Mario Phuong Todorov, V. Hanh Phuong Ha

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of ) No. 82311-6-I
MARIO TODOROV, )
)
Appellant, )
)
and ) PUBLISHED OPINION
)
HANH PHUONG HA, )
)
Respondent. )
BOWMAN, J. — Mario Todorov appeals an order dissolving his marriage to
Ha Phuong Hanh.1 Todorov contends the court erred when it refused to grant his
petition to invalidate the marriage. We conclude the trial court did not abuse its
discretion when it determined annulment was not warranted because Ha did not
induce Todorov to marry her by making a fraudulent misrepresentation involving
the essentials of marriage. We affirm the final dissolution decree.
FACTS
Todorov grew up in the United States and Ha grew up in Vietnam.
Todorov’s mother and Ha’s mother were friends for more than 35 years and
corresponded often. In 2015, Todorov traveled to Vietnam with his mother and
met Ha for the first time. The couple expressed a romantic interest in each other,
1
The case caption reflects the title of the case as it was in the trial court pursuant to RAP
3.4. However, following traditional Vietnamese naming conventions, Ha’s full name is Ha Phuong
Hahn.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82311-6-I/2
so Todorov visited Ha again in 2016. During that visit, Todorov asked Ha if she
had been in any prior relationships. She told him no. The two began discussing
marriage plans in late 2016. In early 2017, Todorov applied for a K-1 visa2 to
bring Ha to the United States.
Ha arrived in the United States on August 6, 2017. Her K-1 visa allowed
90 days for the couple to marry. But Ha asked Todorov to get a marriage license
the next day and he agreed. Ha and Todorov married on August 10, 2017, the
first allowable day after Washington’s mandatory 3-day waiting period. The two
did not consummate the marriage on their wedding night; they slept in separate
bedrooms. They were sexually intimate only once, toward the end of August
2017, and even then did not spend the entire night together in the same room.
Ha did not show any affection or warmth toward Todorov in private or in public.
Todorov soon became suspicious about Ha’s motives in marrying him.
On September 5, 2017, Todorov used a friend’s phone to search Ha’s
social media posts.3 He saw a photograph of Ha holding hands with another
man in February 2016. Other photographs showed Ha with the same man
several times between February 2016 and August 5, 2017, the day she left
Vietnam. Ha also seemed to suggest in her posts that she was coming to
America only to study and did not mention her marriage to Todorov. Todorov
immediately moved out of the family home.4
2
A K-1 visa allows a United States citizen to bring a foreign fiancé to the United States to
get married.
3
Ha blocked Todorov from seeing her social media posts.
4
Ha moved out of the home on September 10, 2017.
2
No. 82311-6-I/3
Todorov petitioned the court for an order invalidating the marriage. Ha
separately petitioned the court to dissolve the marriage. The court consolidated
the petitions and the case proceeded to a bench trial.
At trial, Todorov told the court he would have “[d]efinitely not” married Ha if
he knew she had a boyfriend. Todorov explained, “That is very critical” because
marriage is a permanent “sacred bond” in his religion. He claimed Ha entered
the union with bad intentions, and he did not believe they had a “true marriage.”
According to Todorov, Ha blocked his access to her social media to prevent him
from learning about her relationship with another man, and “[b]y omitting that
information, she essentially lied to me in the beginning, throughout, and after.”
Finally, he told the court he felt like he “was being used as a means to come to
the United States.”5
Ha denied that Todorov ever asked her “about [her] relationship status” in
2015 or 2016. Ha said she wanted to marry right away after arriving in America
because Todorov had taken only two weeks off from work and her mother’s visa
was good for only a month. Ha believed that the marriage ceremony was only to
make the union official and that the couple would celebrate with a formal wedding
later.
Ha told the court that after they married, she did not feel comfortable
sharing a room with Todorov because her mother was sleeping on the living
room sofa just outside his room. She wanted to wait until the current home
renovations finished, giving the couple their own private room downstairs. She
5
Todorov does not assert this argument on appeal.
3
No. 82311-6-I/4
also stated she grew unhappy in the marriage when it became apparent to her
that Todorov “married . . . me because of money.” He wanted her to pay for
things like home repairs, a new car, and a down payment on a house.
Ha admitted she was “in a relationship prior to meeting” Todorov. She first
testified that she ended the relationship before she met Todorov. But on cross-
examination, Ha admitted the relationship lasted until she agreed to marry
Todorov in late 2016. Ha denied that she was “in a relationship with [the man] all
the way up to August 5, 2017,” the day she left Vietnam.
The court found Todorov to be a credible witness and adopted much of his
testimony in its findings of fact. It concluded that Ha “was dishonest by omission”
about her relationship with another man, that Todorov relied on that
misrepresentation, and that Todorov would not have married Ha if he had known
the truth. But the court ruled that Ha’s misrepresentation, while hurtful to
Todorov, was not a fraud involving the essentials of marriage under RCW
26.09.040(4)(b)(i). The court denied Todorov’s petition to invalidate the marriage
and granted Ha’s petition for dissolution.
Todorov appeals.
ANALYSIS
Todorov alleges the trial court erred when it denied his petition to annul his
marriage to Ha. He claims Ha induced him to marry her through a fraudulent
misrepresentation involving the essentials of marriage. We disagree.
We review a trial court’s decision on a petition to invalidate or dissolve a
marriage for a manifest abuse of discretion. In re Marriage of Landry, 103 Wn.2d
4No. 82311-6-I/5
807, 809-10, 699 P.2d 214 (1985). A trial court abuses its discretion if its
decision is manifestly unreasonable, based on untenable grounds, or based on
untenable reasons. In re Marriage of Urbana, 147 Wn. App. 1, 9-10, 195 P.3d
959 (2008). We review the trial court’s interpretation of a statute de novo. In re
Marriage of Watson, 132 Wn. App. 222, 230, 130 P.3d 915 (2006).
Marriage is a civil contract. RCW 26.04.010(1). But statutes determine
the legal duties and rights of married parties. Wash. Statewide Org. of
Stepparents v. Smith, 85 Wn.2d 564, 569, 536 P.2d 1202 (1975). Public policy
favors presuming a marriage is valid based on “the interest of society . . . in
maintaining the integrity of the family as a social unit.” See Davis v. Davis, 3
Wn.2d 448, 453, 101 P.2d 313 (1940); see also Woy v. Woy, 737 S.W.2d 769,
772 (Mo. Ct. App. 1987) (public policy demands preserving the integrity of the
marriage contract so far as possible). As a result, a party seeking to annul a
marriage contract bears the burden to show its invalidity by “clear, satisfactory,
and convincing evidence.” Thorne v. Farrar, 57 Wash. 441, 445, 107 P. 347(1910).
Under RCW 26.09.040(4)(b)(i), a court must declare a marriage invalid if
“a party was induced to enter into the marriage by . . . fraud involving the
essentials of marriage”6 and the parties “have not ratified their marriage by
voluntarily cohabiting after . . . discovery of the fraud.”7 A court should grant
6
In contrast, dissolutions require only a determination that the marriage is irretrievably
broken. In re Marriage of Little, 96 Wn.2d 183, 192, 634 P.2d 498 (1981).
7
The trial court found that the parties did not cohabit after Todorov discovered Ha’s
misrepresentation about her prior relationship. This unchallenged finding is a verity on appeal. In
re Custody of A.T., 11 Wn. App. 2d 156, 158 n.4, 451 P.3d 1132 (2019).
5
No. 82311-6-I/6
annulment under RCW 26.09.040(4)(b)(i) in only extreme cases. Harding v.
Harding, 11 Wn.2d 138, 147, 118 P.2d 789 (1941).
Chapter 26.09 RCW does not define the term “essentials of marriage.”
We give undefined statutory terms their usual and ordinary meaning unless there
is contrary legislative intent. Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467,
479-80, 745 P.2d 1295 (1987). We may look to the dictionary to determine a
term’s ordinary meaning. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d
516, 528, 243 P.3d 1283 (2010). The dictionary defines “essential” as
“something basic or fundamental esp[ecially] belonging to or forming part of the
minimal indispensable body, character, or structure of a thing.” WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 777 (2002). Thus, a court must declare a
marriage invalid if one party induced the other party to enter the marriage by
fraud that goes to the indispensable body or structure of the marriage.
Harding is the only published Washington case that addresses what type
of fraud involves the essentials of marriage. In that case, our Supreme Court
determined that where one of the parties to a marriage ceremony determines
before the ceremony “that he or she will not engage in sexual intercourse with
the other after marriage, not disclosing such intention to the other, and carries
out such determination,” such fraud goes to the essentials of the marriage.
Harding, 11 Wn.2d at 145.
We agree with Todorov that Harding does not go so far as to limit the
essentials of marriage to sexual intercourse. As Todorov points out, Harding was
decided in 1941, and the “modern trend” in some jurisdictions is to interpret the
6
No. 82311-6-I/7
term more broadly.8 For example, in New Jersey, misrepresentations about
one’s intent to have children relate to the essence of the marriage relationship.
Tobon v. Sanchez, 213 N.J. Super. 472, 474, 517 A.2d 885 (Ch. Div. 1986);
V.J.S. v. M.J.B., 249 N.J. Super. 318, 329-30, 592 A.2d 328 (Ch. Div. 1991).
And in two states, courts found that fraudulent representations about religious
convictions go to the essentials of the marriage when one party showed an
inability to follow his religious tenets because of the fraud. Wolfe v. Wolfe, 62 Ill.
App. 3d 498, 506-07, 378 N.E.2d 1181 (1978), aff’d, 76 Ill. 2d 92, 389 N.E.2d
1143 (1979); Bilowit v. Dolitsky, 124 N.J. Super. 101, 103-04, 304 A.2d 774 (Ch.
Div. 1973).
But no state has determined that misrepresentations about chastity
involve the essentials of the marriage. Indeed, the opposite is true. California
follows the traditional rule that “character, habits, chastity, business or social
standing, financial worth or prospects, or matters of similar nature” do not affect
the essence of marriage. Schaub v. Schaub, 71 Cal. App. 2d 467, 476, 162 P.2d
966 (Dist. Ct. 1945); In re Marriage of Meagher, 131 Cal. App. 4th 1, 8, 31 Cal.
Rptr. 3d 663 (2005). Both Missouri and Nebraska conclude that courts do not
consider chastity before the marriage as vital to the marriage relationship. Woy,
737 S.W.2d at 774; Guggenmos v. Guggenmos, 218 Neb. 746, 752, 359 N.W.2d
87 (1984) (misrepresentation about ending a previous relationship did not go to
the essentials of marriage). And in Connecticut, even misrepresentation about a
8
Todorov invites us to adopt a “subjective standard” in determining whether fraud
involves the essentials of marriage. According to Todorov, we should define what is essential on
a case-by-case basis, looking only to “what was essential to the parties when they entered into
their marriage.” We decline the invitation.
7
No. 82311-6-I/8
prior marriage does not inherently impair a marital union. Fattibene v. Fattibene,
183 Conn. 433, 437, 439-40, 441 A.2d 3 (1981).
We agree with these jurisdictions that misrepresentations about chastity
do not amount to fraud involving the essentials of marriage. Here, Ha’s
misrepresentation about her prior relationship was not so extreme that it
amounted to fraud involving the essentials of marriage, requiring annulment
under RCW 26.09.040(4)(b)(i). The trial court did not abuse its discretion in
refusing to invalidate Todorov and Ha’s marriage.
We affirm the final dissolution decree.9
WE CONCUR:
9
Ha requests attorney fees on appeal under RCW 26.09.140. But RAP 18.1(c) requires
a party seeking attorney fees to “file a financial affidavit no later than 10 days prior to the date the
case is set for oral argument,” and she did not file a financial affidavit. We deny Ha’s request for
attorney fees on appeal.
8