Opinion
A151630
05-11-2018
In re the Marriage of SUJATHA ARUNACHALAM and AJAY KUMAR MITTAL. SUJATHA ARUNACHALAM, Respondent, v. AJAY KUMAR MITTAL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HF16828730)
Ajay Mittal (Mittal) appeals from an order denying his request that his marriage be declared a nullity. We affirm.
BACKGROUND
On August 23, 2016, Sujatha Arunachalam filed a petition for dissolution of marriage. The petition alleged that Arunachalam and Mittal were married on August 17, 2011 and separated on August 22, 2016, and that they had one child. Arunachalam was represented by counsel.
On September 27, Mittal filed a response and a request for nullity, based on "fraud." Mittal was also represented by counsel.
On January 27, 2017, the case came on for a long cause hearing on the issues of custody and visitation, child and spousal support, and annulment. Both sides were represented by counsel. After brief colloquy, it was determined that the issue of child support would be decided at a later date, and the issues were narrowed to two: nullity and spousal support. Those issues were the subject of testimony that day and on March 17, on which date Mittal called Arunachalam as an adverse witness. Arunachalam testified how she met Mittal, which was through a matrimonial service on which they had both registered, she in India, he in the United States. In fact, it was her parents who first responded to the ad on the service, who thereafter discussed with her the "matrimonial interest" expressed by Mittal. In August 2011, Mittal visited India. Her parents talked to him first, and apparently "finalized" a marriage proposal, following which Arunachalam met Mittal for the first time.
They were married on August 17. The marriage was a traditional Hindu ceremony, before family and friends, including Mittal's mother. Arunachalam and Mittal consummated the marriage within the days following the ceremony, staying in a hotel together, a hotel which Mittal had secured upon his arrival to India.
Both Arunachalam and Mittal had children from previous relationships, Arunachalam's a 13-year-old daughter. The understanding was that Arunachalam and her daughter would come to the United States to be with Mittal, but it would take some two years before Arunachalam could get a passport and exit visa for her daughter. During this time, Mittal would periodically visit India and stay with Arunachalam, sharing the same bed. He testified he visited three or four times, staying for three or four weeks at a time.
In August 2013, Arunachalam and her daughter came to the United States, moved in with Mittal in his residence in Dublin, and continued to live with Mittal through mid-August 2016. They obtained legal residency and with the support of Mittal eventually received permanent green cards. However, within several months of their arrival, the relationship between them began to sour, with Mittal becoming more verbally abusive and controlling. It got to the point that Mittal exhibited abusive behavior towards Arunachalam and her daughter, and Mittal was twice arrested for physical assault, on November 7, 2015 and May 27, 2016.
On August 22, 2016, the parties separated. Arunachalam filed for dissolution of marriage the next day, and in September 2016, Arunachalam and her daughter moved out of the Dublin home and began to live separately from Mittal.
On the afternoon of March 17, counsel made their closing arguments on Mittal's claim of nullity, which, as noted, was based on fraud. As to the applicable law, Witkin's description nicely sums it up:
"A marriage is voidable and may be adjudged a nullity if, at the time of the marriage, '[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 cohabited with the other as his or her spouse.' (Family C. 2210(d).) . . . .
"But to justify a judgment of nullity there must be more than material fraud in the inducement sufficient to avoid a contract. The misrepresentation or concealment must be 'vital to the relationship.' (See Mayer v. Mayer (1929) 207 [Cal.] 685, 695, . . .; Bragg v. Bragg (1934) 219 [Cal.] 715, 720, . . .; In re Marriage of Meagher & Maleki (2005) 131 [Cal.App.4th] 1, 7, . . . [annulments for fraud are generally granted only in cases where fraud relates in some way to sexual or procreative aspects of marriage]; 15 A.L.R.3d 759 [concealment or misrepresentation of prior marital status]; 44 A.L.R.3d 972 [false representations or concealment as to religion]; 66 A.L.R.3d 1282 [spouse's secret intention not to abide by written antenuptial agreement relating to financial matters] . . . .
"The defense of cohabitation 'with full knowledge of the facts constituting the fraud' appears to be very much a matter of the trial judge's discretion. In Handley v. Handley (1960) 179 [Cal.App.2d] 742 . . . plaintiff waited over 6 years to bring his action, and defendant contended that he lost his right by cohabitation (they shared the same quarters on brief vacations). Because 'the statute places no limitation on the time the free cohabitation must endure, the matter rests within the sound discretion of the trial court, as does the question of when the plaintiff has "full knowledge." ' (179 [Cal.App.2d] 750.)" (11 Witkin, Summary of Cal. Law (11th ed. 2017) Marriage, § 175, p. 223.)
Following the argument, the court took a recess, and then reconvened, at which time it announced its decision. It was as follows:
"The Court has carefully observed and examined the testimony of both parties on direct and cross-examination and in response to the Court's occasional questions. These observations included, among other things, the parties' demeanor, their ability to recollect and describe past events, the completeness of their responses, and whether their answers were direct and clear or evasive and argumentative.
"As between Petitioner and Respondent, Petitioner was the more credible witness. Respondent's demeanor was borderline hostile. He appeared defensive and his testimony was contradicted by his own words in a message that he wrote to Petitioner, specifically the testimony that he had never made a disparaging remark about Petitioner's daughter which was clearly evident in the message that he sent her.
"Petitioner also suffered from occasional defensiveness but, on the whole, her testimony was candid and complete. She appeared to be generally emotional and, more importantly, truthful when recounting facts about how she was treated when she came to the United States and the things which led to the problems with her marriage.
"Respondent argues that Petitioner's motives for the marriage were based on fraud, specifically that her motivation was for financial gain or to obtain a green card.
"In support of this contention, Respondent points to the fact that Petitioner began staying in another room in the residence rather than in Respondent's room. Petitioner indicates in her testimony that this did not happen immediately but occurred after abusive behavior by Respondent. Respondent indicates that it happened almost immediately. As indicated, the Court finds Petitioner's testimony more credible.
"But regardless of when it occurred, the parties continued to engage in sexual relations and the Court does not find it to be all that unusual for married couples to stay in separate rooms during the night. Oftentimes this occurs because one spouse snores and is disturbing the other spouse, or one spouse moves a lot during the night and hits or kicks the other spouse. So there's nothing unusual about a spouse staying in another room, and so this does not lend any credence to the accusation that Petitioner's motivation was based on fraud.
"In regards to the financial motivation, Petitioner did indicate that her parents asked for proof of Respondent's income. The Court does not find this unusual either. I think that it is—it is actually prudent to determine whether or not the person you are planning on spending the rest of your life with is somebody who is financially able to sustain a marriage. So that does not indicate to the Court that Petitioner's motivation was based on financial gain.
"In addition, Petitioner testified that when she got here and began working, she was paying for the household items. And so, on the whole, the Court does not find that there was any financial motive on the part of the Petitioner in entering into this marriage.
"The second claim, that her motivation was to gain a permanent green card, was testified to by Respondent. The permanent green card was obtained in 2014. This petition for dissolution was not filed until 2016, two years later. If Petitioner's primary motivation was to obtain a green card, it does not seem likely that she would have waited around two more years before seeking a dissolution. So the Court does not find that that ground is credible either.
"And I think, importantly, this e-mail that Respondent actually pointed out to Respondent—I mean to Petitioner, that she e-mailed Respondent that she still misses him even after the petition was filed, I think that speaks volumes as to what her emotional state is, what her thoughts are, what her hopes were in regard to marrying Respondent. She was upfront about still having feelings for Respondent but it is clear to the Court that Respondent did not treat Petitioner the way she had anticipated when she agreed to enter into this marriage.
"So the Court does not find any basis of fraud in this marriage and the request for an annulment is denied.
"The Court will also state for the record that the Court agrees with Petitioner that even if the Court had determined that there was fraud as the motivating factor in entering into this marriage, that this was waived under 2210, subdivision (d), in that if everything happened the way Respondent claimed it did, that she immediately began living in a separate bedroom when she arrived and was not conducting herself as one would expect a wife to act, he waited around another three years until she took it upon herself to file for a petition of dissolution.
"And so the Court finds that even if there was fraud on the part of Petitioner, which it does not, that this was waived by Respondent."
On March 17, a minute order was entered that provides in pertinent part as follows:
"The court finds Petitioner's testimony to be the more credible witness.
"The court does not find there was financial motive.
"If Petitioner's motive was to obtain a green card, she didn't file for a divorce until 2 years later. The court does not find that ground is credible.
"Respondent did not find any basis of fraud in this marriage.
"Respondent's request for nullity of marriage is denied." A formal order was entered that same day.
On June 9, now representing himself, Mittal filed a notice of appeal from the order.
Mittal's notice of appeal states that he is appealing the order entered "March 30th 2017." However, his briefs say the appeal is from the March 17 order. --------
DISCUSSION
Mittal has filed an 11-page opening brief whose "Statement of Facts" is two paragraphs, totaling 11 lines. This is followed by eight pages of claimed "Argument" that, to the extent it addresses any of the facts in the case, sets forth those "facts" as he would have them, favoring his side of the story—and ignoring all the facts favoring Arunachalam. Such is improper. And it cannot satisfy Mittal's burden on appeal, which fails for many reasons.
The most fundamental principle of appellate review is that a "judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because error is never presumed, it is every appellant's duty to show it in the record the appellant produces before the reviewing court. (E.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
An appellant challenging the sufficiency of the evidence to support a finding or a judgment is required to state in the opening brief all evidence pertinent to that point. If not done, the reviewing court may treat the issue as waived. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; see Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 ["Where a party presents only facts and inferences favorable to his or her petition, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' "].) In sum, "an attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Another principle is that where, as here, there is no statement of decision, we must "assume that the trial court made whatever findings are necessary to sustain the judgment." (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793; accord, Hall v. Municipal Court (1974) 10 Cal.3d 641, 643; Gray v. Gray (1921) 185 Cal. 598, 599.)
Finally, and apropos Mittal's contention at oral argument, we defer to the trial court's determination of credibility. (In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1175.)
Each, and all, of those principles are applicable to Mittal's brief here. And they are fatal to his appeal.
DISPOSITION
The order is affirmed. Arunachalam shall recover her costs on appeal.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.