Marriage of Walther CA2/6

Filed 2/22/22 Marriage of Walther CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of HOWARD 2d Civil No. B309062
and KIRA WALTHER. (Super. Ct. No. 20FL00586)
(Santa Barbara County)
HOWARD WALTHER,
Appellant,
v.
KIRA NEILSON,
Respondent.
In April 2017 a stipulated final judgment of dissolution was
entered dissolving the 18-year marriage of Howard Walther
(appellant) and Kira Walther (respondent).1 Approximately three
years later in March 2020, appellant filed the petition seeking to
annul his already dissolved marriage. The petition seeks to
In her brief respondent states that she “has . . . remarried
1
and her last name is now Neilson.”
nullify his dissolved marriage on the ground that respondent had
committed fraud and bigamy. Proceeding in propria persona,
appellant purports to appeal from a judgment of dismissal
entered after the trial court had sustained respondent’s demurrer
without leave to amend and had struck the petition as a “sham
pleading.” We affirm because the stipulated final judgment of
dissolution operates as res judicata on the issue of the legality of
the parties’ marriage. It conclusively establishes that they were
legally married and that the marriage cannot be annulled.2
Trial Court’s Ruling
In an unsigned minute order, the trial court sustained the
demurrer on several grounds: (1) the statute of limitations for
filing the petition had expired; (2) the judgment of dissolution
operated as res judicata “not only to the parties’ status with
relation to each other, but also of all issues that were litigated or
that could have been litigated therein”; (3) the petition for
nullification was moot because the parties were no longer
married; and (4) the allegations concerning respondent’s bigamy
were speculative and devoid of any factual basis. The court
struck the petition “as a sham pleading” because appellant had
“pled facts [in the petition] that contradict the facts and position
that he pleaded in earlier actions . . . [thus] prov[ing] the pleaded
facts [in the petition] false.” The court issued a signed statement
of decision incorporating the unsigned minute order.
2This is appellant’s third appeal concerning his marriage
to respondent. (See In re Marriage of Walther (Aug. 17, 2016)
B267209 [non-pub. opn.]; In re Marriage of Walther (Nov. 30,
2015) B260104 [non-pub. opn.].)
2
Notice of Appeal
In the notice of appeal, appellant placed an “x” in a box
indicating that he was appealing from a “[j]udgment of dismissal
after an order sustaining a demurrer.” But the record on appeal
does not contain a judgment of dismissal, and the register of
actions shows that no such judgment was entered. “An order
sustaining a demurrer is not appealable absent an order
dismissing the complaint. . . . Because the case has been fully
briefed . . . , we deem the order sustaining the demurrer[]
[without leave to amend] to incorporate a judgment of
dismissal . . . .” (Lucas v. Santa Maria Public Airport Dist. (1995)
39 Cal.App.4th 1017, 1022.)
Respondent’s Motion to Augment the Record
or, in the Alternative, to Take Judicial Notice
Respondent filed a motion requesting that this court
augment the record to include two documents. The first is a
reporter’s transcript of a hearing conducted in the prior
dissolution proceeding, case number 1440419, on September 30,
2016. During the hearing, the parties stipulated to a settlement
of the dissolution proceeding. The parties understood that the
settlement would be incorporated into a judgment. At the
conclusion of the hearing, the court ordered the marriage
dissolved as of the date of the hearing.3
3 The following colloquy occurred between the court and
respondent:
“[THE COURT:] . . . [I]t’s your desire to have your marriage
dissolved today?
“[RESPONDENT:] Yes, it is.
“THE COURT: Very well. The marriage is dissolved as of
today’s date [September 30, 2016].”
3
The second document is the stipulated judgment of
dissolution entered on April 29, 2017. The judgment states that
the parties’ marital status ended on September 30, 2016, the date
of the prior hearing.
Appellant has filed opposition to the motion for
augmentation. We deny the motion because neither document
was “filed or lodged in the case in superior court,” i.e., the case
involving the petition for nullification of the marriage. (Cal.
Rules of Court, rule 8.155(a)(1)(A).)
In the alternative, respondent requests that we take
judicial notice of the documents pursuant to Evidence Code
section 452, subdivision (d), permitting judicial notice of court
records, and Evidence Code section 459, subdivision (a),
permitting the reviewing court to “take judicial notice of any
matter specified in Section 452.” (Evid. Code, § 459.)
Appellant opposes the request for judicial notice because
the documents were not before the trial court when it ruled on
the demurrer. (See Shuts v. Covenant Holdco LLC (2012) 208
Cal.App.4th 609, 622, fn. 7 [“What was not before the trial court
when it ruled on Covenant’s demurrer to plaintiffs’ [complaint] is
the compilation of documents included in plaintiffs’ request for
judicial notice . . . . For this reason, we decline to take
judicial notice of these documents”].)
Although the documents were not physically before the
trial court when it ruled on the demurrer, the court in effect
considered the content of these documents. In its ruling the court
stated, “[O]n 9/30/2016 a judgment of Dissolution of Marriage
was already entered by the Court in the matter of Kira Walther
v. Howard Walther, Case No. 1440419 . . . . [The parties’
marriage was dissolved on 9/30/2016, but a judgment of
4
dissolution was not entered until April 29, 2017.] The Court
finds that the judgment is res judicata . . . .” Since the trial court
in effect considered the content of the documents, we conclude it
is appropriate to judicially notice the actual documents.
Standard of Review
“A demurrer tests the legal sufficiency of factual allegations
in a complaint. [Citation.] A trial court’s ruling sustaining a
demurrer is erroneous if the facts alleged by the plaintiff state a
cause of action under any possible legal theory. [Citations.]” (Lee
Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th
73, 78.)
“[W]e apply the de novo standard of review in an appeal
following the sustaining of a demurrer . . . .” (California
Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242,
247.) “[W]e assume the truth of all facts properly pleaded in the
complaint and its exhibits or attachments, as well as those facts
that may fairly be implied or inferred from the express
allegations. [Citation.] ‘We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law.’ [Citation.]”
(Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95.) “We . . .
consider matters that may be judicially noticed . . . .” (Brown v.
Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275,
279.)
When “a demurrer has been sustained without leave to
amend, unless failure to grant leave to amend was an abuse of
discretion, the appellate court must affirm the judgment if it is
correct on any theory. [Citations.] If there is a reasonable
possibility that the defect in a complaint can be cured by
amendment, it is an abuse of discretion to sustain a demurrer
without leave to amend. [Citation.] The burden is on the
5
plaintiff . . . to demonstrate the manner in which the complaint
might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
Distinction Between Nullification
and Dissolution of Marriage
“[D]issolution of marriage and nullity of marriage are
premised on inconsistent contradictory harms suffered: Based on
grounds that arise after the marriage, a dissolution action is
brought to terminate a valid marriage; based on grounds
that arose prior to the alleged marriage, a nullity action is
brought to determine whether a valid marriage ever existed.” (In
re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1348.) “Very
simply, ‘a judgment of dissolution terminates a valid marriage,’
whereas ‘a judgment of nullity declares that the marriage was
void from its inception.’” (Ibid.) “Thus, a judgment of nullity ‘has
been said to “relate back” and erase the marriage and all its
implications from the outset.’” (In re Marriage of Seaton (2011)
200 Cal.App.4th 800, 807.)
The Doctrine of Res Judicata Operates to
Bar Appellant’s Petition for Nullification
The stipulated final judgment of dissolution is dispositive of
this appeal. “A final judgment dissolving a marriage, as between
the parties to the action, is res judicata of their status with
relation to each other, and it determines conclusively, as between
the parties, that they were legally married before the
judgment regardless of the true fact.” (33 Cal.Jur.3d (Nov. 2021
update) Family Law § 784.) “[A] final decree of divorce
conclusively determines, as between the parties thereto, that
they were legally married; and this regardless of the true fact
[citations] and seemingly despite the most flagrant fraud
practiced by one of the parties. Such being the case, the decree of
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divorce may not be collaterally attacked by the parties thereto,
and all the facts therein found or necessary to be found, such as
the fact of marriage, are conclusive upon the parties in
subsequent proceedings whether they pertain to divorce or not.”
(Petry v. Petry (1941) 47 Cal.App.2d 594, 595; see also In re Lee’s
Estate (1927) 200 Cal. 310, 314; Blumenthal v. Blumenthal (1929)
97 Cal.App. 558, 561.)
Thus, appellant’s petition for nullification of the marriage
fails to state a cause of action because the stipulated final
judgment of dissolution conclusively establishes that the parties
were legally married. We need not consider the other grounds
upon which the trial court relied in sustaining the demurrer
without leave to amend. Nor need we consider the trial court’s
order striking the petition as a sham pleading or respondent’s
argument that appellant “waive[d] . . . his right to contest the
validity of the marriage by stipulating to dissolve it.”
Appellant’s Remaining Contentions
In part IV of his opening brief, appellant raises several
additional claims of trial court error that we need not discuss. If
the trial court erred, appellant has failed to show that the errors
were prejudicial, i.e., “‘it is reasonably probable that a result
more favorable to the appealing party would have been reached
in the absence of the error.’” (Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 800.) Without a showing of prejudice, any error
was harmless and therefore cannot justify a reversal of the
judgment. (Id. at pp. 800-801; Cal.Const., art. VI, § 13; Code Civ.
Proc., § 475.) “[T]he burden to demonstrate prejudice is on the
appellant.” (Freeman v. Sullivant (2011) 192 Cal.App.4th 523,
528.)
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Disposition
The judgment of dismissal is affirmed. Respondent shall
recover her costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
Howard Walther, in pro. per., for Appellant.
Law Offices of Stephanie J. Finelli and Stephanie J. Finelli,
for Respondent.