Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. FL139397.
Duffy, J.
Appellant Bee Leng Yeo (Wife) appeals from the trial court’s denial of her petition to nullify her marriage to Yalin Ren (Husband) under Family Code section 2210, subdivision (d), on the basis of fraud. Finding no error, we affirm the judgment.
Further statutory references are to the Family Code unless otherwise indicated.
STATEMENT OF THE CASE
I. Factual Background
The parties met and began dating in or around September 2006. During their courtship, though they talked about some of their past romantic relationships and “quality of relationship,” Wife did not inquire about Husband’s marital status or history or about his mental health and Husband made no representations about these matters.
Husband and Wife were married on December 28, 2006. It was Wife’s first marriage. The marriage was performed at San Jose City Hall and the parties had lunch together following the ceremony. After that, Husband said that he needed to leave and that he had “something to take care of.” Husband departed and Wife did not hear from him for the rest of the day, spending the night separately at her own home.
The next day, Wife, “humiliated and puzzled,” went to Husband’s apartment to confront him. When she did, Husband “could not utter any explanation” but Wife found a document on his table that indicated that Husband’s previous marriage, of which Wife had been unaware, had been annulled in Nevada. This discovery prompted Wife to inquire further about Husband’s marital history, something she had not done before, and she learned that he had been previously married twice, one marriage ending in divorce, the other in annulment. While at his apartment that day, she also discovered that Husband was taking prescribed medication for “anxiety,” which Wife considered “some mental disorder.” She learned for the first time that he was being treated by a psychiatrist and that the psychiatrist had prescribed the medication for panic disorder.
After learning this information about Husband, Wife left his apartment. The parties never moved in together and the marriage was never consummated.
We have taken the facts from the transcript of the hearing at which the court denied Wife’s petition for nullity of marriage and from her subsequent written motion to “vacate judgment” in which she essentially asked the court to reconsider her original petition for nullity. That original petition is not included in the record, which is therefore inadequate for purposes of appellate review of the judgment denying the petition. We nevertheless reach the merits based on the record as presented.
II. Procedural Background
Wife filed her petition for nullity of marriage under section 2210, subdivision (d), on April 11, 2007, and Husband’s default was entered on July 9, 2007. The matter was set for hearing on August 3, 2007. Wife was sworn and she essentially testified to the above facts. The court asked her several times if Husband had made any representations prior to the marriage about his marital history or his health and Wife repeatedly affirmed that he had not. Wife also repeatedly affirmed that she had not inquired about these matters before the marriage. But she did say that she thought their relationship should have been “honest” and based on “trust,” supporting her belief that Husband should have affirmatively disclosed these matters to her without being asked because they were intending to marry, and they thus should have been “true to each other.”
Husband did not appear at what was in essence a default prove-up hearing.
The court orally stated its understanding of the law that in order establish entitlement to a judgment of nullity, there must have been a misrepresentation of fact, or a partial disclosure in response to a direct question, on which Wife relied and which induced her to enter into the marriage, which she would not have done absent the misrepresentation or half-truth. The court also indicated its understanding that in order to warrant relief, the misrepresentation must have related to “the issue of procreation or raising children” or the “ability to bear or raise children.” The court accordingly denied relief and noted in response to Wife’s counsel’s inquiry that based on the evidence presented, it would have granted a “termination of marital status” if the petition had been pleaded in the alternative, which it apparently was not.
Wife appeals from the court’s minute order entered at the hearing. There was no separate judgment bearing the court’s signature entered after that. But the document states, by boxes checked, “It is ordered: Judgment of Nullity denied.” We will therefore treat the document as a final judgment for purposes of appeal because it is “the final determination of the rights of the parties in an action or proceeding” as provided at Code of Civil Procedure section 577, which defines the term “judgment.” On August 13, 2007, Wife filed her ex parte application requesting vacation of the judgment, which included her declaration as to the above stated facts. That motion was apparently denied, though no order reflecting this action appears in the record on appeal. Wife has not appealed from that order, appealing only from the “default judgment.”
This appeal from the judgment denying Wife’s petition for nullity of marriage followed.
Husband did not file a respondent’s brief in this court. Thus, we resolve this appeal based on Wife’s opening brief and the record.
DISCUSSION
Section 2210, provides that “[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 cohabited with the other as husband or wife.” Annulment is considered an extreme remedy. It requires fraud that “goes to the very essence of the marriage relation.” (Marshall v. Marshall (1931) 212 Cal. 736, 739.) Because of the public policy considerations that come into play, courts are extremely reluctant to declare any marriage a nullity. (In re Marriage of Meagher & Maleki (2005) 131 Cal.App.4th 1, 3 (Meagher & Maleki).)
The showing of fraud necessary to warrant nullification is “ ‘not merely such fraud as would be sufficient to rescind an ordinary civil contract.’ [Citations.]” (Williams & Williams (1960) 178 Cal.App.2d 522, 525.) To void a marriage based on fraud, the showing required is one of an intention not to perform a duty vital to the marriage, which exists in an offending spouse’s mind at the moment the marriage contract is made. (Bruce v. Bruce (1945) 71 Cal.App.2d 641, 643.)
Historically, annulments based on fraud have only been granted in cases in which the fraud 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 warranting annulment is typically found in cases involving a prospective spouse’s concealment of his or her intention not to: (1) engage in sexual relations (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 156); live in the same house with the other spouse (Handley v. Handley (1960) 179 Cal.App.2d 742, 747-748); terminate an intimate relationship with a third person after the marriage (Schaub v. Schaub (1945) 71 Cal.App.2d 467, 477-479); or have children with the spouse notwithstanding a promise to the contrary (Maslow v. Maslow (1953) 117 Cal.App.2d 237, disapproved on other grounds in Liodas v. Sahadi (1977) 19 Cal.3d 278, 292-293). 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), or 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.)
Only one California case has granted an annulment in a circumstance not directly involving sex or procreation. In Douglass v. Douglass (1957) 148 Cal.App.2d 867, the trial court denied an annulment to a wife whose husband, before their marriage, had falsely represented to her that he was “an honest, law abiding, respectable and honorable man,” who had fathered one child in a prior marriage, a child who was “ ‘well provided for.’ ” (Id. at p. 868.) In fact, the husband had recently been convicted of grand theft, and was arrested for a parole violation shortly after the marriage for failure to pay child support for his two children from a prior marriage. (Ibid.) The appellate court found the husband’s fraud in concealing his criminal record and true character was “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.) In concluding that annulment was warranted, the appellate court relied in part on the fact that the wife had two children from a prior marriage and that, because of this, the “essentials of the marital relationship,” from her perspective, 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.) Those “hopes were shattered and her purposes defeated” when she learned that her new husband had failed to provide for his own children. (Id. at p. 870.) “Thus, even in Douglass, the fraud that the court found to be sufficient grounds for annulment had some nexus with the child-rearing aspect of marriage.” (Meagher & Maleki, supra, 131 Cal.App.4th at p. 8.)
Although the above-cited cases that limit the type of fraud that warrants nullification are fairly dated, more recent authority has not changed this long-standing rule. In 1993, for example, the court of appeal in In re Marriage of Johnston (1993) 18 Cal.App.4th 499, 500-502, reversed a judgment granting an annulment to a wife who discovered after marriage that her husband had concealed the facts that he had a severe drinking problem for which he declined to seek help and that he did not intend to work for a living. Even though the wife also alleged that the couple’s “sex life after marriage was unsatisfactory,” the court still found that the fraud did not “go to the very essence of the marital relation” and therefore was not sufficient as a basis for an annulment. (Id. at pp. 500, 502.)
The 2005 case of Meagher & Maleki is also instructive. There, a woman with substantial financial assets, who was nearing retirement as a physician, and a man in his sixties whom the woman believed was a millionaire with expertise in real estate and finance, married after entering into a romantic relationship and several real estate ventures together. After marriage, the couple’s financial situation deteriorated significantly. The wife began to doubt the husband’s representations about his financial status and business expertise. The husband threatened divorce unless the wife ceded to him complete control over all her personal assets. The parties separated when the wife began to suspect her husband had only married her for her money. (Meagher & Maleki, supra, 131 Cal.App.4th at p. 5.) The trial court found that that wife had relied on husband’s representations that he was very wealthy and would take care of her and based on that concluded that “ ‘there was never a marriage’ ” and entered a judgment of nullity. (Id. at p. 6.)
The appellate court reversed, concluding that the husband’s lies were purely of a financial nature, which were not like an intention not to engage in sexual relations, not to cohabitate, or not to terminate a sexual relationship with a third party—all matters that go to the core of the marital relationship. The court rested its decision on the notion that fraud of a financial nature is simply not “the type that constitutes an adequate basis for granting an annulment.” (Meagher & Maleki, supra, 131 Cal.App.4th at p. 9 .)
We similarly conclude that the fraud that Wife alleges here does not go to the essence of the marital relation and thus does not warrant the extreme relief of annulment. That an intended spouse has been married twice before is certainly a relevant consideration for one seeking to marry. But the record here shows that it was not an important enough matter to Wife for her to have even inquired about it before marriage. And this fact does not go directly and to the heart of the marital relationship in the same way that sexual or procreative matters do. The same is true for the fact that Husband was seeing a psychiatrist and had been prescribed anti-anxiety medication. Wife contends that she was misled by husband’s nondisclosure of “material facts that are [the] foundation of all marriages” and that Husband’s nondisclosure caused her to enter into the marriage, something she would not have done had she known the true facts. That Wife would not have entered into marriage had she known these facts, however, even if true, does not transform the quality of the information to that which objectively goes to the essence of marriage itself.
Moreover, we agree with the trial court that Husband’s omission here as a matter of law does not rise to the level of fraud in the context of marriage annulment. Wife points to Civil Code section 1710, which defines fraud to include the “suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.” (Civ. Code, § 1710, subd. (3).) But Wife cites no legal duty on Husband’s part to have disclosed the information about his marital history or his emotional or mental health. And she readily admitted in the trial court that Husband never made any misrepresentation about these matters or gave partial and misleading information as part of an incomplete response to any direct question. Husband’s nondisclosure does not amount therefore to “marriage fraud,” as Wife suggests.
We conclude that the trial court’s judgment, as reflected by its minute order, is supported by substantial evidence and, based on this evidence, was legally correct. We accordingly affirm the judgment denying Wife’s petition for nullity of marriage.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.