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Canít Condone a Cheating Spouse Who Never Intended to Be Faithful and Then Ask for Annulment of Marriage

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Family Law, Divorce, Legal Cases,

 

 

          In the case of In re Marriage of Goodwin-Mitchell and Mitchell, Wife helped her Jamaican first husband obtain his green card, their marriage ended in divorce. In January 2015, she met another Jamaican (Husband) online, and they “began dating over the internet.” Husband told Wife that he wanted to come to the U.S., live with her, have a restaurant business, and join the U.S. Army. He started to discuss marriage between February and March of 2015. In June of 2015, Wife traveled to Jamaica to meet Husband for the first time. While she was visiting him, they got married.

          Wife returned to the U.S. and applied for a two-year visa for Husband. The application was approved in September of 2016 and Husband joined Wife in November of 2016. According to Wife, Husband started “soliciting call girls, prostitution, and other women off of sites” within a week of his arrival.

          In February 2017, Husband was jailed for several days after an incident of domestic violence, and Trial Court issued a restraining order against him. While Husband was in incarcerated, Wife discovered text messages he sent to his mother which indicated that he was staying with Wife until he got his papers and was urging her and his brother to come to the U.S. too. She also found text messages between Husband and another woman in which he repeatedly said he loved her, explained that he could not leave Wife until he got his papers or the Army “came through,” and said he would get a divorce when he could.

          When Husband got out of jail, Wife let him come back home and she had the restraining order lifted. They resumed fully cohabiting, but no longer held themselves out as a couple. Wife would later say that she felt legally responsible for him until he was given permanent resident status.

          However, in March of 2017, Wife found out that Husband had sex with another woman in their home. In June of 2017, Wife filed for an annulment on the basis of fraud or alternatively for a divorce. Still, Husband and Wife continued to live together and have sexual relations until November of 2017, when Wife asked him to move out.

          At a subsequent hearing, Wife testified to the above-related facts and assertions. When Husband testified, he denied soliciting women on the internet, and claimed that the women in Jamaica was just a friend. He said he had told her that he loved her because he’d been traumatized in jail, and was seeking comfort for his emotional wounds. In response to Husband’s denial of cheating, Wife testified that he had taped himself having sex in their home with another woman. She described the sounds that led her to believe that sex was occurring, but did not submit the tape in evidence. Wife stated the she had found the woman’s phone number on Husband’s phone, along with numbers for escort services, and had actually spoken with the woman. Husband then testified that the woman was “an acquaintance who stopped by the house” and had come on to him and demanded sex during her visit. Husband maintained that they did not have sex and that the woman was the one who recorded their encounter in order to get “sexual favors” from him.

          When the hearing concluded, Trial Court, in a ruling from the bench, summarized the facts, noting that Husband had engaged in two relationships with other women before he had been in the U.S. for a year. Trial Court reasoned that Wife and Husband owed each other a duty of fidelity, to live together (not just cohabit) in full confidence of fidelity. Concluding that this was “not the case here,” Trial Court granted Wife’s petition for an annulment. Claiming that Wife failed to prove the elements required for an annulment for fraud under California Family Code Section 2210(d), Husband appealed, and California Court of Appeals has now reversed the Trial Court’s decision.

          The Court of Appeals has ruled that (1) fraud must be shown by clear and convincing evidence that it directly defeats the marriage relationship; (2) under the case of In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, a fraudulent intent to be unfaithful held by a spouse at the time of the marriage may support an annulment; (3) under Family Code Section 2210(d), a party whose consent to marry was obtained by fraud may not obtain an annulment on the grounds of fraud if he or she freely cohabits with the offending spouse after gaining full knowledge of the facts constituting the fraud; and (4) here, Wife continued to live with and have sex with Husband for eight months after she taped Husband’s sexual encounter in their home. The Appellate Court thus holds that Trial Court made a mistake by granting an annulment on these facts and it reverses Trial Court’s Judgment of Annulment, and sends the case back to Trial Court for proceedings on Wife’s alternative petition for divorce.

 

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