Marriage of Salehi and Sakhizada CA3 ( 2020 )

Filed 12/22/20 Marriage of Salehi and Sakhizada CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re the Marriage of SAMREEN SALEHI and C087959
SHOEIB SAKHIZADA.
SAMREEN SALEHI, (Super. Ct. No.
STAFLNWOC20170004761)
Respondent,
v.
SHOEIB SAKHIZADA,
Appellant.
M. Shoeib Sakhizada (appellant) appeals from a judgment annulling his marriage
to Samreen Salehi (respondent) on the ground that respondent’s consent to the marriage
was obtained by his fraud (Fam. Code, § 2210, subd. (d)). Appellant contends on appeal
the judgment is not supported by substantial evidence. We disagree and affirm.
I. BACKGROUND
In August 2016, following their families’ agreement, appellant and respondent met
at a Starbucks and began getting to know each other. Appellant was from London; he
told respondent he was in the United States on a work visa, but the job he came to do did
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not work out. Respondent had a “stable job” here in the United States; she wanted to get
married and settle down. Appellant indicated that he too wanted to marry and settle
down. With their families’ consent, appellant and respondent became engaged.
Shortly after their agreement to become engaged, appellant told respondent his
visa was expiring. He and his family said a civil ceremony would have to take place
immediately so that appellant could remain in the country. Respondent felt rushed, she
wished appellant had told her about his visa situation when they first met. Nevertheless,
appellant and his family had agreed to a religious wedding, so she acquiesced to the civil
ceremony, and, in September 2016, the parties were married in the San Joaquin County
courthouse.
Following the civil ceremony, appellant’s uncle took appellant and respondent to
his friend, a lawyer in Oakland, who advised the parties to prepare for their immigration
interview. He told appellant and respondent they needed to live together and share a
bank account. Respondent told the lawyer they were unable to live together because they
had not been “religiously married.” This was news to the lawyer. Respondent did,
however, open a joint bank account for herself and appellant.
Along with their families, the parties continued to talk about the religious/cultural
wedding. They agreed they would plan the wedding after appellant got his green card,
which he applied for after the civil ceremony. Consistent with their traditions, on
November 26, 2016, respondent’s family hosted the parties’ “cultural engagement party.”
In February 2017, appellant and respondent had their immigration interview.
They were told to bring pictures, so they brought in pictures from their engagement party
and led the interviewer to believe it was their wedding. After the interview, respondent’s
family continued to press appellant’s family on a date for the religious ceremony, but
appellant now wanted to wait until he had a job.
In March 2017, appellant got a job at Macy’s, and later, his green card, and the
families continued to discuss the religious ceremony. Appellant and his family, however,
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had further excuses for putting it off. Appellant did not have a car; respondent’s father
gave him one. He also took appellant to get his driving test. Appellant could not pass the
eye exam because he needed glasses; respondent’s father took him to the eye doctor and
bought him glasses. Appellant was then able to pass the test, but respondent’s father felt
appellant was “delaying.” Appellant now had a green card, a job, and a car. But there
was still no date set for the religious wedding.
Prior to their civil ceremony, respondent described her relationship with appellant
as “nice.” After the ceremony, appellant began to show a lack of interest. Respondent
texted appellant with her concerns, but nothing changed. Respondent and appellant were
not sexually intimate. Respondent and her father noticed a distinct lack of affection from
appellant toward respondent.
In July 2017, respondent and appellant were arguing, their families were arguing,
and respondent (along with her father) issued an ultimatum. Respondent gave appellant
one month: “ ‘We should be married. I need to have a religious ceremony. I need your
family to be involved in the plan.’ ” Respondent’s father wanted appellant to move out
of his family’s home and get an apartment; he offered to help.
Respondent’s father expected to hear back from appellant but after a month of
silence, he called appellant’s father. He asked appellant’s father if they had chosen a date
for the religious wedding. They had not, appellant’s father said, they were waiting for
appellant’s brothers to finish school in London, which would be in another eight months.
Appellant’s mother said she would call back in three days; she did not, but appellant did.
Appellant called respondent’s father. Her father expected appellant to be calling
with a date for the wedding. Instead, appellant called off the “relationship.”
In August 2017, respondent filed a petition for nullity of her marriage to appellant.
In her petition, appellant alleged fraud. Specifically, she claimed appellant promised her
that if she married him in a civil ceremony so he could obtain a green card, he would then
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marry her in a religious ceremony. Appellant, however, had no intention of keeping that
promise.
Following trial, the trial court ruled “[t]he evidence in this case is more than
sufficient to support a determination that [appellant’s] objective in marrying [respondent]
was to acquire a green card and that he made promises solely to induce her to have a civil
ceremony without any intention of fulfilling his promise once the underlying purpose had
been accomplished. [Respondent] did not discover the fraud until after the civil
ceremony when [appellant] made it clear that he was not going forward with the
promised religious ceremony.” Accordingly, the trial court granted respondent’s request
for a judgment of nullity on the basis of fraud.
Appellant subsequently filed a motion to vacate the judgment and enter a new
judgment, or alternatively, to grant a new trial. The trial court denied appellant’s motion
in its entirety. Defendant appeals from this order as well as the judgment.
II. DISCUSSION
A marriage may be judged a nullity if “[t]he 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 his or her
spouse.” (Fam. Code, § 2210, subd. (d).) Immigration fraud like that alleged here will
support an annulment. (E.g., In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 155-156
(Liu); In re Marriage of Rabie (1974) 40 Cal. App. 3d 917, 921-922.) The existence of
actual fraud is a question of fact (Civ. Code, § 1574), and the testimony of one witness
entitled to credibility is sufficient to prove any fact (Evid. Code, § 411).
Accordingly, we review judgments of annulment for substantial evidence. (Liu,
supra, 197 Cal.App.3d at pp. 155-156; In re Marriage of Rabie, supra, 40 Cal.App.3d at
p. 921; Lamberti v. Lamberti (1969) 272 Cal. App. 2d 482, 485-486.) We are bound by
the trial court’s interpretation of the facts and view the facts in the light most favorable to
respondent as the prevailing party below. (Liu, supra, at pp. 155-156.)
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A judgment of annulment based on immigration fraud was upheld by the court of
appeal in Liu, supra, 197 Cal. App. 3d 143. In that case, the husband testified the parties
married in both civil and traditional ceremonies in Taiwan. (Id. at p. 147.) He returned
to the United States, and the wife asked him to apply for a green card so she could enter
and remain in the United States. (Id. at pp. 147-148.) He did so, but the parties separated
within two months after the wife came to the United States, and the husband testified they
never had sexual relations. (Id. at p. 148.)
The trial court in Liu found “the marriage was never consummated, that [the wife]
entered into the marriage for the purpose of obtaining a ‘green card,’ that she did not
intend to engage in sexual relations or to perform her marital duties, and that the parties
never cohabited as husband and wife. Consequently, the court found that [the husband’s]
consent to marry was obtained by fraud within the meaning of [former] Civil Code
section 4425, subdivision (d).” (Liu, supra, 197 Cal.App.3d at p. 148.) The court of
appeal found substantial evidence to support the trial court’s conclusions because:
(1) husband testified he never had sexual relations with his wife; (2) there was evidence
of the wife’s ulterior motive, i.e., to obtain a green card to allow her to reside in the
United States; and (3) the marriage deteriorated rapidly as soon as the wife arrived in the
United States. (Id. at p. 156.)
In Lamberti v. Lamberti, supra, 272 Cal. App. 2d 482, a man who was in the United
States as a visitor married a United States citizen in a civil ceremony to avoid
deportation. (Id. at p. 483.) The parties agreed they would also marry in a religious
ceremony, but once his immigration problems were resolved, the husband refused to
complete the religious ceremony, and the marriage was never consummated. (Id. at
pp. 483-484.) Upholding the trial court’s grant of the wife’s annulment petition, the
appellate court opined that an annulment is proper “where one prospective spouse, in
order to induce the other to enter into a civil marriage, makes a promise of a subsequent
religious ceremony without intending to keep it . . . .” (Id. at p. 485.) “In order to
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determine what constitutes sufficient fraud to annul a marriage there must be regard for
the whole status of both parties and the circumstances which induced the contract—in
short, the fraud must be determined by the circumstances of each case. We think it
necessarily follows that an annulment of an unconsummated marriage may be secured
more readily than one in a situation where the parties have cohabited as husband and
wife.” (Ibid.)
There is ample evidence in the record to support the trial court’s finding that
respondent’s consent to the marriage was obtained by fraud, because appellant entered
into the civil marriage only for the purposes of obtaining permanent residency in the
United States and had no intention of following through with his promise for a religious
wedding.
It is undisputed the parties never lived together, and their marriage was never
consummated. As such, the parties “never cohabitated as husband and wife.” (See Liu,
supra, 197 Cal.App.3d at p. 148.) It was appellant’s inaction in securing a date for the
religious wedding after his immigration problems were resolved that ensured the
marriage would never be consummated. (See Lamberti v. Lamberti, supra,
272 Cal.App.2d at p. 484.) The court could properly have inferred appellant never
intended to cohabitate with respondent, and thus his only intent in solemnizing the
marriage was to gain permanent residency.
III. DISPOSITION
The judgment is affirmed. Samreen Salehi shall recover her costs on appeal, if
any. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
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/S/
RENNER, J.
We concur:
/S/
RAYE, P. J.
/S/
DUARTE, J.
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