Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VD057393, Daniel S. Murphy, Judge. Affirmed.
Long Beach Law, Inc., Rebecca J. Birmingham and A. Stephanie Loftin for Appellant.
Law Offices of Barry T. Ward and Barry T. Ward for Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Angelina Nillo appeals from the judgment of dissolution and denial of her request for nullification of her marriage to Bonifacio A. Nillo. She contends the trial court erred in finding Bonifacio’s alleged pedophilia was insufficient to support an annulment and in finding his behavior was “open and notorious” such that her inaction constituted a waiver or acquiescence. She further contends the court erred in precluding expert testimony “on the persistence and incurable nature of pedophilia.” We reject these contentions and affirm.
We refer to the parties by their first names solely for purposes of clarity and intend no disrespect.
Pedophilia is “[t]he act or fantasy on the part of an adult of engaging in sexual activity with a child or children.” (American Heritage Dict. (4th ed. 2000), as retrieved from http://dictionary.reference.com/browse/pedophilia [as of Dec. 8, 2008].
RELEVANT BACKGROUND
Angelina and Bonifacio met in 1982 and married in 1984. At the time Angelina and Bonifacio married, Angelina’s daughter, G, was six years old. Bonifacio had met G approximately four times before the couple married, but the child did not live with them for the first four months of their marriage.
Bonifacio made no promises to Angelina before he proposed to her.
At the time they married, Angelina believed Bonifacio loved her. She married him because: “We loved each other. Besides, I want to provide a father for my daughter because I was the only mother to raise my child.”
The Nillos had had sex twice before getting married and had sex regularly for the first five years of their marriage. The frequency of their relations decreased over time. Angelina learned at some point that Bonifacio’s sexual problems with her may have been related to his diabetes.
In 1986, Bonifacio was arrested for “touch[ing] a [cop’s] butt in the movie house.” Bonifacio did not discuss the specifics of the incident with Angelina.
In July 2004, Angelina won approximately $4.2 million from a slot machine in Las Vegas. At about the same time, Angelina discovered a receipt of Bonifacio’s that led her to conclude he was gay. She believed it showed Bonifacio was supporting another man. She continued to live with Bonifacio until December 2004.
In January 2005, Bonifacio filed a Petition for Dissolution of Marriage in Los Angeles County Superior Court. Among other things, he sought a distribution of her “considerable gambling winnings in the amount of approximately $30 million[.]” In February 2005, Angelina filed a Response and Request for Nullity of Marriage based on fraud, pursuant to Family Code section 2210, subdivision (d). Bonifacio successfully moved to have G added as an indispensable party to the litigation in May 2006 on the grounds that Angelina had transferred community funds as a gift to G without Bonifacio’s consent.
On June 4, the trial court bifurcated the trial, with the marriage or annulment issue to be heard before the property issues. On June 8, Angelina’s counsel moved to continue the trial and to have Omar Minwalla appointed as an expert witness on pedophilia. Counsel stated she understood from the conference in chambers on June 4th that the court “d[id] not see the link between what happened during the marriage to more or less the predereliction [sic] of the allegations the plaintiff was a pedophile prior to the marriage.” Counsel stated she found an expert “on that very issue,” and that the expert would assist the court in “talking about the age of a pedophile, there are apparently different designations of that where a pedophile is only attracted to children of the age up to puberty to 12 years old.” She continued:
Angelina learned in January 2005 and again in July 2005 that Bonifacio had allegedly sexually molested her daughter, G. On June 4, 2007, she learned that her two nephews, M and R, also accused Bonifacio of sexually molesting them when they were children.
“The behaviors of a person who is a pedophile with regards to specifically . . . obtaining access to children, including winning the trust of the child’s mother or marrying a woman with an attractive child and that the onset of this disorder is generally discovered in their teens.
“It is not a preference. It is an orientation that the possible early causes through research with regards to having their own issues of child sexual abuse or trauma, for instance, a parent or grandparent beating the child so severe of physical abuse, those types of things.
“. . . There’s a[] diagnostic manual, the DSM IV, that describes pedophilia; it’s something that is recognized in the medical psychological community and has been for years and years. And the hypotheticals that would be used from testimony of the witnesses to the expert to help the court to rule on this case.”
Counsel stated she would agree to a trial continuance to enable Bonifacio to depose the expert or obtain his own expert. Counsel referred to points and authorities provided to the court (not part of the record here) “with regards to the ability of the court to grant the annulment based on the fraud with the allegation that if [Angelina] had known that the only reason that she was getting married . . . was to give access to her daughter, she would not have done it. And that’s the huge issue in this case and the court needs to have this expert.” Counsel added that she had found the expert just the day before and had faxed his curriculum vitae to Bonifacio’s counsel as soon as she received it. She noted that the previous continuances in the case had all been at Bonifacio’s behest and that this was her first such request.
Bonifacio’s counsel objected to further delay and the ensuing prejudice but did not address Angelina’s arguments regarding the need for an expert. The court took note of the age of the case and the numerous delays. The court stated Angelina’s burden was to “prov[e] that the marriage was entered into by fraud, which means . . . whatever evidence she has has to be related back to some type of fraud perpetrated before the incident.” The court agreed to allow Angelina to call “very lately noticed witnesses” (M and R), but found the expert would be of “very little probative value” and that the testimony of the witnesses that had been “lately designated would be of much more importance . . . as to whether or not there was a fraud at the time of the trial [sic] entered into.” The court denied both motions. The proposed expert did serve as Angelina’s trial consultant.
At trial, G testified that Bonifacio had started “humping” her in 1984 when she was six years old. This behavior continued until G was in fifth grade. At that point, Bonifacio stopped abusing her in this manner, instead grabbing her breasts when he passed her. G did not tell Angelina about the abuse until 2005, well after it had ceased and after Bonifacio had filed his petition for dissolution.
Angelina’s nephew, M testified that he was nine years old when Bonifacio sexually abused him at the Nillos’ home. Four incidents occurred in the 1989-1990 time frame. He told no one about the abuse until G asked him about it several days before he testified in 2007.
Angelina’s nephew, R testified that he was 11 years old when Bonifacio molested him five times in 1996 and attempted to molest him an additional time that year. He did not tell anyone about the abuse until 2003, when he informed G at a family reunion. He did not know when Angelina learned that Bonifacio had abused him.
Bonifacio did not testify, on advice of counsel. The court took judicial notice of the DSM IV regarding pedophilia.
This document is not part of the record on appeal.
On June 26, 2007, the trial court entered judgment of dissolution and denied Angelina’s request for a nullity. Angelina filed a Notice of Appeal on July 24, 2007.
STANDARD OF REVIEW
We review a judgment of nullity or a decision regarding the validity of a marriage under the substantial evidence standard. (In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 756; In re Marriage of Liu (1987) 197 Cal.App.3d 143, 155.)
DISCUSSION
Family Code section 2210 provides: “A marriage is voidable and may be adjudged a nullity if . . . the following condition[] existed at the time of the marriage: [¶] . . . [¶] (d) The 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 cohabitated with the other as husband or wife.” (§ 2210, subd. (d).) Annulment on this basis is permitted only in extreme cases and requires that the fraud “go[] to the very essence of the marriage relation,” particularly where a marriage has been consummated and the parties have assumed the mutual rights and duties of the relationship. (Marshall v. Marshall (1931) 212 Cal. 736, 739-740.) In such cases, public policy considerations come into play, and courts are very reluctant to declare any marriage a nullity. (In re Marriage of Meagher & Maleki (2005) 131 Cal.App.4th 1, 3; Millar v. Millar (1917) 175 Cal. 797, 803.)
The fraud relied upon must directly defeat the marriage relationship. (In re Marriage of Ramirez, supra,165 Cal.App.4th at p. 757; Douglass v. Douglass (1957) 148 Cal.App.2d 867, 868-869 [“[n]othing short of this would justify an annulment; nothing more is required to establish the voidable character of the marriage contract”].) It is not enough to show “such fraud as would be sufficient to rescind an ordinary civil contract.” (In re Ramirez, supra, 165 Cal.App.4th at p. 757.) Rather, one must prove the offending spouse intended not to perform a duty vital to the marriage and that intention existed in the spouse’s mind at the moment the marriage contract was made. (Bruce v. Bruce (1945) 71 Cal.App.2d 641, 643; In re Marriage of Ramirez, supra,165 Cal.App.4th at p. 757.) Moreover, as public policy strongly favors marriage, the state has a keen interest in ensuring that no marriage is declared void unless fraud is shown by clear and convincing evidence. (Bing Gee v. Chan Lai Yung Gee (1949) 89 Cal.App.2d 877, 885; Williams v. Williams (1965) 178 Cal.App.2d 522, 525.)
Fraud-based annulments have been granted almost exclusively in cases involving fraud that relates in some way to the sexual, procreative, or child-rearing aspects of marriage. (Meagher & Maleki, supra, 131 Cal.App.4th at pp. 7-8.) Fraud sufficient to support an annulment has been found when a prospective spouse concealed his or her intention not to: (1) engage in sexual relations with the other spouse (In re Marriage of Liu, supra, 197 Cal.App.3d at p. 156); (2) live in the same house with the other spouse (Handley v. Handley (1960) 179 Cal.App.2d 742, 747-748); (3) terminate an intimate relationship with a third person after the marriage (In re Ramirez, supra, 165 Cal.App.4th at p. 759; Schaub v. Schaub (1945) 71 Cal.App.2d 467, 477-479); or (4) have children with the other spouse notwithstanding a promise to the contrary (Maslow v. Maslow (1953) 117 Cal.App.2d 237, disapproved on other grounds by Liodas v. Sahadi (1977) 19 Cal.3d 278, 287). Annulments have also been justified based on a spouse’s concealment of his or her sterility (Vileta v. Vileta (1942) 53 Cal.App.2d 794) and a wife’s concealment at the time of marriage that she was pregnant with another man’s child (Hardesty v. Hardesty (1924) 193 Cal. 330).
Even the one California case which granted an annulment on grounds not directly involving sex or procreation had at least some connection to child rearing. In Douglass v. Douglass, supra,148 Cal.App.2d 867, the trial court denied an annulment to a wife whose husband falsely represented to her before their marriage that he was “an honest, law abiding, respectable and honorable man,” had fathered one child in a prior marriage, and that the child was “well provided for.” (Id. at p. 868.) Within three months of the marriage, the wife discovered the husband had recently been convicted of grand theft and was in violation of his parole for failure to pay child support for his two children from the prior marriage. (Ibid.) The appellate court described the husband’s fraud in concealing his criminal record and true character as “a deceit so gross and cruel as to prove him [to the wife] to be a man unworthy of trust,” and reversed the judgment. (Id. at p. 870.) The court reasoned that because the wife had two children from a prior marriage, from her perspective the “essentials of the marital relationship” necessarily included a “husband of honorable character whom she could respect and trust, . . . and who would be a suitable stepfather for her children.” (Id. at pp. 869-870.)
Angelina bears the burden of showing by clear and convincing evidence that Bonifacio was in fact a pedophile before they married, that he knew of his pedophilia, and that he induced Angelina to marry him to gain access to G. With the appropriate evidence, we would have little difficulty finding such a reprehensible scenario to be the type of fraud that “goes to the very essence of the marriage relation[.]” (Marshall v. Marshall, supra, 212 Cal. at pp. 739-740.) Annulment would thus be available under Douglass v. Douglass, supra, 148 Cal.App.2d at page 869 [litigant entitled to annulment “where the fraud is so grievous that it places the injured party in a relationship that is intolerable because it cannot be honorably endured”].
Here, however, Angelina failed to offer any evidence to show that at the time they married,Bonifacio was a pedophile or even knew he had such proclivities. She acknowledged that Bonifacio did not make any promises before he proposed to her. She knew of no allegations made prior to their marriage that Bonifacio had engaged in child sexual abuse or molestation. When he asked Angelina to marry him, Bonifacio told her it was “[b]ecause he pitie[d her] because of [her] daughter, because my co-workers were fighting with [her], and [her] mother [was] mad at [her].”
Angelina did not offer evidence that supported her contention that Bonifacio was a pedophile before they married. The 2008 conviction of which she asks this court to take judicial notice does not comply with the California Rules of Court, and we decline to consider it. (Cal. Rules of Court, rules 3.1113(m) [“Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c)”], 3.1306(c) [“A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material”].) Although it appears the trial court did take judicial notice of the DSM IV, it is not part of the appellate record, and we cannot tell what the trial court actually received or saw.
At oral argument, counsel represented that Bonifacio pled guilty to child abuse involving M and R, not G.
Finally, the offer of proof with respect to her proposed expert witness’s testimony lacked the foundational facts necessary to establish the relevance of the testimony. The offer was simply too vague for us to determine whether the trial court abused its discretion in denying her request. (Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 168.) There is no indication in the record before us that the proposed expert evaluated, diagnosed or, indeed, ever met Bonifacio. Angelina’s offer of proof failed to “connect the dots” such that the expert’s proposed testimony about pedophilia in general, some 20 years after the alleged inducement to marry, would aid the trial court in assessing whether Bonifacio had the requisite intent to defraud Angelina. As Angelina has failed to show that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice, we will not disturb the court’s exercise of discretion. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419.) The trial court did not err in denying the request for an annulment, and we therefore affirm the judgment.
Our conclusion that annulment was properly denied here because there was no evidence of fraud at the time Angelina and Bonifacio married obviates the need to address Angelina’s other contention that the trial court erred in finding Bonifacio’s conduct was “open and notorious” such that she should have known of his behavior.
DISPOSITION
The judgment of the trial court is affirmed.
I concur: ROTHSCHILD, J.
MALLANO, P. J., Dissenting.
I believe that the trial court erred in not allowing Angelina to call an expert witness on pedophilia. Her counsel proffered as follows: “I researched and found an expert on that very issue to tie in the facts with the court. The court apparently and [sic] cannot have knowledge of the psychological issues without having the appointment of an expert, even though late. The expert, if allowed to testify, would assist the trier of fact in talking about the age of a pedophile, there are apparently different designations of that where a pedophile is only attracted to children of the age up to puberty to 12 years old. [¶] . . . [¶] . . . The behaviors of a person who is a pedophile with regards to specifically — attaining the — of obtaining access to children, including winning the trust of the child’s mother or marrying a woman with an attractive child and that the onset of this disorder is generally discovered in their teens. [¶] It is not a preference. It is an orientation that the possible early causes through research with regards to having their own issues of child sexual abuse or trauma, for instance, a parent or grandparent beating the child so severe of physical abuse, those types of things. [¶] The fact that the court — there’s a diagnostic manual, the DSM IV, that describes pedophilia; it’s something that is recognized in the medical psychological community and has been for years and years. And the hypotheticals that would be used from testimony of the witnesses to the expert to help the court to rule on this case. [¶] And it’s knowledge that apparently the court needs from the discussions in chambers Monday in order to make the determination.”
Notwithstanding, the trial court stated that “the expert will be of very little probative value that the — as a trier of fact, the testimony of the witnesses [Angelina’s nephews] that have been lately designated would be of much more importance for the trier of fact to make its decision as to whether or not there was a fraud at the time [the marriage was] entered into.”
A marriage may be adjudged a nullity if the consent of a party was obtained by fraud. The fraud must go “to the very essence of the marriage relation[.]” (Marshall v. Marshall (1931) 212 Cal. 736, 738–739.) For example, fraud can occur when a party fails to reveal a prior criminal record such that “the fraud is so grievous that it places the injured party in a relationship that is intolerable because it cannot be honorably endured.” (Douglass v. Douglass (1957) 148 Cal.App.2d 867, 869.)
In the very year of their marriage, Bonifacio began molesting Angelina’s six-year-old daughter and continued doing so for about four years (1984 to 1988). He then molested Angelina’s nine-year-old nephew four times (1989 to 1990). Thereafter, he molested Angelina’s 11-year-old nephew five times and tried to molest him a sixth time (1996). If it were determined that Bonifacio committed fraud by concealing that he was a pedophile at the time of the marriage, such fraud would bear on the “essentials of the marital relationship” (Douglass, supra, 148 Cal.App.2d at p. 870) and would be so grievous that Angelina would be in “a relationship that is intolerable because it cannot be honorably endured” (id. at p. 869). Angelina had a right to know that Bonifacio was a pedophile because her daughter would be at risk. If concealing one’s prior criminal record can constitute fraud as it did in Douglass, then concealing one’s pedophilic tendencies that place the innocent spouse’s child at risk must, a fortiori, constitute fraud.
Angelina’s expert would have offered evidence that Bonifacio would have known that he was a pedophile when he married Angelina and that her daughter was at risk. This evidence would have been borne out by Bonifacio’s immediate, continuing and persistent acts of pedophilia perpetrated against Angelina’s daughter and nephews. By not allowing the expert to testify, the trial court was not informed on the critical issue of the case — Bonifacio’s orientation of pedophilia and the risk to Angelina’s daughter — which led the trial court to conclude that Bonifacio had no duty to tell Angelina of his pedophilia. It is reasonably probable that the expert, if found credible, might have persuaded the trial court to find fraud.
As for the trial court’s alternate ruling denying Angelina’s late designation of the expert as untimely, this was erroneous because Angelina had just learned of Bonifacio’s molestation of her two nephews, and the trial court failed to appreciate the significance of the expert’s critical testimony, deeming it as “of very little probative value . . . .”
Finally, I recognize that if Angelina, “with full knowledge of the facts constituting the fraud, freely cohabited with [Bonifacio],” she would not be entitled to an annulment. (Fam. Code, § 2210, subd. (d), italics added.) The trial court did not find that Angelina had “full knowledge of the facts.” Rather, the trial court found that Angelina “was put on notice that she either knew or should have known of this behavior of [Bonifacio].” (Italics added.) The trial court erred in using a lesser standard of knowledge to deprive Angelina of an annulment.
I would reverse for a new trial with expert testimony and use of the correct standard under Family Code section 2210, subdivision (d).