Opinion
NOT TO BE PUBLISHED
Reposted same date with corrections
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. SBF 067203, John M. Pacheco, Judge. Affirmed with directions.
Law Offices of Randall Billington and Randall Billington for Appellant.
Law Office of Edmund L. Montgomery and Edmund L. Montgomery for Respondent.
OPINION
Ramirez, P.J.
1. Introduction
Joy H., also known as Joy R (hereafter Joy H.), filed this action to annul her 14-year marriage with Tammy C., who also was known as John R. (hereafter Tammy C.). Tammy C. presented herself as a male, but was a biological female who had never had a “sex change.” Because Joy H. believed that she had entered a valid marriage with a man, she contends that she qualified as a putative spouse and had community property interest in the family home, which was purchased in Tammy C.’s name. The trial court granted the annulment pursuant to the parties’ stipulation, but rejected Joy H.’s argument concerning her interest in the family home.
Throughout this opinion we will refer to the parties by their legal names prior to their union. In referring to Tammy C., specifically, we also will use female personal pronouns to be consistent with her biological status.
On appeal, Joy H. claims that the trial court erred in finding that she was not a putative spouse. Joy H. also raises a number of other errors at trial, including the following: the court’s failure to order Tammy C. to provide financial disclosure; the court’s failure to order child support; the lack of service of process of Tammy C.’s modified response; the court’s inappropriate exclusion of certain items of evidence; the court’s failure to rule on her request for attorney’s fees for the child custody and visitation issues; and judicial bias. For the reasons discussed below, we reject Joy H.’s claims and affirm the court’s findings and orders.
2. Factual and Procedural Background
Joy H. and Tammy C. met while working for the same security company and, after forming a romantic relationship, lived together for about six months. Before the two met, Joy H. was married and Tammy C. was living with a former girlfriend. In May 1998, Joy H. and Tammy C. obtained a marriage license and had a wedding ceremony with family and friends. To obtain a California identification card for the marriage license, Tammy C. used an identification card with the name “John [R.]” that she had obtained in Arizona.
After the two were married, Tammy C. informed Joy H. that she was sterile and could not father a child naturally. They decided to artificially inseminate Joy H. with sperm from one of Tammy C.’s coworkers. The first attempt with a turkey baster failed. The second attempt by actual intercourse with the coworker also failed. The third attempt, which also was with a turkey baster, was successful. Joy H. gave birth to a baby girl (Daughter) in 1989.
Although the parties had a sexually active relationship, Joy H. maintained that she did not know that Tammy C. was a biological female. According to Joy H., Tammy C. was self-conscious about her obesity and did not permit Joy H. to touch or look at her during intercourse. Tammy C. used a silicone dildo. At some point, Joy H. found a two-headed dildo in the garage and asked Tammy C. about it. Several months later, Joy H. found another dildo in the garage and again confronted Tammy C.. Although Tammy C. initially told Joy H. that she was a male who had a transgender operation, she eventually admitted that she was a biological female who had not had an operation.
When Daughter was three years old, Joy H. left Tammy C. for about seven weeks. She later returned and decided to stay together for Daughter’s sake.
After renting an apartment for about eight years, Joy H. and Tammy C. decided to buy a house in Redlands. Tammy C. purchased the house in her name, because Joy H. was receiving welfare and property ownership would have affected her benefits. Joy H. signed an interspousal transfer deed.
After about another three years together, Joy H. and Tammy C. separated in July 2002.
On August 2, 2002, Joy H. filed a petition to annul or dissolve her marriage on the grounds of fraud and physical incapacity. The parties stipulated that their marriage was invalid based on the definition of marriage set forth in Family Code section 308.5. The parties also stipulated to joint legal and physical custody of Daughter. The parties did not agree, however, on the ownership of the property in Redlands.
The court held a trial on the disputed issues. After listening to testimony from Joy H., Tammy C., and other witnesses, the court found that Joy H. was not a putative spouse because she knew or should have known that Tammy C. was a biological female. The court found that, even based on her own testimony, any rights that Joy H. would have had as a putative spouse ended when she discovered that she was married to a woman, which, at the latest, occurred about three years after the marriage and eight years before the purchase of the property in Redlands. The court therefore concluded that Joy H. had no community property interest in the property.
3. Discussion
Although Joy H. raises a number of issues related to other procedural and technical defects at trial, we first will address the issue that was decisive at trial, namely, whether Joy H. qualified as a putative spouse for purposes of determining her interest, if any, in the property in Redlands. We briefly will address the remaining issues as necessary. As noted by Tammy C., most of the issues are presented without citations to the record or any relevant authority.
A. Putative Spouse
Joy H. specifically argues that the trial court erred in denying her putative spouse status because she knew or should have known that her marriage to another woman was invalid. Joy H. also argues that the court erred in finding that, even if she entered the marriage as a putative spouse, she lost her rights once she discovered that her marriage was invalid.
An innocent party to an invalid marriage may obtain relief as a putative spouse if the party believed in good faith that the marriage was valid. (Estate of DePasse (2002) 97 Cal.App.4th 92, 107; see also Code Civ. Proc., § 2251, subd. (a)(1).) A putative spouse is entitled to the division of property acquired during the union as community property or quasi-community property. (DePasse, supra, at p. 107; Code Civ. Proc., § 2251, subd. (a)(2).) The determination of the party’s good faith is tested by an objective standard. (DePasse, supra, at pp. 107-108; Centinela Hospital Medical Center v. Superior Court (1989) 215 Cal.App.3d 971, 975.) A subjective good faith belief alone, even by a party that is found credible and sympathetic, is insufficient. (Welch v. State of California (2000) 83 Cal.App.4th 1374, 1378.) Instead, under an objective standard, a claim of putative spouse status must be based on facts that would cause a reasonable person to believe in good faith that she was married and that the marriage was valid under California law. (DePasse, supra, at p. 108; In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, 721, 722-723.)
Under California law, only marriage between a man and a woman is recognized as a valid marriage. (Fam. Code, § 308.5.) Thus, in order to succeed in claiming putative spouse status, Joy H. must show that a reasonable person would have believed that she was married to a man although her partner was a biological female.
As noted by the court, it is inconceivable that Joy H. was unaware that Tammy C. was a biological female. They had lived together for about six months prior to marriage. During that time, they regularly engaged in sexual intercourse. Although Joy H. testified that she was unable to see Tammy C.’s genitalia because of the lighting and Tammy C.’s obesity, the court reasonably found that Joy H.’s testimony lacked credibility.
The record contains substantial evidence to support the court’s finding. (See In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 40.) Joy H. was aware that others referred to Tammy C. as “Tammy,” including their coworkers and Tammy C.’s mother. Joy H. noticed that Tammy C.’s paychecks were written to “Tammy [R.]” Also, during a confrontation with Tammy C.’s former girlfriend, the former girlfriend informed Joy H. of Tammy C.’s real gender. While Joy H. claims that she rationalized away these obvious clues, this evidence supports the court’s finding that Joy H. knew or should have known that Tammy C. was a biological female.
The court easily could have rejected Joy H.’s testimony to the contrary. Joy H. testified that, during sex with Tammy C., she occasionally grabbed the dildo and assisted Tammy C. with insertion. Joy H. had been married previously for about five years and regularly engaged in sexual intercourse with her former husband. She testified that she could not distinguish the silicone dildo from her former husband’s penis. The court found Joy H.’s testimony to be incredible.
In any event, the determination of whether a person qualifies as a putative spouse is determined by an objective standard. Even if Joy H. was oblivious of Tammy C.’s gender after months of living together and years of marriage, a reasonable person would not have had a good faith belief that Tammy C. was a biological male. (See Welch v. State of California, supra, 83 Cal.App.4th at p. 1379.)
Furthermore, Joy H. admitted that she was aware of Tammy C.’s true sex after confronting her repeatedly about the dildos in the garage. Therefore, even if Tammy C. was incredibly successful at concealing her true sex, the record shows that, by about 1992, Joy H. knew that Tammy C. was a biological female. Joy H. testified that she left Tammy C. for about seven weeks, but later resumed her relationship with Tammy C. for Daughter’s sake. When asked why she left the house, Joy H. explained, “[b]ecause by that time I knew that Tammy was Tammy.”
Tammy C. purchased the property in Redlands in 1999, several years after Joy H. allegedly discovered that her sexual partner was a biological female. Therefore, by the time that Tammy C. purchased the house, Joy H. knew that she was not in a valid marriage. Contrary to Joy H.’s argument, the law clearly establishes that, even if a person enters a marriage with a good faith belief that the marriage is valid, once that person discovers that the marriage is invalid, the person ceases to be a putative spouse. (In re Marriage of Monti (1982) 135 Cal.App.3d 50, 56; Lazzarevich v. Lazzarevich (1948) 88 Cal.App.2d 708, 718; see also Burks v. Apfel (10th Cir. 2000) 233 F.3d 1220, 1224.) Joy H. was not a putative spouse at the time that Tammy C. purchased the property in Redlands and, therefore, she has no community property or quasi-community property interest in the property.
We conclude that substantial evidence supported the court’s finding that Joy H. knew or should have known that Tammy C. was not a biological male before the wedding and long before Tammy C. purchased the property in Redlands. The court properly denied Joy H.’s claim of ownership to the house as a putative spouse.
B. Financial Disclosure
Joy H. argues that the trial court erred in failing to order Tammy C. to provide financial disclosure as required under Family Code sections 2104 and 2105.
Tammy C. initially notes that Joy H. fails to support her arguments with citations to the record and this court is not required to comb the record to substantiate an appellant’s claim of error. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) While this is true, Joy H.’s claim also fails on the merits.
We do not, however, agree with Tammy C.’s argument that the Family Code provisions do not require compliance in cases where the marriage is invalid under California law. By its plain language, the statute applies in all cases involving a “petition for dissolution or nullity of marriage or legal separation.” (Fam. Code, § 2104.) The statutory requirement, therefore, applies when a party petitions the court for an annulment, despite the fact that such cases always involve a potentially invalid marriage. The statute does not make any exceptions for cases where, as here, the parties have stipulated that the marriage was invalid. Even in such cases, there may be disputed issues regarding the parties’ interest in any property acquired during the relationship.
Family Code section 2104 requires that each party provide the other party with a preliminary declaration of disclosure identifying the party’s assets and liabilities. Family Code section 2105 requires that, before trial, each party also provide a final declaration of disclosure and a current income and expense declaration. If one party fails to comply with these requirements, the party in compliance may file a motion to compel compliance and provide further specification. (Fam. Code, § 2107, subd. (b)(1).) The party in compliance also may file a request for monetary sanctions. (Fam. Code, § 2107, subd. (c).)
In this case, in her trial setting conference statement filed on January 7, 2005, Joy H. noted that she had not yet received Tammy C.’s declaration of financial disclosure. On May 20, 2005, Joy H. filed a brief regarding Tammy C.’s obligation to provide financial disclosure and requested sanctions. As noted by Joy H., the court advised Tammy C. to comply. During the trial, on June 16, 2005, Tammy C. filed an income and expense declaration.
The record fails to show that Joy H. pressed the matter at trial after having received Tammy C.’s income and expense declaration. While Tammy C.’s financial disclosure may have been inadequate, Joy H. did not seek further specification or sanctions, as authorized by statute.
In any event, Joy H. has failed to show that Tammy C.’s delayed or inadequate disclosure materially affected some part of the court’s judgment. (See In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519, 528.) Although Joy H. claims that she was disadvantaged in preparing for trial, she does not identify how the court’s findings and orders were affected by Tammy C.’s noncompliance. The main issue at trial was whether Joy H. qualified as a putative spouse. Her request for the division of property as community property or quasi-community property hinged on her status as a putative spouse. Tammy C.’s noncompliance had no effect on the court’s decision on this issue. We conclude, therefore, that no prejudicial error resulted from Tammy C.’s failure to provide timely disclosure of her financial information.
C. Service of Process of Tammy C.’s Modified Response
On August 2, 2002, Joy H. filed a petition seeking either an annulment or a divorce. Apparently, there were two versions of Tammy C.’s response. Joy H. received a version with the box checked for “dissolution of marriage.” On June 30, 2004, the court filed a version with the box checked for “nullity of marriage” and the box crossed out for “dissolution of marriage.” Joy H. argues that the court prejudicially erred in proceeding with the trial despite this irregularity. While Tammy C. should have served Joy H. with a copy of the modified response, the effect of this oversight did not amount to a miscarriage of justice. (Cal. Const., art. VI, § 13.) Based on the facts and the parties’ stipulation on December 10, 2002, that the marriage was invalid, there was no dispute that the appropriate relief was an annulment and not a divorce.
D. Admission of Evidence
Joy H. argues that the trial court erred in limiting her testimony and the testimony of Tammy C.’s current girlfriend, Esmeralda Lukenbill. Because there are no citations to the record, it is not entirely clear to which evidentiary rulings Joy H.’s complaint is directed. Without support from the facts or the law, she asserts that the court erroneously excluded her testimony that she identified Tammy C. as her husband in public, Tammy C.’s testimony concerning her income and earning capacity, and Lukenbill’s testimony that she believed Tammy C. was a biological male.
Generally, trial courts are afforded broad discretion in ruling on the admissibility of evidence, and their rulings will be upheld unless there is a clear showing of a prejudicial abuse of discretion. (See Jones v. Lodge at Torrey Pines Partnership (2007) 147 Cal.App.4th 475, 514.) Joy H. has failed to make the requisite showing and our review of the record has revealed no such error. For example, Lukenbill testified that she assumed that Tammy C. was Daughter’s biological father. Joy H.’s trial attorney continued to press Lukenbill about Tammy C.’s gender. He asked if she was aware of any reason why she would not be Daughter’s father. Lukenbill replied “no.” He then asked if she had contemplated whether her relationship with Tammy C. might lead to marriage. Tammy C.’s attorney objected to the question as irrelevant and the court sustained the objection. The court’s ruling was not an abuse of discretion. Joy H.’s attorney already had established that Lukenbill assumed that Tammy C. was a biological male. The court reasonably prevented Lukenbill from discussing the prospects of any future marriage with Tammy C.. Such testimony would have been irrelevant and speculative.
In this case, Joy H. presented evidence that Tammy C. was able to successfully conceal her gender from the public and, to some extent, from her romantic partners. The court’s decision was not based on the lack of such evidence. The court’s decision, instead, was based on the implausibility of Joy H.’s ignorance of Tammy C.’s true gender after months and years of living with her in an intimate relationship. Even if Lukenbill was deceived, the record shows that Tammy C.’s romantic partners eventually discovered the truth, as was the case with both her former girlfriend and Joy H. herself.
We conclude that Joy H. has failed to show any evidentiary error.
E. Child Support
Joy H. claims the trial court erred in failing to order child support. In her trial brief, she listed the determination of child support as one of the issues for trial. At trial, however, as noted by Tammy C., the parties agreed that the only disputed issue was whether Joy H. qualified as a putative spouse. The parties’ stipulation on child custody did not include any provision for support. The court’s ruling also did not include a child support order.
Both parents have a continuing obligation to support their children. (Fam. Code, §§ 3910, 4053.) When the issue is before the court, the court has the authority to order a parent to pay child support and retains jurisdiction to modify its order. (See, e.g., Fam. Code, §§ 3600, 4000; In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469.) Parents do not have the right to abridge their child’s right to support. (See Fam. Code, § 3556, 3585; In re Marriage of Bereznak (2003) 110 Cal.App.4th 1062, 1069; In re Marriage of Lusby, supra, at p. 469.) Hence, the form for dissolution or annulment includes the statement: “If there are minor children born to or adopted by the Petitioner and Respondent before or during this marriage, the court will make orders for the support of the children.”
Because this was not done, child support remains a pending issue. (See In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1040.) The court must determine whether Joy H. or Tammy C. had an obligation to pay child support and, if so, the amount of that support. While there is no need to reverse the court’s ruling on the other issues that were stipulated by the parties or decided by the court, we will remand the case to allow the court to make a determination regarding child support to ensure that Daughter is receiving adequate support.
F. Attorney’s Fees
Joy H. claims the trial court erred in failing to award attorneys’ fees on the child custody and visitation issues. As with her other claims, Joy H. fails to support her argument with citations to the record or relevant authority. Although attorney’s fees was among the issues to be determined by the court, Joy H. fails to cite to the record to show that she specifically asked the court for an award of attorney’s fees for the work performed in litigating the child custody and visitation issues. After deciding the issue of Joy H.’s putative spouse status against her, the court ordered the parties to bear their own attorney’s fees and costs. Joy H. did not object to the court’s ruling and did not request an additional award of fees specific to the child custody issues. Joy H. has failed to preserve this issue for review. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)
G. Judicial Bias
Joy H. claims that that the court demonstrated bias toward her or her attorney in making certain evidentiary rulings, other unfavorable decisions, and comments during the course of the trial. Joy H. again fails to include citations to the record or any relevant authority. Her entire argument is comprised of a list of 14 separate instances of bias.
As noted by Tammy C., Joy H.’s list of complaints is not a legal argument. Most of her complaints concern unfavorable rulings, which alone are insufficient to demonstrate judicial bias. (See Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 305.) From our review of the record, there was no indication that the court’s rulings or comments reflected a predetermined disposition against her for some unjustified reason or another. (See Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 249.) Also, at trial, Joy H. made no effort to voice her complaints and afford the court an opportunity to correct any alleged errors or recuse itself. (See Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218.) On appeal, Joy H.’s brief on this issue is woefully inadequate, without a single reference to the record, even following the use of quotations.
Joy H. has failed to show that the court was biased against her.
4. Disposition
We affirm the family court’s findings and order. We remand the case, however, to allow the court to determine the appropriate amount of child support, if any. Tammy C.’s request for sanctions on appeal is denied. Both parties shall bear their own costs.
We concur: McKinster, J., Miller, J.