ukraine.
Right before Leonidov returned to the Ukraine, $57,500 was transferred from his separate Bank of America account to the parties' joint account or to an account in Izmaylovskaya's name. Izmaylovskaya testified that the transfer was made to ease Leonidov's fears that "others" were seeking access to his money. Leonidov, on the other hand, testified that the funds were transferred at Izmaylovskaya's insistence to enable her to refinance her condominium.
The other woman's baby was born in June 2008. Izmaylovskaya testified that, after the birth, Leonidov discovered that his return to the Ukraine was considered an abandonment of his application to adjust status in the United States. Thereafter, Leonidov declared his love for Izmaylovskaya, insisted he made a mistake with the other woman, and stated that he wanted to return to the United States and make a family with Izmaylovskaya. Izmaylovskaya submitted another visa application so that Leonidov could return to the United States.
In October or November 2008, Leonidov returned to the United States and resided with Izmaylovskaya until either March 2009 or August 2009. Leonidov testified that he asked Izmaylovskaya about the transferred money and she said she gave it to a charity. Izmaylovskaya, on the other hand, testified that the money was spent, with Leonidov's knowledge, on household expenses, Leonidov's immigration costs, and repayment of the loan from her friend.
Izmaylovskaya testified that the marriage was never consummated, even after Leonidov returned from the Ukraine. Leonidov went to see a doctor, who told them there was nothing physically wrong. Leonidov was given pills, which he did not take. Leonidov did not dispute Izmaylovskaya's testimony regarding consummation, but said that he was "tired and stressed" while working as a taxi driver at night.
In either February or April 2009, Izmaylovskaya overheard Leonidov speaking on the telephone. He told the other person to be patient, that he needed " 'to have some time in the marriage . . . to prove that it was valid marriage.' " Izmaylovskaya testified: "[N]ow, I connected all [the] dots and I understood that . . . he kept faith to that woman, he probably loved her. It's probably his intention to bring her. . . . [¶] [E]very action to me was clearly stating to me that he never intended to live with me, to build a relationship with me, to go through all things with me. We could never plan for a future." After Izmaylovskaya confronted Leonidov about the call, the parties separated. Izmaylovskaya testified that Leonidov took all of his belongings from the home and left no contact address. Izmaylovskaya said that she believed Leonidov married her only so that he could obtain residency in the United States. Leonidov, on the other hand, testified: "I came to America with the best intentions . . . intentions of creating a family."
On October 22, 2010, the trial court issued its findings and order after hearing. The court stated: "A judgment of nullity on the ground of fraud is proper only in extreme cases where the particular fraud goes to the very essence of the marriage. [Citation.] The alleged fraud must go to the 'vital relationship' directly affecting the purpose of the deceived party in consenting to the marriage. [Citation.] As between married persons, a concealed intent not to engage in sexual relations with the other spouse is grounds for nullification. [(Millar v. Millar, supra, 175 Cal. at pp. 804-805.)] A separate ground is where one party's motive is solely to obtain residency status in the United States. [(Liu, supra, 197 Cal.App.3d at p. 156.)] The evidence [Izmaylovskaya] presents establishes a basis for nullification and [Leonidov] fails to effectively rebut the facts set forth. For the reasons stated, the Court finds that the marriage is to be nullified on the ground of fraud within the meaning of . . . § 2210(d)." The trial court confirmed the Toyota and condominium as Izmaylovskaya's separate property. With respect to Leonidov's funds, the court observed: "[Izmaylovskaya's] testimony is far more credible than [Leonidov's] version of events. Accordingly, the court finds that [Leonidov] is not entitled to any of the [$66,800] he seeks. He is entitled to the funds in the Wells Fargo Bank [account]." Leonidov filed a timely notice of appeal.
III. DISCUSSION
Leonidov contends that the trial court's findings are not supported by substantial evidence. "We review the judgment of nullity or a decision regarding the validity of a marriage under the substantial evidence standard of review." (In re Marriage of Ramirez, supra, 165 Cal.App.4th at p. 756.) "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.)
Preliminarily, we note that Leonidov has forfeited his substantial evidence arguments by presenting a deficient opening brief. "An appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant. [Citation.]" (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415.) In his statement of facts, Leonidov made no attempt to fairly state all the evidence before the trial court, including the evidence supporting the judgment. Rather, he has focused solely on the evidence that supports his position. By failing to fairly state the evidence before the trial court, Leonidov has forfeited his substantial evidence arguments on appeal. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Chicago Title Ins. Co. v. AMZ Ins. Services, Inc., supra, 188 Cal.App.4th at p. 415.) Nonetheless, having conducted our own review of the record, we address the merits of Leonidov's arguments.
Leonidov's claim, that substantial evidence does not support the trial court's finding of fraud, is nothing more than an attempt to reargue the evidence. Izmaylovskaya specifically testified that the "marriage was never consummated." Contrary to Leonidov's suggestion in his opening brief, there was no conflicting evidence on this point. And, even if there had been a conflict, the testimony of a single credible witness, even that of a party, is sufficient to constitute substantial evidence. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1075; In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Izmaylovskaya presented substantial evidence to support the trial court's finding that Leonidov fraudulently induced her to marry him solely to obtain a "green card," and with no intention of consummating the marriage. The trial court was not compelled to believe Leonidov's testimony that he intended to "creat[e] a family" with Izmaylovskaya. One could quite reasonably infer from the evidence that he, in fact, married Izmaylovskaya with the undisclosed intent to only obtain immigration benefits. First, Leonidov left Izmaylovskaya shortly after their marriage, in March 2008, to return to the Ukraine. Then, he pleaded with Izmaylovskaya to take him back after he realized that he otherwise had no way to return to the United States. Furthermore, when Izmaylovskaya confronted Leonidov after overhearing his telephone conversation, which suggested a fraudulent intent, Leonidov quickly moved out and left no contact information.
The facts before us are indistinguishable from those presented in Liu, in which the Sixth Appellate District affirmed a judgment of nullity. (Liu, supra, 197 Cal.App.3d 143; see also In re Marriage of Rabie (1974) 40 Cal.App.3d 917, 922-923.) In Liu, the husband testified that he had married in Taiwan, returned to the United States, and been asked by his wife to apply for a "green card" to allow her entry to the United States. But, after he did and his wife joined him in his home, they never had sex. (Liu, supra, 197 Cal.App.3d at pp. 147-148.) On review, the court observed: "An annulment may be had for fraud where a wife harbors a secret intention at the time of the marriage not to engage in sexual relations with her husband. [Citations.] There is ample evidence in the record to support the trial court's finding [that the marriage was never consummated]. First, respondent testified that he never had sexual relations with appellant. [Citation.] Secondly, there is evidence here that appellant had an ulterior motive for entering into the marriage: namely, to obtain a green card to allow her to reside in the United States. Finally, the rapidity with which the marriage deteriorated after appellant 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 appellant entered the marriage to obtain a green card, and did not intend to engage in sexual relations with respondent. [¶] In her brief, appellant essentially reargues the evidence. Although there was conflicting evidence presented at trial, we are bound by the trial court's interpretation of the facts." (Liu, supra, 197 Cal.App.3d at p. 156.)
Leonidov cannot distinguish Liu by arguing that Izmaylovskaya ratified the voidable marriage by freely cohabiting with him after learning about the "other woman." (See Schaub v. Schaub (1945) 71 Cal.App.2d 467, 480; § 2210, subd. (d) ["[a] marriage is voidable . . . if . . . [t]he 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 cohabitated with the other as husband or wife"].) The evidence did not compel a finding of ratification. Izmaylovskaya testified that she had suspicions her husband was unfaithful, but she did not have "full knowledge of the facts constituting the fraud" until she overheard Leonidov's telephone conversation with another woman and discovered that he was physically capable of sex. Izmaylovskaya testified that Leonidov moved out immediately after she confronted him with what she had heard.
Leonidov also challenges the trial court's conclusion that he is not entitled to reimbursement, pursuant to section 2640, of separate property funds transferred into either Izmaylovskaya's separate bank account or a joint account, during the marriage.Specifically, he contends that substantial evidence does not support the trial court's conclusion, which also conflicts with the finding of fraud.
Section 2640 provides, in pertinent part: "(a) 'Contributions to the acquisition of property,' as used in this section, include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property. [¶] (b) In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. . . . [¶] (c) A party shall be reimbursed for the party's separate property contributions to the acquisition of property of the other spouse's separate property estate during the marriage, unless there has been a transmutation in writing . . . or a written waiver of the right to reimbursement. . . . ." (Italics added.)
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"Section 2640 was enacted in 1983 to reverse the holding in In re Marriage of Lucas (1980) 27 Cal.3d 808, 816, in which our high court held that a separate property contribution during marriage to the purchase or improvement of a family home was a gift and, absent an agreement, there was no right to reimbursement at the time of divorce. [Citations.]" (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1061, italics added & parallel citation omitted.) "However, 'the no-reimbursement rule . . . has been voided only insofar as the separate property contributions are within the category of "contributions to the acquisition of property" as defined in . . . section 2640.' [Citation.]" (In re Marriage of Nicholson & Sparks (2002) 104 Cal.App.4th 289, 294, fn. omitted.) Section 2640 does not provide for reimbursement of separate property funds spent on family living expenses. (In re Marriage of Lange (2002) 102 Cal.App.4th 360, 365.) "Whether the spouse claiming a separate property interest has adequately met his or her burden of tracing to a separate property source is a question of fact and the trial court's holding on the matter must be upheld if supported by substantial evidence. [Citations.]" (In re Marriage of Cochran, supra, 87 Cal.App.4th at pp. 1057-1058.)
Although Leonidov testified that his funds were used for "house payments," Leonidov did not present any evidence showing what amount of the total transferred, if any, qualified as a "contribution to the acquisition of property," entitling him to reimbursement under section 2640. In any event, Izmaylovskaya testified that she spent the funds, with Leonidov's knowledge, on family expenses, including Leonidov's own immigration expenses. The trial court explicitly stated that it found Izmaylovskaya's testimony "far more credible than [Leonidov's] version of events." We cannot second-guess the trial court's credibility determination. (Dart Industries, Inc. v. Commercial Union Ins. Co., supra, 28 Cal.4th at p. 1076; In re Marriage of Cochran, supra, 87 Cal.App.4th at p. 1056.)
Nor are we persuaded that the trial court's conclusion with respect to Leonidov's reimbursement claim necessarily conflicts with its finding of fraud. The fact that Leonidov's separate property was transferred into either a joint account or Izmaylovskaya's account, with his knowledge, does not compel a finding that he entered the marriage with good intentions. Rather, one could reasonably infer that Leonidov simply was willing to invest significantly in his scheme to obtain residency in the United States.
The trial court's findings are supported by substantial evidence.
IV. DISPOSITION
The judgment is affirmed.
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Bruiniers, J.
We concur:
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Jones, P. J.
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Needham, J.