Filed 5/18/20 Marriage of Banez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of MONIQUE AND JOSE PALMA BANEZ.

MONIQUE ANGELES BANEZ,

Plaintiff and Respondent,

v.

JOSE PALMA BANEZ,

Defendant and Appellant.

E072339

(Super.Ct.No. FAMSS1807375)

OPINION

APPEAL from the Superior Court of San Bernardino County. Michael J. Torchia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Jose Palma Banez, Defendant and Appellant in pro. per.

No appearance for Plaintiff and Respondent.

In this divorce proceeding, the wife obtained a default judgment. The husband filed a motion to set aside the default and the default judgment, but only so he could pursue an annulment rather than a divorce. The trial court denied the motion.

The husband appeals. We will conclude that he has not shown any prejudicial error. Hence, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Jose and Monique were married in September 1966. According to Monique, they separated in July 2018.

On August 29, 2018, Monique, in pro per., filed a divorce petition. On September 11, 2018, she filed a request for a temporary restraining order (TRO).

The petition was served on Jose on October 9, 2018. Also on October 9, he tried to file a response, but it was rejected, due to multiple defects. On October 18, 2018, he tried to file a response to the petition again, but it was rejected again, as incomplete.

On November 28, 2018, the date set for the hearing on the request for a TRO, Jose appeared, but Monique did not. The trial court denied a TRO.

On January 8, 2019, at Monique’s request, the trial court entered Jose’s default. On January 14, 2019, it entered a default judgment of dissolution.

On January 18, 2019, Jose, in pro per., filed a motion to set aside the default and the default judgment. He acknowledged that his first response had been rejected, but he pointed out that he had mailed in a corrected response — either ignoring or unaware of the fact that it, too, had been rejected.

On February 6, 2019, Monique began appearing through counsel.

On February 20, 2019, Jose filed a declaration in which he requested an annulment rather than a divorce. He asserted that Monique was not a virgin when they married, as shown by the fact that she did not bleed when they had sex on the wedding night. Indeed, on the date of the wedding, she was eight weeks pregnant. He also asserted that she sometimes had “two or three boyfriends at the same time . . . .” She had had a “long[ ]running . . . adulterous relationship[]” with one particular man since 1966.

On February 28, 2019, at the hearing on the motion to set aside, Jose agreed that he did not “want to stay married any more [sic],” but he insisted that he wanted an annulment rather than a divorce.

The trial court denied both the motion to set aside and the request for an annulment. It explained: “Your marriage is going to be dissolved and there is no reason to set [the judgment] aside to try to change the reason for the dissolution because California is a no-fault state. [¶] If what you say happened, happened, it still wouldn’t make any difference as far as what would happen in your divorce.” On April 16, 2019, it entered a formal written order to the same effect.

II

DISCUSSION

A. Monique’s Failure to File a Respondent’s Brief.

Monique has not filed a respondent’s brief. “[F]ailure to file a respondent’s brief does not mandate automatic reversal, however. Instead, we examine the record and reverse only if prejudicial error is found. [Citations.]” (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 593, fn. 2.)

B. Denial of the Motion to Set Aside the Default.

Jose does not argue that he showed good cause — i.e., “mistake, inadvertence, surprise, or excusable neglect” — to set aside his default. (See Code Civ. Proc., § 473, subd. (b).) Hence, he has forfeited any such argument. (In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 817.)

We also note that his motion to set aside did not include a copy of his proposed response, as required. (Code Civ. Proc., § 473, subd. (b) [“Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted . . . .”].) Thus, the trial court was required to deny the motion. (Ibid.)

Because Jose remained in default, he was not entitled to participate in the proceeding; in particular, he was not entitled to request an annulment. (See In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1037.)

C. Denial of the Request for an Annulment.

Even assuming the trial court erred by denying the motion to set aside, Jose has not shown that the denial was prejudicial. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Elsner v. Uveges (2004) 34 Cal.4th 915, 939.)

Jose was in agreement with terminating the marriage. He sought to set aside the default judgment only so he could seek an annulment rather than a divorce.

The trial court seems to have reasoned that Jose was not prejudiced because there is no significant difference between a divorce and annulment. If so, that is incorrect. In a divorce, Monique could seek spousal support. In an annulment, however, she would not be entitled to spousal support unless she was a putative spouse — i.e., she had a good-faith belief in the validity of the marriage. (Fam. Code, § 2254; Hogoboom, et al., Cal. Practice Guide: Family Law (The Rutter Group 2020) ¶ 2.18, p. 2-8, ¶ 19.64, p. 19-20.) And if, in fact, she got Jose to marry her through fraud, she would have difficulty showing any such belief. (Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1126-1127 [putative spouse status requires only subjective good faith, but a “claim of subjective good faith may be more likely to succeed if it was a reasonable belief . . . .”].)

Alternatively, however, the trial court may have reasoned that Jose was not prejudiced because he had not stated sufficient grounds for an annulment. That would be correct.

The grounds for an annulment in California include: (1) incest, (2) bigamy, (3) minority, (4) unsound mind, (5) force, (6) physical incapacity, (7) lack of a license, and (8) lack of solemnization. (Fam. Code, §§ 300, 306, 2200, 2201, 2210; see generally Hogoboom, et al., supra, ¶¶ 19:85-19:117, pp. 19-20 ⸺ 19-31.) They also include “fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.” (Fam. Code, § 2210, subd. (d).)

Jose’s declaration in support of an annulment is rambling. However, we discern three asserted grounds for an annulment.

First, he alleged that Monique was not a virgin when they married. However, he also went on to allege that this became apparent on the wedding night. Thus, even if this was fraud, it was not grounds for an annulment more than 50 years later.

Second, he alleged that Monique was pregnant when they got married. “The fact of pregnancy existing at the time of the marriage, together with the concealment of that fact from the innocent spouse, amounts in law to the perpetration of a fraud. [Citations.]” (Hardesty v. Hardesty (1924) 193 Cal. 330, 332.) However, he did not allege that he never became aware of that fact during the marriage. Somewhat to the contrary, he alleged that she had an abortion about five months after the wedding.

Third, he alleged that Monique had committed adultery. That is not a ground for an annulment. “Matters occurring after marriage cannot be the basis of an annulment suit.” (Sutton v. Sutton (1936) 12 Cal.App.2d 355, 356.)

If Monique concealed her intention to keep an existing lover, even after marriage, that could be grounds for an annulment. (In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 758-759, disapproved on other grounds in Ceja v. Rudolph & Sletten, Inc., supra, 56 Cal.4th at pp. 1126, 1128, fn. 12.) However, Jose did not allege this. He alleged that she had had one particular lover since 1966, but he did not specify whether that relationship began before or after the 1966 marriage.

Because Jose did not show that he had grounds for an annulment, and because he sought to set aside the judgment solely so he could pursue an annulment, he cannot show prejudice from the trial court’s refusal to set aside the default.

III

DISPOSITION

The orders appealed from are affirmed. Because Monique has not appeared, no costs are awarded to either party. (See Cal. Rules of Ct., rule 8.278(a)(5).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.