Opinion
A102501.
11-25-2003
In re Marriage of XIAO LING LU and VICTOR TU. XIAO LING LU, Appellant, v. VICTOR TU, Respondent.
Xiao Ling Lu in propria persona appeals from the judgment annulling her marriage to Victor Tu. (Fam. Code, § 2210, subd. (d) [consent obtained by fraud].) We affirm.
I.
Appellant Lu filed a petition for dissolution of the marriage in March 2002. In response, respondent Tu requested that the marriage be found a nullity based on fraud. Appellant requested that the fraud issue be tried first, the request was granted, and the matter was tried at hearings in August and November 2002. Appellant was represented by counsel at trial; respondent appeared in propria persona.
Respondent, a United States citizen who resided in the Bay Area, testified that the parties were married in China on February 17, 2000, but never lived together thereafter. He said that the marriage was arranged by appellants brother, Horace Lu. He went to China to meet appellant in response to an advertisement placed by Horace, who handled the documentation for the marriage. He said that he and appellant liked each other when they met, that he wanted to take on a wife, and that he expected to receive a dowry from the marriage. He returned to the United States after two weeks in China, and petitioned to have appellant enter the United States as his spouse, with the expectation that appellant would join him here within a year.
Respondent thought that appellant immigrated to the United States in 2001; he did not know the date because she went to live with Horace after she arrived. After appellant arrived in the United States, respondent discovered that she had married him only to obtain a "green card." He said that when he insisted that appellant come live with him, she and Horace offered to pay him $15,000. He said that he and appellant never had sexual relations, and that he would not have married her if he had known that she would not live with him as his wife. In June 2001, he wrote a letter to the Immigration and Naturalization Service reporting that his marriage to appellant was a sham, and charging appellant and Horace with fraud. These allegations were retracted in a November 2001 letter from respondent to the INS, but he said that appellant wrote this letter.
Appellant testified that she was introduced to respondent through Horace, that Horace described respondent as a friend, and that she never heard of any deal between Horace and respondent. She said that Horace picked her up at the airport when she arrived in the United States in January 2001, but that she went to live with respondent the next day. After a month she began auditing classes at San Jose State; during that time, she lived with Horace during the school week and returned to respondents home on the weekends. After she stopped attending school around May 2001, she lived full-time with respondent until they separated in February 2002, after an incident of domestic violence when police were called to their residence. She said that she and respondent had sex; she described a scar on his back, and he admitted having the scar.
After respondent testified that appellant had never been in his house or bedroom, appellant produced photographs of them in bed in pajamas. Respondent said that these photos were staged to bolster appellants position with the INS. He had the same explanation for photos taken of them at tourist attractions, and at his nephews high school graduation. He acknowledged going to Reno with appellant in November 2001 and staying with her in one room, but said that she had slept on the floor on that occasion. He admitted signing a police report for the February 2002 incident stating that he had grabbed appellant by the neck, but said he had not understood what he was signing. He admitted executing a post-marital agreement he had commissioned stating that "the parties entered into a legal marriage under the laws of the State of California on February 17, 2000." Appellants counsel argued to the court that respondents testimony was not credible.
The court entered its order finding the marriage a nullity on March 5, 2003. On April 2, 2003, appellant, now in propria persona, filed a motion to present new evidence in support of her case. The motion identified various alleged lies in respondents testimony and contradictions in his evidence. The motion on the new evidence was heard and denied on May 8, 2003. The court noted that the motion was untimely insofar as it sought reconsideration of the annulment order, that appellant had been represented by counsel, and that she had offered no satisfactory explanation for failure to present the additional evidence at trial.
Judgment finding the marriage a nullity due to fraud was filed on April 29, 2003. Appellant has filed a timely appeal from the judgment and an opening brief. Respondent has filed no brief on appeal.
II.
A marriage may be judged a nullity 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 cohabited with the other as husband or wife." (Fam. Code, § 2210, subd. (d).) Immigration fraud like that alleged here will support an annulment. (E.g., In re Marriage of Liu (1987) 197 Cal.App.3d 143, 155-156 [husband testified that he and wife never had sex; evidence supported inference that she married to obtain a green card]; In re Marriage of Rabie (1974) 40 Cal.App.3d 917, 921-922 [marriage for green card annulled].)
Appellant cites no law, but does advance a legal argument insofar as she contends that the evidence does not support the judgment. However, appellant may not realize the limits of appellate review for sufficiency of the evidence. Appellant seems to believe that she can have her case retried on appeal, but that is not the function of an appellate court. We do not weigh the evidence to determine which side, in our opinion, has the most persuasive case. That is the trial courts job. Once the trial court has made its decision, we cannot reverse that decision unless there was no substantial evidence to support it. While the word "substantial" might be understood to refer to a "large quantity," it has a different meaning in this context. "Substantial" evidence simply means evidence that plausibly proves a partys case. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 363, 367, pp. 413-414, 416-417.) "The testimony of one witness worthy of belief," for example, "is sufficient to prove any fact." (BAJI No. 2.01.)
Here, respondent testified that he married appellant with the expectation that they would live together as man and wife, and to that end he arranged for her to enter and reside in the United States, but that she declined to cohabitate with him and they never had sexual relations. This testimony was substantial evidence supporting annulment of the marriage for fraud. (In re Marriage of Liu, supra, 197 Cal.App.3d at pp. 155-156; In re Marriage of Rabie, supra, 40 Cal.App.3d at pp. 921-922.)
Appellant told a different story, and in her brief she recounts evidence that was (or might have been) presented at trial in an attempt to show that respondent should not have been believed. Appellant had potentially persuasive, but not conclusive, evidence for her position. Thus, as stated in In re Marriage of Liu, supra, 197 Cal.App.3d at p. 156, the trial courts decision cannot be disturbed: "Although there was conflicting evidence presented at trial, we are bound by the trial courts interpretation of the facts. [Citations.] On appeal, we have no power to weigh or judge the effect of evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence. That is the province of the trial court. [Citation.]"
III.
The judgment is affirmed.
We concur, Reardon, J., Rivera, J.