Marriage of Johns

Filed 12/31/09 Marriage of Johns CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dale R. Wells, Judge. Affirmed.

Law Offices of B. Palmer Riedel and Alexander Pham for Appellant.

Walter R. Nelson; Sheila A. Williams and Laura J. Fuller for Respondent.

This is an appeal by Faye P. Johns (hereafter Faye)^[1]from the judgment on the petition filed by William D. Johns (hereafter William) declaring their marriage of 28 years a nullity under Family Code section 2201.^[2] The issues decided against her and which she challenges on appeal are that the marriage is void because Faye was not legally divorced from her fourth husband at the time she married William, her fifth husband, and that Faye is not a putative spouse because she did not have a good faith belief in the validity of the marriage. More particularly, Faye contends that (1) the trial court incorrectly applied an objective standard to determine whether Faye had a good faith belief in the validity of her marriage to William; (2) even under an objective standard of good faith the evidence is insufficient to support the trial courts finding that Faye is not a putative spouse; (3) the evidence does not support the trial courts finding on the date of separation; (4) the trial court incorrectly found that estoppel does not apply to preclude William from challenging the validity of the marriage; (5) the trial court abused its discretion by denying Fayes request to submit her closing argument in writing; and (6) the trial court erred when it took judicial notice of various court records from Fayes prior divorce proceedings because the documents were not certified.

We conclude for reasons we explain below that Fayes claims are all meritless. Therefore we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

William filed a petition on April 25, 2007, seeking to annul his April 5, 1979, marriage to Faye on the ground that the marriage was bigamous within the meaning of section 2201 because Faye was not divorced from Barry at the time she married William. On May 14, 2007, Faye filed her response alleging the marriage was valid and therefore she requested a dissolution of that marriage. In a declaration filed in support of a related order to show cause regarding Fayes request for William to pay her attorneys fees and spousal support, Faye asserted in pertinent part that her previous husband Barry (Williams brother) handled the dissolution of that marriage in 1979. According to Faye, her default was entered in that matter and Barry handled all of the paperwork and dealing with the lawyers. Faye acknowledged in her declaration that she has seen poorly photocopied copies of documents which purport to be the entry of an interlocutory judgment in February of 1979 and the entry of a final judgment in May of 1979 but claimed she was not aware that her April 5, 1979, marriage to William was void because she was still married to Barry. In Fayes view, she and William believed that this was a valid marriage, a belief that would establish [Faye] as a putative spouse. Faye also stated that she and William separated in 2007, not 1996, as William alleged in his petition.

In his opposition to Fayes request for attorneys fees and spousal support, William asked the trial court to take judicial notice of the notice of entry of judgment in Fayes divorce from Barry which reflects that the judgment was entered on May 10, 1979, more than a month after William and Faye were married. William also submitted a declaration in which he stated, among other things, that his brother Barry, who is deceased, made comments to William shortly before and after Williams marriage to Faye that raised some doubts in Williams mind about whether Fayes divorce from Barry was final at the time Faye and William were married. In early 2007, after yet another person informed him that his marriage to Faye was not legal, William obtained copies of the pertinent documents from Los Angeles County Superior Court. The court documents, copies of which William attached as exhibits to his declaration, disclosed that Fayes divorce from Barry was not final until May 10, 1979.

At a hearing on August 20, 2007, the trial court set a two-day trial to begin on January 2, 2008, on the issues of whether Williams marriage to Faye was valid and if not whether Faye is a putative spouse. The parties stipulated to a resolution pending trial on the issues of Fayes request for spousal support and attorneys fees.

William filed a List of Disputed Issues in which he identified the three issues to be resolved at trial: (1) the date he and Faye separated; (2) whether their marriage was bigamous; and (3) whether Faye is a putative spouse. Prior to trial, William also filed a request for the trial court to take judicial notice of the court files in the four proceedings in which Fayes prior marriages were terminated.

William and Faye each testified at trial. The details of their testimony are not disputed and reveal that Faye and William began a sexual relationship in 1978 while Faye still was married to Barry. Faye knew that William was gay because he told her early in their relationship that he was never a heterosexual. Faye and William were married on April 5, 1979. William moved out of the house he and Faye shared in October 1996. Earlier that year, Fayes lover moved in with Faye. Shortly before he moved out, Faye assaulted William with a gun. William testified that Faye also threatened him with a knife, but Faye denied the knife incident. William eventually met a man with whom he began a relationship and as of the time of trial, the two had been together for 10 years.

William financially supported Faye after he moved out of the house in 1996, but the two never lived together again. William and his partner also attended social functions with Faye at which they would introduce her as our wife.

In her testimony Faye stated in pertinent part that she was born in 1939. In 1957 she married Leslie Merrill Behunin, whom Faye referred to as Bud Merrill. In October 1959 she filed for divorce from Mr. Behunin. Faye was represented by an attorney in that proceeding. Faye acknowledged that the court records of that dissolution proceeding included the interlocutory judgment, which was entered March 23, 1960, and which stated that the final judgment dissolving the marriage would not be entered until one year from that date. Faye also acknowledged that she must have seen the interlocutory judgment, which states that she had to wait one year from March 23, 1960, before the divorce would be final, although she could not recall seeing it before it was shown to her at her deposition in this case. Faye testified that she married her second husband, Richard Dumke, on June 3, 1960.

Faye also acknowledged in her testimony that Richard Dumke filed a petition to annul their marriage on October 24, 1968, on the ground that at the time he married Faye she was not divorced from her first husband. Faye also acknowledged that Mr. Dumke prevailed on his petition and obtained a judgment annulling his marriage to Faye. Faye testified that she did not know she was still married to Mr. Behunin when she married Mr. Dumke.

Faye testified that she married her third husband, Richard Huff, on November 28, 1971. On May 8, 1974, Faye filed a petition to dissolve that marriage. Faye acknowledged that the attorney who represented her in the dissolution proceeding was her boss, and that she worked for the law firm for approximately 10 years. The interlocutory judgment of dissolution of her marriage from Richard Huff was entered on January 23, 1975, and the final judgment was entered the next day, on January 24, 1975. Faye acknowledged that the interlocutory judgment included a statement that it does not constitute a final dissolution of marriage, and the parties are still married and will be. And neither party may remarry until a final judgment of dissolution is entered.

Faye married Barry Johns, her fourth husband, on February 15, 1975. Barry filed for dissolution of that marriage in October 1978. The interlocutory judgment of dissolution was entered on February 9, 1979. According to the court records of that proceeding, the final judgment of dissolution was entered on May 10, 1979. Faye married William on April 5, 1979.

With regard to the date Faye and William separated, Faye acknowledged that her petition identified the date as April 25, 2007. When asked, What happened on that day to cause you to believe you and Bill were separated, Faye stated, I believe the documents were filed that way. When pressed for facts to support the date of separation, Faye stated that the date was when William filed his petition seeking to annul their marriage. Faye acknowledged that in October 1996 William moved from the home he shared with Faye, and that the two have not lived together or had any intimate contact with each other since that date. Before William moved from the home in 1996, Fayes boyfriend moved in and lived with Faye, an arrangement to which William did not object. Faye also acknowledged that William had been with his partner since 1999.

Faye claimed she attended social events alone with William after 1999, but was impeached with her deposition testimony. Faye also claimed William introduced her as his wife at social events, such as the gay mens chorus. Faye acknowledged that she pointed a gun at William but described the circumstances differently than William related them in his testimony. Faye also acknowledged that William moved out of their house in October 1996, which according to Faye was about two months after the gun incident.

On January 11, 2008, the trial court issued its ruling on submitted matter and intended statement of decision. The trial court found in favor of William and against Faye on all three disputed issues. We recount the details of the trial courts findings below in our discussion of Fayes various claims in this appeal from the judgment of nullity entered on February 14, 2008.

DISCUSSION

Faye first contends the trial court erred when it applied an objective standard to determine that she is not a putative spouse within the meaning of section 2251. Fayes claim is meritless, for reasons we now explain.

1.

PUTATIVE SPOUSE ISSUE

In order for Faye to lawfully marry William, she first had to be divorced from Barry, otherwise her marriage to William is bigamous and void under section 2201.^[3] Even if her marriage is void, Faye might qualify as a putative spouse. Faye does not dispute that she was not divorced from Barry at the time she married William. Instead, she challenges the admissibility of the documents offered to prove that fact. In particular, Faye contends that the documents were not certified, and therefore were not the proper subject of judicial notice by the trial court, and that the documents are difficult to read if not actually illegible. Because that issue is potentially dispositive we address it at the outset.

Faye did not raise any objection at trial to the admissibility of the documents in question.^[4] Prior to trial, William filed a request that the trial court take judicial notice of the court records of Fayes prior dissolution proceedings, including the file pertinent to the dissolution of her marriage to Barry. Faye did not file any opposition to that request. Moreover, at trial, Fayes attorney did not object when the trial court asked if he wished to be heard on Williams request for judicial notice.^[5] Faye also claims that the documents are difficult to read, but she does not demonstrate that she raised that objection in the trial court. Although her claim includes citations to the reporters transcript, the citations are to Fayes testimony in which she complains that she is unable to read her copies of the documents. Faye does not cite any instance in which she expressly objected to the admissibility of the documents because the documents were difficult to read.

Because Faye did not object in the trial court to the admissibility of the documents and records in question, she has forfeited the claim on appeal. The rule is well established that points not urged in the trial court may not be urged for the first time on appeal. (Damianiv. Albert (1957) 48 Cal.2d 15, 18; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138 [failure to object to statement of decision in trial court forfeits any objection on appeal].)^[6]

Although her marriage to William is invalid, Faye claimed in the trial court that she is entitled to putative spouse status under section 2251 which provides that [a]n 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. [Citations.] (In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 756 (Ramirez).) A putative spouse is entitled to the division of property acquired during the union as community property or quasi-community property. [Citations.] (Ibid.) In addition, a putative spouse may also be awarded spousal support. (See 2254.)

In finding Faye was not a putative spouse, the trial court applied the standard set out in In re Marriage of Vryonis (1988) 202 Cal.App.3d 712 (Vryonis), that, While a trial court may be tempted to base a finding of putative spousal status merely on the subjective good faith in a valid marriage held by a credible and sympathetic party, more is required. Good faith belief is a legal term of art, and in both the civil and criminal law a determination of good faith is tested by an objective standard. (Id. at p. 720.) A proper assertion of putative spouse status must rest on facts that would cause a reasonable person to harbor a good faith belief in the existence of a valid marriage. (Id. at p. 721.)

Faye contends that Vryonis is incorrect, first, because the cases relied on by the Vryonis court do not support an objective good faith standard, and next because cases decided before enactment of the Family Law Act in 1969 do support such a standard. According to Faye, the correct standard is a purely subjective one, which if applied in this case would result in a finding that she is a putative spouse. Faye is incorrect in every aspect of her claim, but we will not address her specific assertions.

As we stated in Ramirez, supra, The determination of the partys good faith is tested by an objective standard. [Citations.] A subjective good faith belief alone, even by a party that is found credible and sympathetic, is insufficient. [Citation.] 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 he or she was married and that the marriage was valid under California law. [Citations.] (Ramirez, supra, 165 Cal.App.4th at p. 756.) Faye does not mention Ramirez in her argument that the correct standard is a purely subjective one, and she cites the opinion only in her reply brief as support for her erroneous view that evidence regarding the so-called formalities of marriage is sufficient to demonstrate a good faith belief in the validity of the marriage. The defect in Fayes assertion regarding her good faith belief, as we explain in our discussion of her challenge to the sufficiency of the evidence, is that the issue in Ramirez was whether the marriage ceremony was valid because it had been performed in California but under the laws of Mexico; hence the focus on the formalities of the marriage ceremony, or wedding. (Ramirez, supra, 165 Cal.App.4th at pp. 756-757.) The issue in this case is not with the validity of the marriage ceremony but with whether Faye was divorced and therefore legally able to remarry.

In short, the trial court correctly applied an objective standard to determine whether Faye had a good faith belief that she was divorced at the time of the April 5, 1979, wedding and therefore her marriage to William was valid.

2.

SUFFICIENY OF THE EVIDENCE

We next address Fayes various challenges to the sufficiency of the evidence to support several of the trial courts findings. We review such claims according to a well-settled standard: Where findings of fact are challenged on a civil appeal, we are bound by the elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . . [Citation.] (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) Evidence is substantial if it is of ponderable legal significance, reasonable, credible, and of solid value. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)

A.     Putative Spouse Finding

Faye contends that even under an objective standard of good faith, the evidence is insufficient to support the trial courts finding that she is not a putative spouse because the evidence does not show that she knew at the time she married William that her divorce from Barry was not final. In other words, Faye contends that her good faith is presumed and can only be refuted by evidence that she actually knew her divorce from Barry was not final. Faye does not cite any authority to support that view, a view that is obviously related to her equally incorrect assertion that good faith is assessed according to a subjective standard.

The evidence presented in the trial court is sufficient to support the trial courts finding that Faye did not have a good faith belief that she was lawfully married to William. In addressing this issue both in the trial court and on appeal, Faye cites facts to show that during their marriage she and William believed they were married and acted accordingly, and that their wedding ceremony had been performed in accordance with the laws of the state of Hawaii, where she and William were wed, and thus their marriage included all the indicia of a valid marriage. The trial court, in rejecting this argument when Faye raised it below, found that the defect in Fayes marriage to William does not arise out of the failure to have a marriage license, nor the failure to go through a marriage ceremony, nor the failure to have a marriage license recorded. It is simply a matter of the fact that, at the time Faye said I do to William, she knew, or should have known, that she was ineligible to enter that marriage because her earlier marriage to Barry had not been terminated. Fayes belief, however sincere, that her marriage to William was valid, is unreasonable and therefore lacking in good faith. The trial court also found that, Faye may be a sympathetic party, but her subjective good faith belief in the validity of her marriage to William is not objectively reasonable in light of the fact, available to her, but hidden from William, that her divorce from Barry was not final at the time she married William.

Although arguably contradictory, we construe the trial courts statements to mean Faye did not have either a subjective or objective good faith belief that she was divorced from Barry at the time she married William; Faye simply did not care one way or the other. The trial courts finding is supported by the evidence, set out above, that William was Fayes fifth husband; Fayes second marriage had been annulled because her divorce from her first husband had not been final at the time she married her second husband; and Faye had been through three prior divorce proceedings all of which included interlocutory judgments that clearly stated they were not final and would not be final until the requisite period of time had expired. The evidence that Faye had previously entered a marriage before being lawfully divorced supports a reasonable inference that she did not even subjectively believe she was divorced from Barry at the time she married William. Instead, the evidence showed that Faye did not care whether that marriage had been lawfully terminated. But even if Faye actually harbored a belief that her divorce from Barry was final at the time she married William, the trial courts finding that Fayes belief was not objectively reasonable is also supported by the previously noted evidence. In short, and contrary to Fayes apparent view, the evidence did not have to show that Faye actually knew at the time she married William that she was not divorced from Barry.

B. Estoppel Finding

Faye claimed in the trial court that William was estopped from denying the validity of his marriage to Faye because he knew, or should have known, at the time they married that Faye was not divorced from Barry. The trial court rejected the estoppel claim, a finding Faye contends is not supported by substantial evidence. Once again, we disagree.

Estoppel applies to prevent a person from asserting a right where his conduct or silence makes it unconscionable for him to assert it. (In re Marriage of Recknor (1982) 138 Cal.App.3d 539, 546, citing Brown v. Brown (1969) 274 Cal.App.2d 178, 188.) In In re Marriage of Recknor, supra, the husband knew that the wifes divorce was not final at the time he married her but because she was pregnant with his child he wanted to proceed with the wedding ceremony. As applied in this context, and as the trial court found, William would be precluded from denying the validity of his marriage to Faye if he knew at the time he married Faye that she was not yet divorced from Barry.

Despite her characterization of the issue, Faye acknowledges that the evidence is undisputed and shows that Faye and William began their relationship while Faye was still married to Barry and at various times during the course of that relationship, including two or three weeks before they were wed, William suspected that Fayes divorce from Barry might not have been final. More specifically, William testified in pertinent part that at the time he married Faye he did not know whether her divorce from Barry was final. Barry made a comment to William about three to four weeks before William married Faye that if William and Faye continue the way youre going, you will be in trouble some day. At the time William passed it off to the fact that Barry was losing his wife to William. Barry made another comment to William in 1980 or 1981, after William and Faye had married, something like, One day you guys are going to get what you deserve. Again, William just attributed it to Barry being angry that William had taken Barrys wife from him. After their mother passed away, Barry made an effort to keep William from inheriting from her estate, which William again attributed to Barrys resentment toward him. William testified that in November 2006, he had a conversation with Barrys then wife who told William that his marriage to Faye had been illegal. In March 2007, William actually checked the pertinent records in Los Angeles Superior Court and for the first time learned that Fayes divorce from Barry was not final at the time William and Faye married.

That evidence does not show that William knew Faye was not divorced at the time he and Faye married. Faye contends that even if William did not actually know, he should have known and on that basis should be estopped from denying the validity of his marriage to Faye. Faye has not cited any authority to support the view that estoppel applies in such a situation. Because the trial courts finding on the issue of estoppel is supported by the law and evidence, we must affirm.^[7]

3.

WRITTEN CLOSING ARGUMENT

Faye contends that the trial court abused its discretion by denying her request to submit closing argument in writing. According to Faye, the trial court granted that request on the first day of the two-day trial but then changed its mind at the conclusion of trial, all to Fayes prejudice. We do not share Fayes view that the trial court actually granted her trial counsels request to submit closing argument in writing. The pertinent exchange, which took place after Williams attorney completed her opening statement, consists of the following:

The Court: Thank you. Mr. Patterson [Fayes attorney], do you want to make an opening statement or do you want to reserve?

Mr. Patterson: A quick one. Some procedural things, I think the parties in this case would both like to request a statement of decision. I would like the opportunity when the evidence has been introduced to argue my case in writing. [] There is a fairly good size [sic] set of points and authorities already in the file that was filed in August on the question of punitive [sic] spouse. There is another issue that has a lot of case law that I think your Honor would want to make sure your decision is accurate. And that has to do with the date of separation, which was an issue Counsel didnt really talk about. But in any event, I would like to argue the evidence with the benefit of making your Honor aware of the case law in both of those subjects.

The Court: Okay.

We do not construe the trial courts response as permission to submit closing argument in writing. Instead, we construe the trial courts response as simply acknowledging that he heard what Fayes attorney had said. That construction finds further support from the fact that at the conclusion of the presentation of evidence and after both sides rested, the trial court for the first time asked Williams attorney, Ms. Williams, whether she had any objection to Mr. Pattersons request to submit written closing argument. Ms. Williams did object. That objection prompted a discussion between the trial court and the attorneys in which the trial court acknowledged that Mr. Patterson had asked to submit his closing in writing and that the trial court had not asked Ms. Williams at that time whether she objected. Ultimately, the trial court decided that closing arguments would be presented orally.

Faye argues in this appeal that her attorney was not prepared to present an oral closing argument and as a result she was deprived of the opportunity to apply the evidence as presented at trial to the pertinent case law and thereby show that she is a putative spouse. Her argument notwithstanding, Faye does not cite any additional facts or law her attorney would have relied on if he had submitted closing argument in writing. Moreover, as William points out, Fayes attorney had an opportunity to file a trial brief in which he could have set out both the facts and the pertinent law. For these reasons we reject Fayes claim that the trial court abused its discretion in denying her request to submit closing argument in writing.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent William D. Johns.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ King

J.

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^[1]We refer to the parties by their first names because for purposes of clarity that is the preferred practice in family law matters; in doing so we intend no disrespect. (See In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)

^[2]All further statutory references are to the Family Code unless indicated otherwise.

^[3]Section 2201 states in pertinent part that, (a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless: [] (1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.

^[4]In points and authorities filed in July 2007, to support her order to show cause regarding attorneys fees and spousal support, Faye did object to the filing of secondary evidence (anything but certified copies) ((best evidence objection)) per Evidence Code Section 1520, et. seq. Faye has not demonstrated that the trial court ruled on that objection, and if so that the ruling affected the admissibility of evidence at trial.

^[5]At trial, Williams attorney noted that she had filed a request for judicial notice of the four divorce files and then asked the trial court to take judicial notice of those files. Before granting that request, the trial court asked Fayes attorney whether he needed to be heard on that. Fayes attorney responded, No. The trial court then granted the request to take judicial notice of the divorce filings, including the file of the dissolution proceeding of Fayes marriage to Barry.

^[6]To the extent Faye is of the view that judicial notice may only be taken of certified records or documents, the cases she cites do not support that view. People v. Preslie (1977) 70 Cal.App.3d 486, 495, and Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 743, both involve requests on appeal for judicial notice of a search warrant and a federal court complaint, respectively. The appellate courts in both cases denied the requests because the court documents that were the subjects of the judicial notice requests were not certified. Both cases hold that a court of appeal may deny a judicial notice request if the documents that are the subject of that request are not certified and therefore the authenticity of the documents cannot be established. (People v. Preslie, supra,at p. 495; Ross v. Creel Printing and Publishing Co., supra, at p. 743.) Neither case holds, as Faye suggests, that a court must deny a judicial notice request if the records are not certified.

^[7]As the trial court noted in its ruling on submitted matter, the findings that the marriage is void and that Faye is not a putative spouse render the date of separation issue irrelevant. The trial court addressed the issue in order to avoid a retrial in the event its findings on either of those issues were reversed. Because we are affirming both findings, the date on which Faye and William separated is irrelevant and therefore we will not address Fayes claim challenging the sufficiency of the evidence to support the trial courts finding regarding the date of separation.