A-7856688.
Decided by Board May 21, 1954.
Marriage — Effect of annulment in California on voidable marriages.
Under California law, the rule is firmly established that the annulment of a void or voidable marriage makes the marriage a nullity ab initio. Therefore, when judgment is entered by the court, the marriage is considered as having been judicially annulled retroactively to the date of inception.
CHARGE:
Warrant: Act of May 14, 1937 — Preference quota visa obtained by fraud — Contracting a marriage judicially annulled after entry retroactively to date of marriage.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding the respondent deportable on the ground stated above and denying discretionary relief.
Respondent is a 39-year-old married male, native and citizen of Yugoslavia, who was admitted to the United States for permanent residence in 1950 upon presentation of a preference quota immigration visa. The special inquiry officer found that the evidence establishes that the preference quota visa which the respondent presented to secure admission was secured by fraud in that it was based on a marriage which, subsequent to respondent's entry, was judicially annulled retroactively to the date of the marriage. Counsel contends that the annulment was invalidly issued by the court; and that it is not retroactive to the date of the marriage. Further, it is requested that as a discretionary matter, the alien be permitted to remain in the United States because he is of good character and would become a good citizen.
Respondent was given the status of a first preference quota immigrant by reason of his marriage on December 9, 1949, in France. This marriage was annulled on January 14, 1952, by the Superior Court of the State of California, in and for the county of Los Angeles. The findings of fact and conclusions of law entered by the court reveal that the female's "consent to said marriage contract was induced by fraud on the part of the defendant (respondent) in that at the time said marriage was performed and said contract entered into defendant did not intend to cohabit with the plaintiff upon arriving in the United States of America and married plaintiff for the sole purpose of obtaining a visa to gain entry into the United States." The court concluded that "the marriage is voidable and should be annulled because of defendant's fraud." On January 14, 1952, judgment of annulment of a voidable marriage was entered holding that "the marriage heretofore entered into by and between plaintiff and defendant be and the same is hereby annulled." Respondent was represented by counsel who appeared and agreed to the entry of judgment by default.
Deportation of respondent is sought under section 3 of the act of May 14, 1937, which makes deportable "any alien who at any time after entering the United States is found to have secured either a nonquota or preference-quota visa through fraud, by contracting a marriage which, subsequent to entry into the United States, has been judicially annulled retroactively to date of marriage."
The first issue we must therefore determine is whether the marriage in question has been judicially annulled retroactively to the date of marriage. Counsel urges that the judgment, as a matter of law, did not annul the marriage retroactively to the date of the marriage. He distinguishes between the effect of an annulment on a void and a voidable marriage. While he agrees that the annulling of a void marriage operates retroactively, he contends that a judgment annulling a voidable marriage is effective only from the date of judgment, and that the marriage involved herein, if a proper subject for annulment at all, is a voidable marriage.
We agree that the marriage is a voidable one, but we do not find that the contention that its nullity is effective from the date of judgment is supported by the California decisions. A review of these decisions reveals that the rule is firmly established that the annulment of a voidable marriage makes the marriage a nullity ab initio. In Estate of Gregorson, 160 Calif. 21, 25, 116 P. 60, the court stated that even if a marriage is only voidable a decree of nullity "determines that no valid marriage ever existed." This was cited with approval in McDonald v. McDonald, 6 Calif. (2d) 457, 58 P. (2d) 163.
In re Eichhoff, 101 Calif. 600, 36 P. 11, the court stated concerning a voidable marriage, "It did not render the marriage void, but simply declared that it had been void, and the marriage thereby annulled is to be regarded as never having, in fact, existed, except insofar as was necessary to protect the civil rights that others may have acquired in reliance upon its apparent validity."
In Coats v. Coats, 160 Calif. 671, 118 P. 441, the court stated the following concerning a voidable marriage: "The effect of a decree of nullity is to declare that the marriage was void from the beginning."
Millar v. Millar, 175 Calif. 797, 167 P. 394, involved among other matters the annulment of a marriage induced by fraud — a voidable marriage. The nature of such an annulment was explained by the court as follows:
* * * An annulment proceeding is maintained upon the theory that, for some cause existing at the time of marriage, no valid marriage ever existed. This is true even though the marriage be only voidable at the instance of the injured party, or in the words used in Estate of Gregorson * * *, "capable of being annulled." And the decree of nullity in such a proceeding determines that no valid marriage ever existed. * * *Millar is cited in support of the statement in Withers v. Superior Court of California, 91 Calif. App. 735, 267 P. 547, that after the entry of an annulment decree, the parties were "as though they had never been married."
Counsel has chosen to ignore these cases which we have cited. We, therefore, do not have the benefit of his comment upon them. These cases establish the rule in California to be that a voidable marriage upon annulment is to be regarded as having never existed, except insofar as is necessary to protect the civil rights that others may have acquired in reliance upon its apparent validity. Cases cited by counsel are not pertinent. He relies upon In re Gosnell's Estate, 63 Calif. App. (2d) 38, 146 P. (2d) 42; and In re Karau's Estate, 26 Calif. App. (2d) 606, 80 P. (2d) 108.
Gosnell's Estate is a case which concerned the fact that a California court had annulled a marriage which had occurred in Nevada and caused the annulment decree to read that the marriage was void ab initio. On appeal, the court held that in determining the right of a party to seek an annulment, the California courts are "governed by the law which determines the validity of the marriage," and that since the marriage in question occurred in Nevada, the law of Nevada was controlling. The law of Nevada provided that a marriage "shall be void from the time its nullity is declared." The appeal court held that since the Nevada law was controlling, and since it provided for the nullification of the marriage as of the date of judgment, the California tribunal was without authority to annul the marriage ab initio. It is undisputed that the California law does not contain the same limitation as the Nevada law. Gosnell's Estate construed the law of Nevada, not the law of California, regarding annulment. The issue before us was not presented (See Briggs v. United States, 90 F. Supp. 135, 140, Court of Claims, footnote 1).
Karau involved the effort of a surviving sister of a person devoid of understanding to obtain letters of administration in California in opposition to the efforts of the representative of the decedent's husband. The surviving sister contended that the marriage of her sister, which had taken place in Nevada, was void because of the decedent's lack of understanding. Neither of the parties to the marriage had ever attempted to attack the marriage and no annulment had ever been obtained. The marriage terminated by reason of the death of one of the parties. The court ruled that a voidable marriage existed under the laws of both California and Nevada; that the marriage had never been declared void in accordance with the laws of either state. The marriage was not void under California laws because an annulment had not been obtained. The marriage was not void under Nevada law, because the Nevada law provided that the marriage of a person devoid of understanding shall be void from the time its nullity is declared by the court. Nowhere do we find any support for counsel's contention that in this case the court identified "a California annulment of a voidable marriage as identical with one under the laws of Nevada where an annulment takes effect only from its declaration." No annulment was involved.
As further proof of his contention that the California annulment in the instant case is effective from the date of the declaration of nullity and not from its beginning, counsel has established that in California there are two different court forms for the entry of judgment of annulment by default. One form relates to the annulment of a "void marriage" and reads that the marriage is "hereby declared to be void from the beginning, and is annulled"; the other relating to a "voidable marriage" declares the marriage is "annulled" without the phrase "to be void from the beginning." The reason for the distinction in the entry of the judgments has not been made clear to us. However, we must assume that it has some meaning not related to defining the date of the nullity of the marriage, for the law clearly establishes that the marriage is void ab initio whether it was classified as a voidable or void marriage.
We conclude that the annulment of the marriage herein, except for certain matters with which we are not concerned, voided the marriage ab initio — retroactively.
We come now to counsel's contention that the decree of annulment was invalidly issued, because the law which determines the validity of the marriage determines its nullification and the law of France where the marriage occurred does not make the alleged fraud of respondent a ground for annulment. It is also urged that fraud was committed upon the court in obtaining the annulment. An annulment entered under California law may be collaterally attacked, and the Government could attack this decree if respondent had made it the basis of rights and it desired to attack it ( Briggs v. United States, supra; see Price v. Price, 24 Calif. App. (2d) 462, 75 P. (2d) 655). However, the Service does not attack the validity of the annulment and we believe respondent is barred from attacking it here on the ground urged. First, we must observe that the court which granted the annulment had jurisdiction of both parties who were domiciled and resided in California. If any fraud were involved, it was not exercised to give the court a jurisdiction which it did not possess. The parties were properly before the court. Furthermore, section 86 of the California Civil Code provides that "A judgment of nullity of marriage is conclusive only as against the parties to the action and those claiming under them." The judgment of annulment would therefore appear to be conclusive as to the respondent, a party to the action. He is barred from attacking it in the manner attempted herein (see Price v. Price, supra). In addition, we note the decree was entered with at least the tacit consent of respondent who made no attempt to oppose the grant of annulment based on his fraud when he had his day in court. He refers to no attempt made subsequently to purge the record of the alleged fraud. He has taken advantage of this decree and caused an innocent third party to enter into marriage with him. Under all these circumstances, we do not believe that the question as to whether the facts in the case would be grounds for an annulment under the laws of France or whether fraud was practiced upon the court in establishing a ground of annulment, is a proper subject for inquiry herein.
The final contention for consideration is counsel's claim that the entry of a judgment of annulment, instead of a decree of divorce, should be considered a fortuitous matter; and that the respondent should be held as one who was merely divorced. We do not believe that a decree of a court annulling a marriage should be assumed to be other than the result of the court's desire to enter a proper decree upon the facts before it. "The grounds for divorce in California are entirely different from the grounds for annulment and the court would scarcely grant one where the other was indicated" ( Briggs v. United States, supra). Furthermore, "annulment is not a relief granted promiscuously as a matter of right." "The State is interested in seeing to it that no marriage is declared void as a result of fraud or collusion, and that the statutory grounds on which the annulment is sought actually do exist" ( Maslow v. Maslow, 117 Calif. App. (2d) 237, 255 P. (2d) 65). A judgment of annulment was entered. We cannot say that it was a decree of divorce.
We conclude that the marriage which was the basis for the issuance of the preference quota visa respondent obtained was subsequent to his entry judicially annulled retroactively to the date of marriage and that he was properly found deportable. Application for discretionary relief has been made. We believe this was properly disposed of by the special inquiry officer and requires no further comment.
Order: It is ordered that the appeal be and the same is hereby dismissed.