Marriage of
Banhagel and Sheveleva
Filed 1/9/14 Marriage of Banhagel and Sheveleva CA4/1
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COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re Marriage of MATTHEW K. BANHAGEL and ELENA SHEVELEVA.
MATTHEW K. BANHAGEL,
Respondent,
v.
ELENA SHEVELEVA,
Appellant.
D061873
(Super. Ct. No.
DN163215)
APPEAL from a judgment of the
Commissioner. Affirmed.
Stephen Temko and Dennis Temko for
Appellant.
Law Office of James D. Scott, James
D. Scott and Andrew J. Botros for Respondent.
Elena Sheveleva appeals from a judgment
annulling her marriage to Matthew Banhagel.
She asserts the judgment is
reversible per se because she was denied her constitutional right to a fair
trial. We reject her assertions and affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
Elena
does not challenge the sufficiency of the evidence supporting the family court's
decision and, while the parties disagree on the facts surrounding the breakdown
of their marriage, they are well aware of the facts of this dispute. Accordingly, we merely summarize some of the
facts to provide background for our later discussions.
Matthew met Elena on an
international dating Web site in May 2008.
Elena was from Russia.
She has an adult son and a nine-year-old
daughter with her ex-husband. Elena
spoke only a bit of English and the couple communicated by e-mail using a
in person. The couple had sex for the
first time. In June 2009, the couple
agreed to marry.
A few weeks before the wedding,
Matthew experienced gaps in communication
with Elena where she did not e-mail him or answer the telephone. During this time, Matthew noticed that Elena remained
active with other users on the dating Web site.
When Matthew questioned Elena's sincerity,
Elena convinced him that she was marrying him for "nothing other than love
and devotion." The couple married
at the end of June 2009 in Russia, but the
couple did not have sex on their wedding night. In early June 2010, Elena arrived in the
claimed they had sex twice and that Elena displayed no affection and became
very frivolous with money. In contrast,
Elena claimed that she wanted to have sex with Matthew, but that cats in the
bed created problems with their sex life.
In July 2010, the couple's
communication broke down and Matthew began to suspect that he might be a victim
of fraud. In November 2010, Matthew
filed for a nullity of marriage, alternatively for dissolution of marriage. Before trial, Elena submitted nine declarations. One declaration was from her daughter's teacher,
the other declarations were from people Elena knew in Russia that were
translated into English. When trial
commenced, the family court stated it would not consider any declarations and
would only consider the testimony of the witnesses at trial. Matthew and Elena testified at trial. The only other witness was Oksana Voazzo, a
Russian woman who also met her husband on a dating Web site. Oksana became friends with Elena and claimed
that they "became pretty close."
The family court ordered the
marriage annulled after concluding that Elena committed fraud by entering into
the marriage with no intention of performing her marital duties. In its written intended decision, the court referenced
the witness declarations tendered by Elena.
When Elena's counsel objected to these references, the court replied
that it did not recall its prior ruling and considered the declarations for "credibility
and . . . impeachment" and not for the truth of the
matter asserted.
The court concluded that Elena was
not credible, stating it would have come to this conclusion based on the
testimony of the three trial witnesses even if the declarations had been
excluded. The court then ruled that its
statements would constitute a statement of decision.
At a later hearing, the family court
indicated that it had reviewed the earlier transcripts and realized it
previously stated that the declarations would not be considered. The court stated: "So the only way that I feel is
appropriate to handle it is to allow them to reopen as to the issue what was
brought up, what I considered out of the declarations." Elena's counsel then asked: "So we're
talking about [Elena's] testimony and whatever evidence is, I guess,
corresponding to that?" The court responded
that it did not have a copy of its decision, but wanted everyone to feel that
they have been treated fairly.
The continued trial was ultimately set
for hearing. At that time, Elena invoked
the Fifth Amendment privilege against self-incrimination and requested a
continuance until immigration proceedings against her were concluded. Although the court believed that the
individuals who had written the declarations would testify, Elena had no
witnesses to present. The court denied
the request for a continuance based on the concern that the immigration case
could take years to finish. The family
court explained that after it discovered the mistake regarding the
declarations:
"I didn't think it was fair to her
that she didn't have an opportunity to present evidence to overcome using those
declarations, even though I told counsel that without them I could have come to
the same decision. There were enough
contradictions without using those declarations in her testimony alone as compared
to—just within her testimony she was like 180 degrees difference on a lot of
different really important issues. . . . But
I still wanted to give her the benefit of having the opportunity to call
witnesses if she thought that it could overcome something. We're here today for trial."
The court entered a judgment that
incorporated its intended decision. Elena
timely appealed.
DISCUSSION
In general, a trial court has
discretion to grant or deny a continuance with the burden resting on the
complaining party to demonstrate from the record that an abuse has occurred. (Forthmann
v. Boyer (2002) 97 Cal.App.4th 977, 984-985.) Nonetheless, when a trial court's error
amounts to structural error, reversal is required without regard to the
strength of the evidence or other circumstances. (In re
Enrique G. (2006) 140 Cal.App.4th 676, 685.) Structural errors requiring automatic
reversal include violating a party's right to present testimony and evidence. (Marriage
of Carlsson (2008) 163 Cal.App.4th 281, 290-291.)
Elena contends the family court
committed reversible error when it failed to continue the trial until the
removal proceedings against her had concluded because she was deprived of the
right to present evidence after she properly invoked her Fifth Amendment
privilege against self-incrimination. We
disagree.
The Fifth Amendment to the United States Constitution
guarantees that a person may not be compelled to testify or give evidence
against herself. (Maness v. Meyers (1975) 419 U.S. 449, 461.) A witness may properly invoke the Fifth Amendment
privilege if the witness "reasonably apprehends a risk of
self-incrimination, . . . though no criminal charges are
pending against [the witness], . . . and even if the risk
of prosecution is remote." (
Cir. 1979) 608 F.2d 1084, 1087, fn. 5.) "However,
a party is not entitled to decide for himself or herself whether the privilege
against self-incrimination may be invoked. ' "Rather, this question is for the court
to decide after conducting 'a particularized inquiry, deciding, in connection
with each specific area that the questioning party seeks to explore, whether or
not the privilege is well founded.' " ' " (Fuller
v. Superior Court (2001) 87 Cal.App.4th 299, 305, italics omitted.) The person claiming the privilege has the
burden of showing that the proffered evidence is incriminating. (Evid. Code, § 404.) If the objecting party carries his or her
burden, then the judge must sustain the claim of privilege unless it clearly
appears that the proffered evidence cannot possibly have a tendency to
incriminate the person. (
304-305.)
On this record, we cannot conclude that the trial court's
refusal to continue the trial based on Elena's blanket invocation of the Fifth
Amendment privilege amounted to reversible error. The trial court considered the declarations
solely for impeachment and determining Elena's credibility. Accordingly, the purpose of reopening the
evidence was to allow examination of the witnesses that provided the
declarations or redirect examination of Elena to explain or rebut inferences based
on the family court's consideration of the declarations and thereby
rehabilitate Elena's credibility. (See
(2004) 32 Cal.4th 704, 746.)
At the continued trial, Elena did
not bring the declarants; rather, she sought to testify to rebut evidence or
inferences from the declarations. Elena,
however, failed to explain how any testimony she might offer to rebut the
declarations tended to incriminate her.
Thus, it is impossible to determine whether her invocation of the Fifth
Amendment privilege was well founded.
Assuming, without deciding, that Elena properly invoked the Fifth
Amendment privilege, we cannot conclude that the trial court's failure to
continue the trial amounted to a denial of due process because Elena was not
denied the right to present evidence.
She could have presented the declarants or other witnesses at the
hearing.
Under the lesser abuse of discretion standard, "an
abuse of discretion results in reversible error only when the denial of a
continuance results in the denial of a fair hearing, or otherwise prejudices a
party." (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.) Elena has not demonstrated prejudice as the
family court stated it would have come to the same conclusion based on the
testimony of the three trial witnesses even if the declarations had been
excluded. Although not challenged by
Elena, the evidence presented at trial supported the family court's finding
that Elena entered into the marriage with no intention of performing her marital
duties.
A marriage may be adjudicated a nullity if, at the time
of the marriage, "[t]he consent of either party was obtained by fraud." (Fam. Code, § 2210, subd. (d).)
The
showing of fraud necessary to warrant nullification must be of a type that " 'goes
to the very essence of the marriage relation.' " (Marshall
v. Marshall (1931) 212 Cal. 736, 739.)
The secret determination to refuse to engage in sexual intercourse is
sufficient to support an annulment. (
800-801 [wife concealed from husband at time of marriage that she did not
intend to have sexual relations with him]; In
re Marriage of Liu (1987) 197 Cal.App.3d 143, 156 [wife married husband in
Taiwan to acquire a green card, and concealed intention not to engage in sexual
relations].)
Here,
as noted by the family court, Elena and Matthew presented conflicting evidence
on this issue. However, the family court
found the testimony of the remaining witness, Oksana, to be "the most
powerful." Oksana testified
that when she and Elena were alone, Elena would "often" talk about
Matthew. Elena told Oksana that she did
not want to have sex with Matthew because "he was not adequate for her." Elena also told Oskana a number of times that
she married Matthew because it was "very dangerous to remain in Russia." The family court found Oksana to be a
credible witness who had no motive to lie. Additionally, as to Elena's own testimony, the
family court stated "[s]he was all over the place on almost every issue. She couldn't keep a story straight."
In summary, we find no error in the family court's
refusal to continue the trial.
DISPOSITION
The judgment is affirmed.
Respondent is entitled to his costs on appeal.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P.
J.
HALLER, J.
