Hookers, Prostitutes, and Escorts. Oh My!

Sometimes, we have people come to the office and request an annulment. The length of marriage is not necessarily the primary factor. Here is a recent case from the First District in California and it is the CFLR case of the month for November 2019.

In Re Marriage of Goodwin-Mitchell and Mitchell

California Court of Appeal 1 Civil A154915, (Div. 3) 40 Cal.App.5th 232, 253, Cal.Rptr.3d 123, 2019 FA 1906, Per Siggins, P.J. (Petrou, and Wick, JJ, Concurring). Alameda County: Garcia J Reversed and Remanded. For Appellant: Kathleen Morgan, (415) 994-1342, For Respondent: No Appearance. CLFP §C.0.6.5

After Carolyn Goodwin-Mitchell helped her Jamaican first husband obtain his green card, their marriage ended in divorce. In January 2015, she met another Jamaican, Michael Mitchell, online, and they "began dating over the internet." Michael told Carolyn 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 2015. In June 2015, Carolyn traveled to Jamaica to meet Michael for the first time. While she was visiting him, they got married.

Carolyn returned to the U.S. and applied for a two-year visa for Michael. The application was approved in September 2016, and Michael joined her in November. Carolyn said Michael started "soliciting call-girls, prostitution, and other women off of sites" within a week of his arrival. In February of 2017, Michael was jailed for several days after an incident of domestic violence, and the court issued a restraining order against him. While he was in jail, Carolyn discovered text messages he sent to his mother which indicated that he was staying with Carolyn until he got his papers and was urging her and his brother to come to the U.S., too. She also found texts between Michael and another woman, DeAndra, in which he repeatedly said he loved DeAndra, explained that he could not leave Carolyn until he got his papers or the Army "came through," and said he would get a divorce when he could. This is an indication of fraud. Had she known of these things before marriage, would she have entered into the marital relationship.

When Michael got out of jail, Carolyn let him come back home and had the restraining order lifted. They resumed fully cohabiting, but no longer held themselves out as a couple. Carolyn would later say that she felt legally responsible for Michael until he was given permeant resident status. However, in March 2017, she found out that Michael had sex with another woman, Kim, in their home. In June 2017, Carolyn filed for an annulment on the basis of fraud or, alternatively, for a divorce. Still, Michael and Carolyn continued to live together and have sexual relations until November of 2017, when Carolyn asked him to move out.

At a subsequent hearing, Carolyn testified to the facts and assertions. When Michael testified, he denied soliciting women on the internet, and claimed that DeAndra was just a friend. He said he told DeAndra he loved her because he'd been traumatized in jail and was seeking comfort for his emotional wounds. In response to Michael's denial, re cheating, Carolyn testified that she had taped him 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. Carolyn stated that she had found the woman's phone number on Michael's phone, along with numbers for escort services, and had actually spoken with the woman. Michael 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. He 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, the trial court, in a ruling from the bench, summarized the facts, noting that Michael had engaged in two relationships with other women before he had been in the U.S. for a year. The trial court reasoned that Carolyn and Michael 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," the trial court granted Carolyn's petition for an annulment.

Michael contended that Carolyn failed to prove the elements required for an annulment for fraud under Fam.C. §2210(d). The justices noted that Fam.C. §2210(d) provides that a party whose consent to marriage was obtained by fraud may not obtain an annulment on that ground if he or she freely cohabited with the offending spouse after gaining full knowledge of the facts constituting the fraud. Moreover, they continued, the fraud must be shown by clear and convincing evidence that it directly defeats the marriage relationship. The panel also noted that the court in In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 2008 CFLR 10973, 2008 FA 1352, found that a fraudulent intent not to perform a vital duty must exist in the mind of the offending spouse at the time that the parties marry. Similarly, those justices reasoned that a fraudulent intent to be unfaithful held by a spouse at the time of the marriage may support an annulment. The panel also noted that in In re Marriage of Rabie (1974) 40 Cal.App.3d 917 and in In re Marriage of Liu (1987) 197 Cal.App.3d 143, the courts had found that annulments could be based on a party's concealed intent to marry only to obtain a green card.

Those cases did not help Carolyn here, the panel found, because Carolyn continued to live with Michael and have sex with him for 8 months after she had full knowledge of the facts constituting the fraud. She had found Michael's messages to DeAndra, and she taped his sexual encounter with Kim in their home. Given the clear statutory bar of Fam.C. §2210(d), the justices held the trial court erred by granting an annulment on these facts. Accordingly, they reversed the judgement and remanded to the trial court for proceedings on Carolyn's alternative petition for divorce.

The justices here tell us that an annulment on the basis of fraud should be granted "only in the extreme case where the particular fraud goes to the very essence of the marital relation." We are going to tell you that it is much harder to get an annulment than it is to get a divorce, especially with the no-fault statutes. . However, this opinion leaves us with the impression that if Carolyn hadn't run afoul of Fam.C. §2210(d), these justices would not have reversed. That may be so because as a general rule, courts have taken the position, as the panel did in Liu, that the facts constituting the fraud must generally involve sexual or procreative aspects of marriage. The spouses in In re Marriage of Meagher and Maleki (2005) 131 Cal.App.4th 1, 31 Cal.Rptr.3d 663, and In re Marriage of Johnston (1993) 18 Cal.App.4th 499, 22 Cal. Rptr.2d 253, were therefore out of luck because they alleged misrepresentations regarding financial worth or business or social standing, which were not things that went to the very essence of the marriage relation. As the justices in Johnston put it, the essence of the marital relationship is defined as those aspects considered to be implicit in the marriage contract, not the personal things that make life with that spouse heaven or hell.

Edgar Family Law has years of experience in family law. We have offices located in Riverside, Temecula, and Orange. Please contact our office for a free initial family law consultation. We hhelp you get the results that your family deserves.