Filed 6/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of SAMIR ELALI and
MAYSSA MARCHOUD.
SAMIR ELALI,
E075103
Respondent,
(Super. Ct. Nos. FAMSS1404386
v. & FAMSS1509878)
MAYSSA MARCHOUD,
OPINION
Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven J. Singley
and Teresa S. Bennett, Judges. Affirmed.
Peirano & Associates, Cristian L. Peirano, Sean R. Bozarth and Tom N. Yacko,
for Appellant.
Chung & Ignacio and Eric N. Chung, for Respondent.
1
I.
INTRODUCTION
While Mr. Samir Elali was married to Ms. Angeles Elali and resided with her in
1
California, Samir married Ms. Mayssa Marchoud in Lebanon. After Samir attempted to
terminate the Lebanese marriage, Mayssa filed a petition in California for spousal support
without dissolution against Samir. The trial court ruled the Lebanese marriage was
2
bigamous and therefore void under Family Code section 2201, subdivision (a).
Mayssa appeals from the judgment of nullity. She contends the trial court erred in
relying on section 2201(a) in holding the Lebanese marriage was void. Mayssa also
contends that the parties’ pleading allegations admitting there was a marriage required the
trial court to find the Lebanese marriage was valid. In addition, Mayssa contends there
was insufficient evidence to overcome the presumption that the Lebanese marriage was
valid. Mayssa further argues that a ruling that the Lebanese marriage was valid
precluded a different judge from subsequently ruling the marriage was void.
1
We will refer to the parties by their first names for clarity.
2
Unless otherwise noted, all statutory references are to the Family Code.
Subsequent citations to section 2201, subdivision (a) shall be cited herein as section
2201(a).
2
We reject Mayssa’s contentions and conclude the trial court did not err in ruling
the bigamous Lebanese marriage was void under section 2201(a). We therefore affirm
the judgment of nullity.
II.
FACTS AND PROCEDURAL BACKGROUND
On August 7, 2014, Mayssa filed in the San Bernardino County Superior Court a
petition entitled, “Petition for Spousal Support Without Dissolution of Marriage,” under
section 4303 (case no. FAMSS1404386). The petition requested spousal support when
there was no pending case for marital dissolution or previous enforceable support order.
Mayssa alleged she and Samir married on August 28, 2012, and there had been no
judgment of nullity, legal separation, or dissolution of marriage entered. Mayssa further
alleged that in May 2014, Samir abandoned her, had ceased cohabiting with her, and had
not provided her with any support.
On August 8, 2014, Mayssa filed a request for order (RFO) for temporary spousal
support, attorney’s fees and costs, and a temporary emergency order against eviction. On
August 19, 2014, Samir filed a responsive declaration objecting to Mayssa’s RFO. Samir
alleged the parties were not married but entered into a temporary marriage contract in
Lebanon, and on June 10, 2014, Samir terminated the marriage contract under Muslim
law. Samir further alleged that Mayssa was fully aware when she married him in
Lebanon that he remained legally married to Angeles, whom he married in 1987, in
California.
3
During the trial of Mayssa’s RFO for temporary support, the court addressed the
issue of awarding spousal support when no dissolution of marriage was requested. The
parties disagreed as to whether they were validly married in Lebanon and divorced. Over
the course of eight months, beginning on September 26, 2014, the court heard evidence
on the matter. Judge Bennett took the matter under submission on May 12, 2015, and on
July 2, 2015, issued a signed ruling, entitled “Tentative Ruling On Submitted Matter.”
Judge Bennett found, based on the evidence presented, including the parties’ testimony
and testimony by experts on Muslim law, that the Lebanese marriage was valid.
Judge Bennett further found that Mayssa did not receive any notice of Samir’s
actions attempting to obtain a divorce. Both Mayssa and Samir were domiciled in
California and entitled to state and federal due process rights. Samir was a United States
citizen, had no residency in Lebanon, and had not lived in Lebanon for over thirty years.
Mayssa had not been in Lebanon for over one year and had no notice of Samir’s actions
attempting to obtain a divorce in Lebanon. Judge Bennett thus concluded in her July 2,
2015 ruling that, “at the time [Mayssa] filed her Petition for Spousal Support Without
Dissolution of Marriage, there was no valid judgment of dissolution of marriage entered
since the termination of the marriage contract was done without notice to [Mayssa] and
an opportunity to be heard in violation of due process.”
4
Litigation resumed on Mayssa’s Petition for Spousal Support without Dissolution
of Marriage. Because the court previously ruled the Lebanese marriage was valid, on
December 16, 2015, Samir filed a petition to nullify the Lebanese marriage based on
bigamy, fraud, and force. Samir requested in his petition that the court find the marriage
void or voidable and terminate the court’s ability to award Mayssa spousal support. The
3
court ordered Samir’s petition (FAMSS1509878 ) consolidated with Mayssa’s spousal
support petition and RFO (FAMSS1404386). The consolidated petitions for spousal
support and to nullify the Lebanese marriage were set for trial.
On February 1, 2016, the court awarded Mayssa monthly temporary spousal
support in the amount of $1,309 and granted Samir’s request to bifurcate his request to
nullify the marriage from trial of “financials.” The court ordered that at the upcoming
trial in May 2016, it would resolve only the issue of whether to nullify the Lebanese
marriage.
On February 24, 2016, Samir filed an RFO to modify temporary spousal support
based on Samir and Angeles stipulating on February 9, 2016, that Samir would pay
4
Angeles monthly child and spousal support. Samir filed a petition for dissolution of his
marriage with Angeles in 2013. On April 14, 2016, the court heard and took under
submission Samir’s RFO to modify support. The court also granted leave for Samir to
change his petition to nullify the Lebanese marriage to a petition for dissolution of the
3
The court designated case no. FAMSS1509878 as the lead case.
4
The stipulation was filed under case no. FAMRS1303184.
5
marriage. That same day, Samir filed his amended petition for dissolution, alleging that
the parties were married. Samir requested a divorce based on irreconcilable differences
and termination of the court’s ability to award support.
On May 19, 2016, the court ruled on Samir’s RFO for modification of temporary
spousal support. The court ordered that upon Samir providing the court with proof he
was paying child support to Angeles pursuant to her and Samir’s support stipulation, the
temporary spousal support awarded to Mayssa would be reduced.
On August 23, 2016, the parties resolved their dispute over spousal support by
executing an “Agreement for Judgment,” agreeing to Samir paying Mayssa a lump sum
of $7,195 for spousal support by September 23, 2016, with the parties waiving all future
spousal support. The court approved the stipulation and ordered it incorporated into a
court order.
During a hearing following the scheduled status conference on July 19, 2017,
Judge Bennett stated that “the Court determined that there was a valid marriage between
[Mayssa] and [Samir], notwithstanding that [Samir] was married to [Angeles] . . . . That
ruling then precipitated [Samir] to amend his petition for a nullity and request dissolution
of marriage. . . . [T]hen there were still issues in the dissolution matter concerning
spousal support.” Judge Bennett added that once the parties reached an agreement on
spousal support, she thought she was done with the case, but then Samir raised an issue
regarding nullity of the marriage and the matter was set for a status conference.
6
At the status conference on July 19, 2017, Judge Bennett told the parties she could
no longer keep the case because of her heavy caseload. Therefore the case was
reassigned to Judge Singley.
On March 13, 2019, Judge Singley commenced the trial on Samir’s petition for
dissolution. Judge Singley sua sponte ordered Samir’s petition for dissolution amended
to allege a request for nullification of the Lebanese marriage, rather than dissolution,
based on evidence of bigamy. The court continued the trial of Samir’s amended petition
for nullity to March 20, 2019. During the trial on March 20, 2019, Samir’s attorney
noted that after his petition for a nullity was filed, Judge Bennett bifurcated the issue of
nullity because it was a threshold issue. Then after Samir amended his nullity petition to
be a petition for dissolution, trial of the issue of nullity went off calendar.
Judge Singley responded, “what I find myself wondering in all of this is what am I
supposed to do with the fact that if the evidence supports the reality if the marriage is
void or violating the Family Code Section that deals with bigamy, am I supposed to
ignore that?” Mayssa’s attorney informed the court that “the only thing before the Court
today is status, community property, and attorney fees and costs. Spousal support has
been adjudicated and it’s done.”
Judge Singley inquired, “How do I get around 2201 of the Family Code, though,
that says a subsequent marriage contracted by a person during the life of his or her former
spouse with a person other than the former spouse is illegal and void unless there’s an
exception[] that [doesn’t] apply here[?]” Judge Singley acknowledged that Judge
7
Bennett tried the issue of whether Samir terminated his Lebanese marriage and ruled he
did not because there was no due process. Judge Bennett therefore ruled the Lebanese
marriage remained a valid marriage.
Judge Singley added, “But that doesn’t necessarily mean that once you find a valid
marriage that it’s not void.” Mayssa’s attorney stated he agreed but said he previously
thought res judicata precluded Mayssa from challenging the court’s previous ruling the
marriage was valid. Mayssa’s counsel, however, believed Judge Singley could make the
determination of whether the marriage was void, and then there would be no need to rule
on dissolution or address the community property issue. Counsel stated he had evidence
proving the first marriage between Samir and Angeles and that the marriage was never
judicially dissolved in this country.
Samir’s attorney argued that because there was no evidence his first marriage was
valid, the court must presume the subsequent Lebanese marriage was valid. In addition,
both parties stated in their pleadings that the Lebanese marriage was valid. Judge Singley
responded that he could allow the petition for dissolution to be a petition for a nullity, to
conform with the evidence. Judge Singley added, “I don’t know how I can stick my head
in the sand and say, oh, there’s two marriages. Let’s just deal with the second marriage
and treat the property issues when—if, in fact, he is validly married to somebody else
prior to marrying [Mayssa]. I would have to completely ignore that. And it just seems
nonsensical to me to ignore that.” Judge Singley stated, “I do agree that [Judge Bennett]
ruled that the marriage between these two parties is valid, but there’s never been a
8
judicial determination as to . . . if that is the case, then does that make the marriage
void[?]”
Judge Singley ended the discussion, after hearing argument, by stating: “Let me
propose the following, because we started trial down Path A. We won’t finish Path A,
but what I propose we do is—I have enough proof before me at this point that I have
some concerns about the statutory implication of 2201. So my proposal is we finish
evidence on the path that we have already started, and I’m going to bring you folks back
on another date to talk about the other issue, on my own motion, as to whether or not—
it’s going to be kind of an either/or. Either I’m going to declare the marriage void under
2201 or not. And if not, then I’m going to render a decision on the dissolution petition
that we have already taken evidence on and we’ll finish up today. But I don’t think I can
simply close the door to that and ignore it and render a decision on the dissolution
without at least addressing the statutory issue of 2201.” The court permitted the parties to
conduct additional discovery and file briefing on the issue. Judge Singley set the matter
for an evidentiary law and motion hearing on May 2, 2019, on the issue of whether the
Lebanese marriage was bigamous and thus void under section 2201(a).
At the hearing on May 2, 2019, Judge Singley heard oral argument and reviewed
Judge Bennett’s ruling on July 2, 2015, vacating the trial on the bifurcated issue of
whether the Lebanese marriage was a nullity. Judge Singley considered only the issue of
bigamy under section 2201(a), and permitted the parties to present evidence on the issue
9
of bigamy. The issue of whether Mayssa was a putative spouse was reserved for future
consideration in the event the court found there was bigamy.
During the hearing, Judge Singley stated that Judge Bennett’s ruling that the
Lebanese marriage was valid did not address the application of section 2201(a). Judge
Singley explained that Judge Bennett found the Lebanese marriage was valid under
Lebanese law because bigamy was permissible, unlike under California law. However,
Judge Bennett also found that Samir’s efforts to terminate the marriage in Lebanon were
ineffective because Samir did not comply with California’s due process standards. Judge
Singley concluded Judge Bennett never considered or ruled on application of section
2201(a) because the parties agreed to amend the petition for nullity to a petition for
dissolution of the marriage, resulting in Judge Bennett vacating the trial date. Judge
Singley stated that Judge Bennett “did not take it to the next step that talks about the fact
that if, in fact, [Samir] was previously married, what is the effect of that valid Lebanese
marriage? Is it void or is it not?” Judge Singley directed Samir to file an amended
petition seeking nullity, which may not have been done.
At the end of the hearing on May 2, 2019, the parties and court agreed to allow
Mayssa to amend the pleadings to add allegations that Mayssa was a putative spouse.
The parties and court also agreed to continue the trial on the issues of the validity of
Samir’s first marriage with Angeles and whether Mayssa was a putative spouse.
10
On August 21, 2019, Judge Singley tried the issue of bigamy under section
2201(a), and permitted the parties to present evidence on bigamy and the validity of
Samir and Angeles’s marriage. The issue of whether Mayssa was a putative spouse was
reserved for future consideration in the event the court found there was bigamy and the
marriage was thus void. After considering the evidence and hearing oral argument, Judge
Singley stated that Judge Bennett ruled that the Lebanese marriage was valid under
Lebanese law but did not take the additional step of ruling on whether it was in violation
of section 2201. This was why he sua sponte raised the issue of whether section 2201(a)
applied. Judge Singley found that Samir met his burden of proving his marriage with
Angeles was a valid marriage existing when he married Mayssa in Lebanon. Judge
Singley therefore concluded that, although the Lebanese marriage was valid under
Lebanese law, it ran “afoul of 2201” and was thus “void in violation of 2201.” Judge
Singley added that “once I declare it void, the law is if either party had a good faith belief
in the validity of the marriage, then I could declare that person a putative spouse.”
The court asked Samir’s attorney if he wanted the court to issue a final order so
that Samir could immediately file a writ petition or appeal the court’s ruling, or whether
Samir preferred that the court proceed with trying the putative spouse issue. Samir’s
attorney requested the latter option because, if the court found there was a putative
spouse, there would be no need to appeal the ruling that the Lebanese marriage was void.
Judge Singley agreed with this approach. The court tried the putative spouse issue and on
November 18, 2019, issued a ruling finding that under section 2251, Mayssa was not a
11
putative spouse because she did not have a good faith belief that her marriage to Samir
was valid in California. The court therefore confirmed its previous finding on August 21,
2019, that the Lebanese marriage was void in violation of section 2201.
On January 24, 2020, the trial court entered a judgment of nullity on the ground of
bigamy under section 2201. The court declared the marriage void and found that Mayssa
was not the putative spouse of Samir. Mayssa filed a notice of appeal of the judgment of
nullity.
III.
STANDARD OF REVIEW
We review de novo questions of law and mixed questions of law and fact that are
primarily legal. (Mercury Ins. Co. v. Lara (2019) 35 Cal.App.5th 82, 97.) Where the
material facts are undisputed and application of California and Lebanese law to the facts
presents pure questions of law, we review the matter de novo. (In re Marriage of Seaton
(2011) 200 Cal.App.4th 800, 806 (Seaton).)
The issue of whether the trial court properly applied section 2201(a) to the parties’
Lebanese marriage is subject to our independent review. (In re Marriage of Tejada
(2009) 179 Cal.App.4th 973, 981 (Tejada).) “‘In construing a statute, our fundamental
task is to ascertain the Legislature’s intent so as to effectuate the purpose of the statute.’
[Citation.] ‘We begin with the language of the statute, giving the words their usual and
ordinary meaning.’ [Citation.] ‘The words of the statute must be construed in context,
keeping in mind the statutory purpose, and statutes or statutory sections relating to the
12
same subject must be harmonized, both internally and with each other, to the extent
possible.’ [Citation.] Thus, ‘every statute should be construed with reference to the
whole system of law of which it is a part, so that all may be harmonized and have effect.’
[Citations.]” (Ibid.)
IV.
ISSUE PRECLUSION
Mayssa contends Judge Singley’s ruling that the Lebanese marriage is void
contradicted Judge Bennett’s ruling that the marriage was valid, and thus violated the
maxim that “[g]enerally, one trial court judge may not reconsider and overrule an interim
ruling of another trial judge.” (In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242,
1248.) “This principle is founded on the inherent difference between a judge and a court
and is designed to ensure the orderly administration of justice. ‘If the rule were
otherwise, it would be only a matter of days until we would have a rule of man rather
than a rule of law. To affirm the action taken in this case would lead directly to forum
shopping, since if one judge should deny relief, defendants would try another and another
judge until finally they found one who would grant what they were seeking. Such a
procedure would instantly breed lack of confidence in the integrity of the courts.’
[Citation.]” (In re Alberto (2002) 102 Cal.App.4th 421, 427; accord, In re Marriage of
Oliverez, supra, at p. 1248.) “For one superior court judge, no matter how well intended,
even if correct as a matter of law, to nullify a duly made, erroneous ruling of another
superior court judge places the second judge in the role of a one-judge appellate court.”
13
(In re Alberto, supra, at p. 427.)
Although there are narrow exceptions to this general rule, none of them apply
here. The exceptions include unavailability of the judge who made the initial ruling to
decide a reconsideration motion; the facts have changed or the judge has considered
further evidence and law; the record shows that the initial decision was based on
inadvertence, mistake, or fraud. (In re Marriage of Oliverez, supra, 238 Cal.App.4th at
pp. 1248-1249.) Mere disagreement with the prior trial judge’s ruling is insufficient to
overturn that ruling. (Id. at p. 1249.)
Mayssa also argues Judge Singley’s ruling violated the doctrine of issue
preclusion (also known as collateral estoppel) because Judge Bennett previously decided
the issue. “Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues
argued and decided in prior proceedings.’ [Citation.]” (Mycogen Corp. v. Monsanto
Co. (2002) 28 Cal.4th 888, 896-897, fn. omitted.)
Under either the principle that one judge cannot overturn an interim ruling of
another judge, or under the doctrine of issue preclusion, Judge Singley’s ruling that the
Lebanese marriage was void was proper. It is undisputed for purposes of this appeal that
Samir’s marriage to Mayssa was a valid marriage under the law of Lebanon, where the
marriage occurred. (§ 308.) Judge Bennett tried the issue and on July 2, 2015, found the
marriage was valid under Lebanese law. Judge Bennett, however, did not consider the
issue of whether the marriage was a void bigamous marriage under section 2201(a).
Before she had an opportunity to do so, the parties stipulated to change the petition from
14
a request to nullify the marriage based on bigamy, to a petition for dissolution of the
Lebanese marriage. The matter was then continued for further proceedings and
reassigned to Judge Singley.
Judge Singley thereafter clearly stated when ruling the Lebanese marriage was
void, that he was not rejecting, contradicting, or reversing Judge Bennett’s ruling that the
Lebanese marriage was valid under Lebanese law. The record shows that during the trial
on March 20, 2019, Judge Singley stated he agreed with Judge Bennett’s previous ruling
on July 2, 2015, that the Lebanese marriage was valid under the law of the jurisdiction
where the marriage occurred. (§ 308.) He added, “But that doesn’t necessarily mean that
once you find a valid marriage that it’s not void.”
Judge Singley further stated, “I do agree that [Judge Bennett] ruled that the
marriage between these two parties is valid, but there’s never been a judicial
determination as to . . . if that is the case, then does that make the marriage void[?]”
Judge Singley noted that Judge Bennett did not consider or decide the issue of whether
the Lebanese marriage was void under section 2201(a) as a bigamous marriage. He
therefore continued the matter to allow the parties to litigate the issue.
After Judge Singley tried the issue on August 21, 2019, he ruled that the Lebanese
marriage was void under section 2201(a). The ruling does not violate the doctrine of
issue preclusion or prohibition against one judge reconsidering the ruling of another
judge, because there was no previous ruling on the issue. Judge Bennett only tried and
15
decided the issue of whether the Lebanese marriage was valid under Lebanese law. She
did not decide whether it was a void bigamous marriage under section 2201(a).
V.
THE PARTIES’ PLEADING ALLEGATIONS
ADMITTING MARRIAGE
Mayssa argues that Judge Singley erred in ruling that the Lebanese marriage was
void because she and Samir both admitted in their pleadings, “We are married.” Mayssa
therefore asserts the validity of their marriage was not at issue and the court’s findings
contradicting the parties’ judicial admissions that they were married was error.
Mayssa cites Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th
1264 (Valerio), in support of this proposition. The court in Valerio explained that “[t]he
admission of fact in a pleading is a ‘judicial admission.’ Witkin describes the effect of
such an admission: ‘An admission in the pleadings is not treated procedurally as
evidence; i.e., the pleading need not (and should not) be offered in evidence, but may be
commented on in argument and relied on as part of the case. And it is fundamentally
different from evidence: It is a waiver of proof of a fact by conceding its truth, and it has
the effect of removing the matter from the issues. Under the doctrine of “conclusiveness
of pleadings,” a pleader is bound by well pleaded material allegations or by failure to
deny well pleaded material allegations. [Citations.]’ (4 Witkin, Cal. Procedure (4th ed.
1997) Pleading, § 413, pp. 510-511.)” (Valerio, supra, 103 Cal.App.4th at p. 1271.)
16
The Valerio court further stated that, “‘“When a trial is had by the Court without a
jury, a fact admitted by the pleadings should be treated as ‘found.’ . . . If the court does
find adversely to the admission, such finding should be disregarded in determining the
question whether the proper conclusion of law was drawn from the facts found and
admitted by the pleadings. . . . In such case the facts alleged must be assumed to exist.
Any finding adverse to the admitted facts drops from the record, and any legal conclusion
which is not upheld by the admitted facts is erroneous.” [Citations.]’ [Citation.]”
(Valerio, supra, 103 Cal.App.4th at p. 1271.) “[A] judicial admission is ordinarily a
factual allegation by one party that is admitted by the opposing party. The factual
allegation is removed from the issues in the litigation because the parties agree as to its
truth.” (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452.)
In the instant appeal, there is no dispute over the material facts underlying the
determination the Lebanese marriage was valid under Lebanese law. Nor are Judges
Bennett and Singley’s findings that the marriage is valid under Lebanese law at issue
here. Rather, as discussed above, the issue is whether Judge Singley erred as a matter of
law in ruling that the Lebanese marriage was void under section 2201(a). This is a legal
issue, not a factual issue alleged in the pleadings. Therefore, regardless of the parties’
allegations that they were married, Judge Singley properly ruled the Lebanese marriage
was void under section 2201(a).
17
In addition, the trial court had the authority to allow the parties to amend the
pleadings based on evidence presented at trial. (Barsegian v. Kessler & Kessler, supra,
215 Cal.App.4th at p. 452.) “A judicial admission in a pleading is not set in stone,
however, because ‘[t]he trial judge . . . has discretion to relieve a party from the effects of
a judicial admission by permitting amendment of a pleading[.]’ (4 Witkin, Cal.
Procedure (5th ed. 2008) Pleading, § 454, p. 587.) In addition, in certain contexts a party
may be permitted to introduce evidence contradicting the party’s own allegations even in
the absence of an amendment.” (Id. at p. 452, fn. 2.)
While Judge Singley was trying the parties’ petitions, evidence was presented
supporting a finding of bigamy, which resulted in Judge Singley continuing the trial to
allow the parties to conduct additional discovery, present supplemental briefing, and
present additional evidence and argument on the issue of whether the Lebanese marriage
was void under section 2201(a). The evidence presented on the issue was sufficient to
support amending the pleadings to conform to the evidence that the Lebanese marriage
was void under section 2201(a).
Mayssa argues that the record does not show that the pleadings were properly
amended to allege a request to nullify the Lebanese marriage, even though the trial court
suggested that Samir do so. Even assuming the pleadings were not amended, Mayssa has
not demonstrated she raised the objection in the trial court and therefore forfeited the
objection on appeal.
18
“[A] reviewing court ordinarily will not consider a challenge to a ruling if an
objection could have been but was not made in the trial court. [Citation.] The purpose of
this rule is to encourage parties to bring errors to the attention of the trial court, so that
they may be corrected. [Citation.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “In In re
S.B., the California Supreme Court noted that ‘the loss of the right to challenge a ruling
on appeal because of the failure to object in the trial court . . . is [a] “forfeiture,” because
a person who fails to preserve a claim forfeits that claim.’” (Hacker v. Homeward
Residential, Inc. (2018) 26 Cal.App.5th 270, 281, fn. 10, quoting In re S.B., supra, at p.
1293, fn. 2.) “[T]he appellate court’s discretion to excuse forfeiture should be exercised
rarely and only in cases presenting an important legal issue.” (In re S.B., supra, at p.
1293.) The instant case is not one of those rare instances warranting excusing Mayssa’s
failure to object to the pleadings not being amended to conform to the evidence and
issues tried.
We also conclude the parties’ pleading allegations that they were married did not
preclude the court from ruling that their marriage was void under section 2201(a).
VI.
APPLICATION OF CALIFORNIA LAW
TO A FOREIGN BIGAMOUS MARRIAGE
Mayssa contends the trial court erred in relying on California law when ruling the
Lebanese marriage was void under section 2201(a). Mayssa argues that under section
308, the validity of a marriage is tested under the law of the place where it occurs. She
19
asserts that because the bigamous Lebanese marriage was valid under Lebanese law, the
trial court erred in ruling it was void under California law. (Seaton, supra, 200
Cal.App.4th at p. 807; § 308.)
Under section 308, “[a] marriage contracted outside this state that would be valid
by laws of the jurisdiction in which the marriage was contracted is valid in California.”
Therefore Lebanese law applied, not California law, to determining the validity of the
Lebanese marriage. Mayssa argues that although Samir had two simultaneous marriages,
the second marriage in Lebanon was valid because Lebanese law permits bigamy.
Even though Lebanese law applied under section 308 to the determination of
whether the Lebanese marriage was valid, this did not foreclose the court from applying
California law when determining whether the marriage was void as bigamous under
section 2201(a). In support of this proposition, Samir cites McDonald v. McDonald
(1936) 6 Cal.2d 457 (McDonald), Brandt v. Brandt (1939) 32 Cal.App.2d 99, Tejada,
supra, 179 Cal.App.4th 973, and Seaton, supra, 200 Cal.App.4th 800. Mayssa argues
these cases are distinguishable and do not support application of section 2201(a) to the
valid Lebanese marriage. Although we are not aware of any case law that directly
addresses applying section 2201(a) to a foreign bigamous marriage, in which the
applicable foreign law allows bigamy, we conclude there is sufficient case law supporting
application of section 2201(a) to the Lebanese marriage.
20
McDonald, supra, 6 Cal.2d 457, and Brandt v. Brandt, supra, 32 Cal.App.2d 99,
do not address the interplay between sections 308 and 2201(a) because they were decided
before enactment of section 2201 and its predecessor statute, Civil Code section 4401
(§ 2201 did not substantively change former Civil Code Section 4401, added by Stats.
1969, c. 1608, § 8). However, McDonald and Brandt state that in California, a bigamous
marriage is against public policy and therefore invalid. The court in McDonald stated
that even though, normally, the validity of a marriage is governed by the law of the situs
of the marriage, an exception applies if the marriage is contrary to California’s public
policy, such as a polygamous marriage. (McDonald, supra, at pp. 459-460 [“An
exception, of course, arises when the marriage is regarded as odious by common consent
of nations, e. g., where it is polygamous.”]) McDonald supports the proposition that,
although normally under section 308 the law of the jurisdiction where a marriage is
entered determines whether the marriage is valid, California law supersedes the other
jurisdiction’s law if the marriage violates California public policy against bigamy.
(McDonald, supra, at pp. 459-460.)
Brandt likewise supports the proposition that a bigamous foreign marriage violates
California public policy and is void under California law. In Brandt, Peter Clippage, also
known as Peter Brandt, married Mary Barany in Pennsylvania and then deserted her.
While she was still living and the marriage between her and Peter remained undissolved,
Peter married Katherina Brandt in Illinois and then the couple moved to California.
When Katherina discovered 22 years later that Peter was married to another woman, she
21
left him. Peter brought an action to annul his marriage with Katherina and to adjudicate
title to real property acquired by the parties during the marriage. Katherina filed a cross-
complaint also requesting annulment of the marriage and requested the court to award her
all of the property. Peter and Katherina stipulated to Katherina proceeding with her
cross-complaint for annulment without contest by Peter, and the trial court entered a
decree annulling the marriage. Peter appealed from that portion of the judgment
awarding the residence to Katherina.
The court in Brandt noted that Peter did not challenge the decree annulling the
marriage, nor could he, because “‘[a]s a matter of public policy, the court should, at the
first opportunity, enter its decree annulling such a marriage, to the end that the public be
protected so far as possible from the evils of such unlawful acts and to prevent the
innocent from suffering therefrom.’” (Brandt v. Brandt, supra, 32 Cal.App.2d at p. 101.)
Samir cites Tejada, supra, 179 Cal.App.4th 973, for the proposition that “[o]ne
may never legally remarry prior to dissolution of his or her existing marriage.” This
principle is codified in section 2201(a). Tejada does not address the issue of whether
section 2201(a) governs a foreign marriage which is valid under the law of the situs of the
marriage. The only mention of section 2201 in Tejada is in the procedural history section
of the opinion, which mentions that the putative wife argued in the trial court that her
marriage was bigamous and thus void under section 2201. The statement of procedural
facts also states that the trial court found the marriage was either void or void because the
putative wife was already married. (Tejada, supra, 179 Cal.App.4th at p. 978.) Tejada is
22
not helpful here because the issue in Tejada was not whether section 2201 applied to a
bigamous marriage, but whether the parties’ bigamous marriage was a putative marriage
requiring division of the quasi-marital property as community property. (Tejada, supra,
at p. 977.)
Mayssa cites Seaton, supra,200 Cal.App.4th 800, for the proposition that the
validity of a marriage is tested based on the law of the place where it occurs. (Id. at p.
807.) But even assuming the Lebanese marriage was valid under Lebanese law and must
be recognized as such under section 308, the marriage is nevertheless void under section
2201(a) because California does not recognize bigamous marriages.
In Seaton, supra, 200 Cal.App.4th 800, Patricia Seaton married Richard LaForm
in 1987. After separating from him, in 1988, Patricia married Henry Marquez in Nevada.
Thereafter, Patricia’s marriage to Richard was dissolved. Then Patricia married Jeffrey
Seaton in 1991, in California. In 2008, Jeffrey filed a petition for legal separation and
Patricia filed a request for dissolution. The court permitted Jeffrey to file an amended
petition requesting a judgment of nullity based on Patricia’s marriage to Henry. After a
court trial on Jeffrey’s petition, the court nullified the marriage between Jeffrey and
Patricia on the ground Patricia was married to Henry when she married Jeffrey. (Seaton,
supra, at p. 805.) The Seaton court held on appeal that Patricia’s marriage to Henry was
void because Patricia was still married to Richard when she married Henry. The Seaton
court therefore held that Patricia’s marriage to Jeffrey was not bigamous and was thus
valid. (Id. at pp. 806, 808.)
23
The court in Seaton was required to consider Nevada law to determine the validity
of Henry’s marriage to Patricia because Jeffrey argued Patricia’s marriage to Henry in
Nevada had not been “dissolved or adjudged a nullity before the date of the subsequent
marriage” to Jeffrey. (§ 2201, subd. (a)(1).) The question of whether Patricia’s marriage
to Jeffrey was void turned on whether she was married to Henry when she married
Jeffrey. (§ 308, subd. (a); Colbert v. Colbert (1946) 28 Cal.2d 276, 280.) The Seaton
court noted that Nevada law was consistent with California law prohibiting bigamous
marriages as void, even without any divorce decree or annulment or other legal
proceedings. (Seaton, supra, 200 Cal.App.4th at pp. 807-808 [“In Nevada, as in
California, a bigamous marriage is void. . . [a]nd the invalidity of a void marriage may be
shown collaterally in any proceeding in which the fact of marriage may be material.”])
As in Seaton, the instant case concerns the issue of bigamy, with one of the
marriages entered into out of state. But in the instant case, unlike in Seaton, the second
marriage was valid under Lebanese law which allows bigamy. Seaton does not address
the issue raised in the instant case of applying section 2201(a) to a bigamous foreign
marriage that is valid under the law of another country.
In addition to the foregoing case law, Penal Code section 281 demonstrates that in
California a bigamous marriage is against public policy and therefore application of
section 2201(a) to such a bigamous marriage is proper even if the bigamous foreign
marriage is valid under the law of the situs of the marriage. Penal Code section 281
states that “Every person having a spouse living, who marries . . . is guilty of bigamy.”
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(Pen. Code, § 281, subd. (a).) Penal Code section 281 further states in relevant part that,
“[u]pon a trial for bigamy, . . . when the second marriage . . . took place out of this state,
proof of that fact, accompanied with proof of cohabitation thereafter in this state, is
sufficient to sustain the charge.” (Pen. Code, § 281, subd. (b).)
Mayssa cites Estate of Bir (1948) 83 Cal.App.2d 256, for the proposition that
California public policy does not preclude California courts from recognizing foreign
bigamous marriages. While that may be true under Bir as to intestate succession, it is not
the case where the parties to the marriage are alive and seeking adjudication of their
rights to support, child custody, or division of their assets under California family law.
In Estate of Bir, supra, 83 Cal.App.2d 256, the court recognized under principles
of comity, the decedent’s marriage entered in India, where the laws of India permitted
bigamous marriages. Bir is inapposite because the court’s recognition of the bigamous
foreign marriage was solely in the context of a petition to determine intestate succession
by the decedent’s two wives, who were residents of India, not California.
The court in Wong v. Tenneco, Inc. (1985) 39 Cal.3d 126, 135-136, explained that
the public policy exception to the comity doctrine “precludes application of a foreign
state’s law where to do so would violate California’s public policy. [Citations.] The
standard, however, is not simply that the law is contrary to our public policy, but that it is
so offensive to our public policy as to be ‘prejudicial to recognized standards of morality
and to the general interests of the citizens . . . .’ [Citations.]” (Id. at p. 135.) Even when
a foreign law offends public policy, “it may still be applied in a limited context where the
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potential harm is minimal” (id. at p. 136.), as the court found in Estate of Bir, supra, 83
Cal.App.2d at pp. 261-262 [in the context of intestate succession only, India’s law
permits polygamy to be applied under principles of comity]. (Wong v. Tenneco, Inc.,
supra, at p. 136; italics added.)
The court in Bir stated that “Where only the question of descent of property is
involved, ‘public policy’ is not affected. . . . True, there are cases holding invalid
polygamous marriages entered into in places where such marriages are legal, but in each
such case found, all the parties were living and no question of succession to property was
considered. . . . ‘Public policy’ would not be affected by dividing the money equally
between the two wives, particularly since there is no contest between them and they are
the only interested parties.” (Estate of Bir, supra, 83 Cal.App.2d at pp. 261-262.)
In the instant case, unlike in Estate of Bir, supra, 83 Cal.App.2d 256, the parties to
the bigamous marriage are both living, there is a dispute over their marital rights to
support and the division of property under the California Family Code. Section 2201(a),
Penal Code section 281, and case law supports the determination that bigamous
marriages in California are against public policy, illegal, and thus void. We therefore
conclude the trial court properly ruled that the Lebanese bigamous marriage was void
under section 2201(a).
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VII.
SUFFICIENCY OF EVIDENCE TO OVERCOME
PRESUMPTION OF MARRIAGE
Mayssa argues there was insufficient evidence to overcome the presumption that
the Lebanese marriage was valid. We disagree.
As discussed above, the validity of the Lebanese marriage is not disputed on
appeal. Judge Bennett tried the issue and found the Lebanese marriage was valid under
Lebanese law. Judge Singley subsequently accepted that finding as true but raised sua
sponte the issue of whether the Lebanese marriage was nevertheless void as bigamous
under section 2201(a). During the trial of that issue, Judge Singley permitted the parties
to present evidence on whether the Lebanese marriage was bigamous. Samir presented
sufficient evidence establishing that the Lebanese marriage was a void bigamous
marriage by presenting evidence he was already married to Angeles when he married
Mayssa in Lebanon. Such evidence included Samir and Angeles’s marriage certificate
and Samir’s testimony that he married Angeles in 1987, and had remained married to her
for almost 35 years, including when he married Mayssa in Lebanon in 2012.
The instant appeal concerns whether Judge Singley erred in applying section
2201(a) to the Lebanese marriage, which the trial court found was valid under Lebanese
law. We conclude Judge Singley properly applied section 2201(a) and there was
sufficient evidence to support his finding the Lebanese marriage was bigamous and
therefore void under section 2201(a).
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VIII.
DISPOSITION
The judgment is affirmed. Samir is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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Marriage of Elali & Marchoud
Combined Opinion