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C.A. Tells Parties That Despite Judgment Nullifying Marriage, They Are Still Wed
By a MetNews Staff Writer
A man and a woman who met online in June 2016 and were wed the following month, only to split up two days later, with the husband obtaining a default judgment of nullity in 2017, are still married, Div. One of the Fourth District Court of Appeal has declared.
Tuesday’s unpublished opinion reverses San Diego Superior Court Judge Frank L. Birchak’s order denying a motion by the wife, Tong Ren, pursuant to Code of Civil Procedure §473.5, for relief from the default and default judgment based on her lack of awareness of the pendency of the action brought by her husband, Chad Jones of El Cajon. Jones had sued, in the alternative, for a nullity or a dissolution.
The judgment of nullity was based on fraud by Ren in obtaining a marriage solely for immigration purposes. Birchak based his order denying relief from that judgment on Ren’s repeated refusals to provide her address to Jones in the course of their communications via text messages.
Service by Publication
Ren, who has lived in Orange County except for the two days she resided with her husband in San Diego County, was served by publication of the summons in a San Diego newspaper in June 2018. She moved for relief in October 2019, disavowing knowledge of that publication, and saying that she acted within two months of learning of the judgment.
Sec. 473.5(a) requires that a motion for relief “be filed within a reasonable time, but no later than two years after entry of default or 180 days after service of a written notice that the default or default judgment has been entered.”
Writing for the appeals court, Acting Presiding Justice Terry B. O’Rourke said the motion met the time requirements and that Birchak abused his discretion because Ren “did not have actual notice of the nullity or dissolution action” prior to entry of judgment and that the “lack of notice was not caused by her avoidance of service, and the trial court’s contrary finding is not supported by the evidence.”
O’Rouke’s Reasoning
He pointed out that Jones could have told his wife “by text message that the action was pending” in court “rather than concealing it” when she inquired as to their marital status, and that she “may have had valid reasons to keep her address confidential” because she was residing at a domestic violence shelter and allegedly had been a victim of abuse by Jones during their two days of living together. Declining to provide her residence address, O’Rourke said, did not amount to Ren ducking service of process, noting that she “could have accepted personal service in a public place, for example.”
The opinion directs that on remand, the default and default judgment be set aside and that Ren be permitted “to defend the action.”
Although the parties had litigated in the trial court and in the Court of Appeal under their actual names, O’Rourke opted to refer to them in his opinion, without explanation, as “C.J.” and “T.R.”
The case is Marriage of C.J. & T.R., D078273.
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