Divorces are easy to come by. Annulments, not so much. Any seasoned family law attorney will tell you that prevailing on a petition for nullity of a marriage is predicated on good fortune. One must be blessed with a trinity of the right facts, the right law and the right judge.
A recent appellate case on annulment is In Re Marriage of Goodwin-Mitchell and Mitchell, (2019) 40 Cal.App.5th 232. This case brings to mind the wisdom of songstress Taylor Swift who cautioned, “I think I’ve seen this film before, and I didn’t like the ending….”
First, the law:
While there are only two grounds to dissolve a marriage in California; irreconcilable differences and incurable insanity, there are many grounds to nullify a marriage. These grounds are listed in Family Code section 2210 and include incest, bigamy, minority, prior existing marriage, unsound mind, fraud, force and incapacity.
The Goodwin-Mitchell case was decided on the ground of fraud. Family Code section 2210(d) provides that a marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud. However, the defrauded spouse may not obtain an annulment on the ground of fraud if he or she freely cohabited with the offending spouse after gaining full knowledge of the facts constituting the fraud. Fraud must be shown by clear and convincing evidence. The fraud must directly defeat the marriage relationship.
In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, sheds light on what constitutes fraud. Ramirez found that a fraudulent intent not to perform a vital marital duty must exist in the mind of the offending spouse at the time that the parties marry. Similarly, a fraudulent intent to be unfaithful held by a spouse at the time of the marriage may support an annulment. As a further example, In re Marriage of Liu, (1987) 197 Cal.App.3d 143, held that annulments could be based on a party’s concealed intent to marry with the sole intent of obtaining a green card.
And then the facts:
Carolyn Goodwin-Mitchell helped her first husband, a foreign national, obtain permanent residency in the United States. However, that marriage ended in divorce.
After her divorce from her first husband, Carolyn “met” online another gentleman, Michael, also from overseas. They “began dating over the internet.”
Michael had big plans and Carolyn was game once again to be swept off her feet by a stranger. Michael told Carolyn that “he wanted to move to the United States so he could live with her, open a restaurant, and join the U.S. Army.” In June 2015, Carolyn traveled abroad to meet Michael. They married during that first visit.
Carolyn returned to the U.S. and applied for a visa on Michael’s behalf. The visa application was approved in September 2016, and Michael joined her in November. Michael then had the decency to wait one full week before “soliciting call-girls, prostitution, and other women off of sites….”
In February of 2017, Michael was jailed following an incident of domestic violence. A restraining order was issued. While Michael was in jail, Carolyn discovered text messages he had sent to his mother, announcing that he would remain with Carolyn only until he got his green card. Carolyn also discovered texts between Michael and another woman, D., proclaiming his love for D. and revealing his plan to ditch Carolyn.
When Michael got out of jail, Carolyn had the restraining order lifted. She also allowed him to move back in with her. The happy couple resumed cohabiting.
Their newfound bliss was short-lived. In March 2017, Carolyn found out that Michael had slept in their home with another woman, Kim.
In June 2017, Carolyn filed for an annulment of the marriage on the basis of fraud. In the alternative, she sought a dissolution of the marriage. Still, the couple continued to live together and have intimate relations until November of 2017, when Carolyn asked him to move out. (One suspects Carolyn’s online endeavors had been fruitful again, and she hoped to find someone just as gentlemanly as Michael.)
At trial, Michael denied soliciting women on the internet. He said D. was “just a friend.” In response to Michael’s denial of cheating, Carolyn testified that she had taped his encounters with Kim. Carolyn testified that she had found Kim’s telephone number on Michael’s phone, along with telephone numbers for escort services. In rebuttal, Michael testified that Kim was “an acquaintance who stopped by the house” and had made advances and demanded sex during her visit.
The trial court noted that, in less than a year after coming to the U.S., Michael had “engaged in two relationships with women external to his marriage.” The trial court confirmed that “the law is clear that a spouse is entitled to more than mere cohabitation with the other and that…spouses owe one another a fiduciary duty of fidelity and duty to live with one another…” Concluding that this was “not the case here,” the trial court granted Carolyn’s petition for nullity.
And I didn’t like the ending…
The court of appeal held that the trial court erred when it granted Carolyn’s petition for nullity because “the couple continued to cohabit long after Carolyn discovered his infidelity.” The court cited the statutory bar of Family Code section 2210(d) under which a marriage may not be voided on the ground of fraud if “the party whose consent was obtained by fraud afterwards, and with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.” Accordingly, the appellate court reversed the judgment and remanded to the trial court for proceedings on Carolyn’s petition for dissolution.
In other words, when you actually have enough to get an annulment granted, run with it. Annulments are hard to achieve, even in the best of circumstances. Carolyn had a plethora of facts to support her claim of fraud. However, her own conduct after discovery of the fraud ultimately destroyed her claim. There’s a proverb that comes to mind: “fool me once, shame on you, fool me twice, shame on me.” And that’s how the appellate court saw it.