Opinion
No. 1 CA-CV 19-0667 FC
05-04-2021
In re the Matter of: Robert WISNIEWSKI, Petitioner/Appellee, v. Izabela Anna DOLECKA, Respondent/Appellant.
Riebesehl Family Law Offices, Phoenix, By Gregory A. Riebesehl, Counsel for Petitioner/Appellee Sirard Law Firm, Peoria, By Lisa M. Sirard, Counsel for Respondent/Appellant
Riebesehl Family Law Offices, Phoenix, By Gregory A. Riebesehl, Counsel for Petitioner/Appellee
Sirard Law Firm, Peoria, By Lisa M. Sirard, Counsel for Respondent/Appellant
Chief Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.
The Honorable Maurice Portley, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution.
SWANN, Chief Judge:
¶1 The superior court entered an annulment decree based on its conclusion that the petitioner, Robert Wisniewski ("Husband") proved by a preponderance of the evidence that Izabela Anna Dolecka ("Wife") defrauded him into entering the marriage. We vacate the decree and remand because the court applied an incorrect burden of proof. We hold that fraud justifying annulment must be proved by clear and convincing evidence.
FACTS AND PROCEDURAL HISTORY
¶2 Husband petitioned for annulment of the parties’ marriage in 2018, alleging that Wife had "defrauded [him] into marriage for the sole reason of receiving legal residency status in the United States." Wife opposed annulment but requested dissolution.
¶3 After trial, the court determined that Husband bore "the burden of proof by a preponderance of the evidence to demonstrate that the fraud occurred," and that he had met that burden. The court also awarded Husband a portion of his attorney's fees and costs.
¶4 Wife moved to alter or amend the annulment decree under ARFLP ("Rule") 83 on several grounds, including that the court should have required Husband to prove his fraud allegations with clear and convincing evidence. The court denied relief. Wife appeals.
DISCUSSION
¶5 We review the denial of Wife's Rule 83 motion for abuse of discretion. Pullen v. Pullen , 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909, 912 (App. 2009). A court abuses its discretion if it applies an incorrect rule of law. Id. The appropriate burden of proof is a question of law. American Pepper Supply Co. v. Fed. Ins. Co. , 208 Ariz. 307, 309, ¶ 8, 93 P.3d 507, 509 (2004).
¶6 The superior court "may adjudge a marriage to be null and void when the cause alleged constitutes an impediment rendering the marriage void." A.R.S. § 25-301. For example, the court may annul a marriage based on "false representation or concealment when the false representation or concealment is such that the fundamental purpose of the injured party in entering into the marriage is defeated." Means v. Indus. Comm'n , 110 Ariz. 72, 74, 515 P.2d 29, 31 (1973).
We note that not every form of fraud provides a basis for annulment of a marriage. Generically, many forms of dishonesty that could be characterized as "fraud" might prompt a party to seek dissolution of a marriage. But annulment is only an available remedy "when the cause alleged constitutes an impediment rendering the marriage void." A.R.S. § 25-301. The question whether the subject of the fraud alleged in this case would support annulment—even if proven by clear and convincing evidence—is not before us in this appeal.
¶7 Wife first contends that she was unfairly surprised at trial because Husband "failed to plead the elements of fraud" in his pretrial and resolution management conference statements. But he pled fraud in his petition—and the family law rules of procedure, unlike the civil rules, do not require that fraud be pled with particularity. Wife relies on ARFLP 76.1(f)(6) and (7), which require that each party's pretrial statement include "detailed and concise statements of contested issues of fact and law" and "a position on each contested issue." But Husband did allege in his pretrial statement that Wife "only married him to obtain legal status in the United States," and Wife did not show that she suffered any prejudice because of any alleged inadequacies in the pretrial statement. See ARFLP 86 ("At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."). We therefore reject Wife's contention that she was entitled to relief based on unfair surprise.
¶8 Wife next contends that the superior court erred by not requiring Husband to prove fraud by clear and convincing evidence. "The clear and convincing standard is reserved for cases where substantial interests at stake require an extra measure of confidence by the factfinders in the correctness of their judgment, though not to such degree as is required to convict of a crime." State v. Renforth , 155 Ariz. 385, 387, 746 P.2d 1315, 1317 (App. 1987). The standard applies in most civil fraud cases because of "the value society attributes to untarnished reputation." Id. ; Powers v. Guaranty RV, Inc. , 229 Ariz. 555, 562, ¶ 27, 278 P.3d 333, 340 (App. 2012).
¶9 Husband contends that the common-law standard of proof for fraud does not apply in annulment and dissolution proceedings because those are statutory actions. To be sure, in a different statutory context—consumer fraud—fraud need not be proved with clear and convincing evidence. Dunlap v. Jimmy GMC of Tucson, Inc. , 136 Ariz. 338, 343–44, 666 P.2d 83, 88–89 (App. 1983). But consumer fraud, despite its name, serves as a poor analogy. The consumer fraud statutes do not require the same elements as common law fraud—and, indeed, afford broader relief than that available under a common law fraud action. Cearley v. Wieser , 151 Ariz. 293, 295, 727 P.2d 346, 348 (App. 1986). Unlike the consumer fraud statutes, the annulment statutes do not establish a unique fraud standard requiring application of a lower burden of proof. See A.R.S. §§ 25-301, -302(A).
¶10 The superior court's reliance on Means v. Industrial Commission , 110 Ariz. 72, 515 P.2d 29 (1973), and Jackson v. Industrial Commission , 121 Ariz. 602, 592 P.2d 1258 (1979), was misplaced—neither case addressed the burden of proof for a party seeking annulment based on fraud. But we find persuasive Wife's citations to Irving v. Irving , 122 Nev. 494, 134 P.3d 718, 719 (2006), and In re Marriage of Turfe , 23 Cal. App. 5th 1118, 233 Cal.Rptr.3d 315 (2018), both of which held that a petitioner seeking to annul a marriage based on fraud must present clear and convincing evidence. See Hodai v. City of Tucson , 239 Ariz. 34, 42 n.8, ¶ 25, 365 P.3d 959, 967 (App. 2016) ("Arizona courts are not bound by precedent from other states, [but] our courts may look to cases from other jurisdictions as persuasive authority."). In Irving , the Nevada Supreme Court interpreted a Nevada statute expressly identifying fraudulently obtained consent as a ground for annulment. 134 P.3d at 720–22. Citing the "strong public policy favoring marriage," the court concluded that "courts will generally not annul a marriage without clear and convincing evidence." Id. at 721. Similarly, in Turfe , the California Court of Appeals emphasized that "the state is particularly interested in seeing that no marriage is declared void as the result of fraud unless the evidence in support thereof is both clear and convincing ," and the fraud is "such fraud as directly affects the marriage relationship and not merely such fraud as would be sufficient to rescind an ordinary civil contract." Id. at 1125, 233 Cal.Rptr.3d 315 (citation omitted). Like Nevada and California, Arizona recognizes a "very powerful" public policy favoring marriage. Roy v. Industrial Comm'n , 97 Ariz. 98, 100, 397 P.2d 211 (1964). Further, similar to Turfe , our Arizona supreme court established in Means that annulment based on fraud is warranted only "when the false representation or concealment is such that the fundamental purpose of the injured party in entering into the marriage is defeated." 110 Ariz. at 74, 515 P.2d at 31. ¶11 We hold that fraud in an annulment case must be proved by clear and convincing evidence. We therefore vacate the annulment decree and remand to allow the superior court to determine whether Husband met that burden. See Yano v. Yano , 144 Ariz. 382, 384, 697 P.2d 1132, 1134 (App. 1985) ("[I]t is the trial court and not this court that draws the distinction between evidence which is clear and convincing and evidence which merely preponderates."). We also vacate the superior court's award of attorney's fees and costs to Husband. The court awarded fees and costs under A.R.S. §§ 25-324 and 25-415. But in justifying the award under § 25-324, the court relied in part on its finding of fraud under the incorrect evidentiary standard. And in justifying the award as a sanction under § 25-415, the court erred because none of the grounds for sanctions under that statute existed—legal decision-making and parenting time were not at issue as required for an award under § 25-415(A) and (B), and the court never entered an order under ARFLP 65 as required for an award under § 25-415(C).
CONCLUSION
¶12 We vacate the annulment decree. On remand, the court should determine whether Husband proved his fraud allegations by clear and convincing evidence, and whether the allegations themselves are capable of supporting annulment. The court also may determine whether attorney's fees are warranted under § 25-324. We decline to award attorney's fees on appeal. Wife is entitled to recover her costs on appeal upon compliance with ARCAP 21.