First Bigamous Marriage Void, So Second “Bigamous” Marriage Valid

IRMO Seaton (2011 DJDAR 16342), 3rd App. Dist., November 8, 2011

First Bigamous Marriage Void, So Second “Bigamous” Marriage Valid

Patricia was married to Richard (#1) when she married Henry (#2) during a weekend trip to Reno in May, 1988, just ten days she had gotten a restraining order against him.  A restraining order she obtained with the help of her then just divorced love interest Jeffrey (#3).

After seventeen years of marriage, Jeffrey sought a Judgment of Nullity claiming that Patricia’s Nevada marriage to Henry had not been nullified.  Relying on Williams, (2004) 120 Nev. 559, the trial court found Patricia’s marriage to Jeffrey void because the marital relationship with Henry had not been legally severed (and the trial court did not declare the Henry marriage void because it lacked personal jurisdiction over Henry).

The Court of Appeal reversed because Patricia’s bigamous marriage to Henry was void at its inception under Family Code § 2201.  Therefore when Patricia obtained a Judgment of Dissolution against first husband Richard in December, 1988, her subsequent Jeffrey marriage in June, 1991 was valid.  In both California and Nevada, an annulment decree from “husband #2 was not required because a bigamous marriage is void – “not merely voidable at the option of one of the parties” – even in the absence of an annulment decree. Lockyer v. San Francisco (2004) 33 Cal.4th 1055, 1114 (at the time same sex marriages void) and McClintock (2006) 122 Nev. 842, 845 (despite the dicta in Williams requiring annulment proceeding to sever legal ties).  The Henry marriage was not a voidable marriage but a void marriage, and did not require any judicial declaration of nullity.  So Patricia’s putative spouse contentions under Family Code § 2251 were not reached and she benefits from her deception.

 

Implicit Waiver of Fees Found in Broad Language of MSA

IRMO Guilardi (2011 DJDAR 16245), 6th App. Dist., November 7, 2011

Implicit Waiver of Fees Found in Broad Language of MSA

After sixteen years of marriage, Wife entered into an MSA only one month after separation and without counsel.  Incorporating the MSA, Judgment was entered on October 12, 2005.  On October 11, 2006, Wife moved to set aside the Judgment and MSA.  While noting the MSA as inequitable on its face, the trial court denied Wife’s request to set aside the Judgment.  Without any express waiver of fees in the MSA, Wife sought fees based on Family Code § 2030.  In turn, Husband moved to dismiss her fee request because the MSA provided attorney fees to the prevailing party in any related action.  The trial court found “an implicit waiver of any claims other than those available to the prevailing party” and denied Wife’s fee request.

Despite the absence of an express waiver of Family Code § 2030, the Court of Appeal affirmed the trial court’s ruling as the MSA “broadly encompasse[d] claims either party might bring against the other.”  Wife failed to show how the prevailing party right could simultaneously exist with the needs based right, and also failed to show how she was pursuing rights as an advocate for the parties’ child.  Relying in part on Taliaferro, (1962) 200 Cal.App.2d 190, 198, and Grolla, (1957) 151 Cal.App.2d 253, 260, the Court of Appeal found an implied waiver in the broad language of the MSA to deny Wife’s appeal.