*1 Dist., No. 62259. Second Div. One. Feb. 1982.] [Civ.
In re the ABRAHAM Marriage of LEORA and SASSON. SASSON, ABRAHAM v. Appellant, SASSON, Respondent.
LEORA
Counsel Appellant. Anne M. Beiner for and
Charles G. Ewald Respondent. No appearance
Opinion
SPENCER, P. J.
Introduction re- an order his denying Sasson from appeals Petitioner Abraham support. for termination of spousal quest of Facts
Statement and the marriage petitioner judgment dissolving An interlocutory 22, 1977. The judg- on August Leora Sasson was entered respondent thereto pursuant and agreement, marital settlement ment approved in the nonmodifi- to respondent spousal petitioner pay ordered commencing April $350 six for a period years sum of month per able $250 1977; thereafter, per sum of month in the nonmodifiable and be unequivo- deemed to was years. Spousal support for a of two period nonmodifiable, the occurrence upon but was to terminate cally remarriage; Respondent’s “Respondent’s events: first of the following death, . .. death; or March Petitioner’s the alle- decision, to be true the trial court assumed For purposes brief, has been Respondent trial to wit: in petitioner’s contained gations (Shahar) Shalom Shahar since approximately Novem- 1977; 7, 1978, son, ber on November respondent gave signing birth (who the birth certificate as “Lee Shahar” and Shahar she had naming father; represented husband) to be her respondent as the consistently “Shahar”; uses the name and Shahar respondent joint share bank ac- count into which has respondent checks deposited spousal support Shahar”; endorsed “Leora has respondent represented family friends and in her community that she married to Shahar.
Respondent testified that at any she has not remarried time since her she has petitioner; for a applied marriage license with *4 any person other than and she has not petitioner; in participated form of ceremony relating marriage any person other than petitioner.
Contentions I Petitioner contends that the trial court erred in defining remarriage for the purposes spousal of support termination in terms of de or jure putative marriage only.
II Petitioner further asserts that the trial court erroneously prejudi- cially excluded reputation evidence of remarriage.
III petitioner Finally, avers the trial court’s that Civil Code ruling section 4801.51 is to the inapplicable spousal issue of termina- support tion constitutes prejudicial error. “(a) provides pertinent part: Except 1Civil Code section 4801.5 as otherwise parties affecting writing, be presumption, there shall a rebuttable proof, party the burden of supported of decreased need for if the ” person with a of sex .... Holding “(b) oneself out to be husband or wife of the with whom one is co- habiting necessary is not is used in this section. constitute cohabitation as term
Discussion I contention that the trial court petitioner’s There is no merit to for the termina defining purpose erred in remarriage thrust de The putative only. logical tion terms of a or jure marriage need not agreement is that a marital settlement position petitioner’s to the statutory in a manner analogous define the term “remarriage” hence, which falls outside Califor relationship marriage; definition within the term as but comes marriage nia’s definition statutory be a re should jurisdiction defined in dictionaries or other .considered Unfortu agreement. the settlement meaning within the the nature of the institution nately, petitioner’s syllogism ignores marriage. . . . solemn and a nature binding is a contract “of so civil
Marriage will marriage, ... not constitute consent of the alone parties ...; which the consent of but one to relationship marriage create the *5 413, (Mott (1890) Mott 82 Cal. 416 v. required.” the state also [22 to cre- required the of the state is 1140, P. Inasmuch as consent 1142].) alone may follows that state it relationship marriage, ate define the relationship. consent, the (1) requiring a contract defines as: marriage
California Code, (Civ. 4101); (2) a license, or and solemnization issuance of a § 4101, Code, (Civ. and solemnization consent contract requiring §§ in another jurisdiction into and valid 4213); (3) a entered contract or certain addition, putative (Civ. Code, 4104). recognizes California In § in fact evidence is, which marriages valid facially that relationships; a circumscribed be attacked may capacity or failure of consent the absence of validity which retain but parties, interested group provisions 4425.) foregoing as the (Civ. Code, Inasmuch challenge. § define as well as to marriage, with respect policy this state’s establish contra- definition would broaden the attempt relationship, any in limiting court was correct the trial Accordingly, public policy. vene relationships.2 putative de or remarriage jure the definition relationship proved alleged nor neither petitioner that 2We the record note for either petitioner did one. Nor a consensual other than respondent and Shahar between jurisdiction which in a relationship was entered into consensual allege prove or marriage by consent alone. validates II There is no merit to greater petitioner’s assertion that the trial court erroneously excluded evidence of prejudicially reputation remar Petitioner riage. relies on Evidence Code section 1314 to establish the relevance of the excluded evidence. While Evidence Code section 1314 does provide in a reputation con community “[e]vidence date fact ... ... cerning is not made inadmissible rule,” it does not hearsay necessarily follow such evidence is relevant.
Evidence Code section 1314 had its in former Code of Civil origin Procedure section subdivision 303 which created a presumption that “a man and woman themselves as deporting husband and wife have turn, entered into a lawful contract of In marriage.” the presumption 1872,4 originated when this state recognized validity of marriage on based consent (Civ. and the assumption Code, marital duties. 1872.)5 enacted Stats. When Civil Code section 55 was amended § in 18956 to require solemnization of the courts marriages, began view reputation evidence with greater suspicion. As noted in Hite v. Hite (1899) “Cohabitation, 124 Cal. P. and holding [57 227]: out to the world married, that the persons so are and general reputation, admitted, though all do not of themselves constitute mar- Estate Elliott riage.” 165 Cal. P. [132 439] followed, that evidence of holding cohabitation and undivided communi- ty would repute prove marriage the absence of evidence of solemnization.
It is clear that evidence of alone, community repute, standing must be accorded little where the significance solemnization marriage of is required; to do otherwise would be to render the necessity solemni- zation practical nullity. Petitioner neither nor proffered elicited from respondent solemnization, of but relied evidence on evi- entirely of dence cohabitation and In view of community repute. the scant relevance circumstances, of the excluded evidence under the we perceive no error in the trial court’s actions. 1965, 299, 110, chapter
3Repealed page Statutes section 1363.
4Added 1872. Statutes 3, chapter page
5Repealed Statutes section 3313. 1895, page 6Statutes 121.
III section that Civil Code ruling the trial court’s Petitioner avers consti- termination the issue of inapplicable 4801.5 is that, is argument gist petitioner’s error. The tutes prejudicial support provisions, Leg- of the the nonmodifiability notwithstanding to be the respondent as that of intended conduct such islature We support. termination of remarriage, thereby equivalent justifying disagree. 1974,7 section 4801.5 mandated Civil Code
As enacted originally party the supported upon proof of spousal support revocation more, of the sex been, opposite with a living person had for 30 days of the with person as the spouse or herself out himself holding form, 4801.5 replaced its section original In whom he or she was living. 8(c) with subdivision Civil Code section terms of discretionary intent “effect a legislative language, thereby evincing mandatory foregoing ones spouses and remarrying similar treatment between (In re Marriage Ludwig of the contract.” formalities 234].) Cal.Rptr. Cal.App.3d [130 amended, it cre- However, As 4801.5 was amended 1976.9 section if the need for support decreased ates a rebuttable presumption sex, except of the supported party writing; holding have otherwise parties to the extent to the defi- is not necessary cohabitor spouse oneself out be no provision 4801.5 makes presently of cohabitation. Section nition does hold party where the supported the revocation of spousal (c) of section subdivision spouse. herself out as the Finally, himself or modifica- preclude in this section shall later 4801.5 provides: “Nothing circumstances.” change support upon proof tion of mandatory provi revocation repeal Beyond question, awith rebuttable presumption 4801.5 and replacement sions of section *7 1338, 1, 1974, page 2911. chapter section 7Statutes 1608, 1969, 4801, chapter (c); by Statutes subdivision added 8Civil Code section writing, 3334; court by parties the in the “Except as otherwise page provided: judgment granting any decree or may, modify or revoke upon petition party, of either living is with another man proof the wife any party upon, the other that allowance to ” wife, although man .... not married to such holding and out as his herself 1675, 1971, (c) chapter was deleted Statutes foregoing version of subdivision The 3, page 3600. section 1, 1976, 380, page 1028. chapter 9Statutes section
147 of reduced need manifests a intent that those whom legislative to sec tion no be applied 4801.5 should a formerly longer subjected to that consequence as harsh as Civil Code sec imposed remarriage by 4801, (b). Instead, tion subdivision the of latter version section 4801.5 “legislative constitutes a declaration of state that cohabitation policy sex with or not supported spouse [whether with a of coupled representation is the supported party spouse is and to not in of itself sufficient revoke or reduce cohabitor] (In 629, spousal Marriage (1978) re 80 support.” Cal.App.3d Leib of 763]; Hence, 635 italics Cal.Rptr. original.) whatever may have [145 4801.5, been the upon case enactment of section original Legis since lature -has been at avoid pains cohabitation of equating with we not degree substitute our of remarriage; may judgment that Legislature contravention of public declared policy.
Further, we
cannot
agree
petitioner
requires
equity
different
When the parties entered into the marital settlement
result.
agreement, section 4801.5
provided
beneficial relief
ready
from the
of
burden
in the event
spousal support
entered a
respondent
relationship
of cohabitation which
her with a substantive
provided
means
support.
In the face of that remedy, and after expressly
for the conse
providing
quences upon
remarriage,
parties agreed
spousal support was
(Cf.
not to be modifiable
In
upon any
re
ground.
Marriage
Harris
(1976)
65 Cal.App.3d
151
Cal.Rptr. 891].)
[134
Moreover, respondent’s
not,
asserts,
conduct
is
as petitioner
analo
gous
that condemned in
re
(1977)
In Marriage
Baragry
Cal.App.3d 444
Cal.Rptr.
eschewing the
By
formality
[140
779].
marriage,
has
respondent
deprived herself
the beneficent protection
which the
upon
state bestows
a wife should her
die or
partner
abandon
what little
relationship;
security
have
respondent may
must derive
(See
(1976)
from another
source.
Marvin v. Marvin
18 Cal.3d
Cal.Rptr.
The order is affirmed. *8 J.,
HANSON In thecase at (Thaxton), Concurring. appellant bench (hereinafter Husband) Abraham Sasson and Leora Sasson respondent (hereinafter Wife) executed a marital settlement dated agreement May 4, 1977, was into incorporated which the parties’ interlocutory judg ment entered 1977. August in pertinent part provides:
The marital settlement agreement “[T]hat as to and for a non- [appellant] pay respondent spousal support shall $350.00 (6) for of six modifiable sum of month per period years, a thereafter an additional two a sum years nonmodifiable $250.00 shall be one-half the 1st and per month. Said sums on payable month, 15th day commencing April continuing each first to of the thereafter until the occur events: following Respondent’s death; 1, 1985, death or March [appellant’s] remarriage; Respondent’s which shall forever cease and terminate. spousal support at time said competent jurisdiction court have Under no circumstances shall duration; modify jurisdiction said to to as amount to intent this Order that being [appellant’s] obligation it express a non- years shall be on period eight (8) pay spousal support as herein.” unless otherwise designated provided basis modifiable (Italics added.) from superior spousal relief court paying
Husband before sought Code 4801.51 on the ground Wife under Civil section support Husband’s sex. cohabiting that Wife was with heard on 1980. April cause “Re: Modification” was order show was with an- assertion that she living did not contest Husband’s Wife 1977; son man, Shahar, that she had a since November of other Shalom as “Lee Shahar; shows the child’s name Mr. that the birth certificate father; Wife medical signed Shahar as Shahar” and Shalom “husband”; Shahar was her that Shalom stating and other documents to herself name and referred used the “Shahar” consistently that Wife Shahar; Shahar a joint Wife and Shalom shared as Mrs. Leora spousal Wife had endorsed “Shahar” and under the name bank account them into the account joint and deposited from Husband checks support to her Shahar; represented Wife consistently and that Shalom was married to Shalom that she community to the friends and family, Shahar. par Except as otherwise “(a) provides: Code 4801.5 1Civil section affecting proof, the burden presumption, writing, shall be rebuttable ties there person of party with a supported if decreased need for
149
rebuttal
Wife at the order to show
testimony
by
The only
presented
14, 1980,
on
that
hearing
April
cause
consisted Wife’s
she
testimony
not
had
for a
license and never entered into a formal
applied
marriage
marriage
since her
The trial court de
ceremony
marriage to Husband.
nied
and
request
Husband’s
for modification
Husband
from
appeals
that ruling.
The
case
In re Marriage
Leib
Cal.Rptr. 763], factually is and procedurally distinguishable to a helpful resolution of the at bench. case In Leib the spousal support Here, was determined the by court. there is a settlement agreement which included a provision which was spousal support incorporated in the interlocutory judgment addition, of dissolution. In in Leib evi- dence was taken in the trial court directed at the rebutting presumption of wife’s decreased need by reason of the cohabitation. In the case at bench there was no evidence taken pertaining to such need. The re- only buttal evidence was Wife’s testimony that she had never remarried.3 conclude,
I as does the lead that the trial opinion, court proper denied ly Here, request Husband’s for modification. the parties agreed expressly in their marital settlement agreement incorporated into the interlocutory judgment was spousal support “nonmodifia ble” was to continue for the periods and in the amounts circumstances, Upon finding changed modify may sex. the court such provided (a) (b) Holding payment of as for in subdivision of Section 4801. cohabiting be is oneself out to the husband or wife of with whom one is not section, necessary (c) Nothing to constitute cohabitation as the term is used in this change preclude support upon proof of this section shall later modification of of cir- (Italics added.) cumstances.” denying request 2The trial court in Husband’s for modification stated: “Counsel, problem. we’re aspects all concerned about this There are income tax to be deliberately together considered. Persons who divorce and live to avoid the added tax incur, being by Congress currently. par- will Your which addressed legislature. problem by case ticular I involved this is one that should be addressed envision, boyfriend example, happen Respondent’s would if dies. what Does Marvin, spouse? claim under she I she she’d have to claim under Marvin and not as a ever does claim as a And think at the moment spouse. pros So there’s and cons which- way. remedy, unfortunately, judicial legislative.” At moment the is not but Leib, supra, Marriage Cal.App.3d 3The case In re involved motion brought 4801.5, ex-husband under Civil Code section as amended for his why judgment requiring portion pay ex-wife to show cause of the dissolution him to monthly spousal support should not be revoked since the ex-wife was man of another ted reversed with directions to the trial court tion substantial annual income. The trial court held that the evidence rebut presumption through Appeal of decreased need their cohabitation. The Court of finding statutory presump enter a $10 per was not overcome the evidence and reduce month. *10 others, occurrence, amongst the upon terminate only and was to upon by authorized specifically is an agreement “remarriage.” Wife’s “[S]uch is therefore (b). The section subdivision section modifiable[4] that would bring facts exist or not whether (1976) Cal.App.3d 65 (In Harris Marriage re into play.” 4801.5 891].) Cal.Rptr. 151-152 [134 I tend to opinion, in the lead However, views expressed the unlike as one “pre Wife’s status characterization with Husband’s agree worlds, two the best of savoring paradise, a captain’s sumably enjoying (1977) (In Baragry re Marriage of both.” the benefits and capturing 5 This must be so when a Cal.Rptr. 779].) 449 Cal.App.3d [140 in order to insure rather than remarry Wife can elect to “Marvinize” in meretricious re in while a engaging will coming that “alimony” keep wedlock while setting children out of bearing and even lationship present paramour. suit a against “palimony” a future possible stage Husband’s Moreover, support payments portion in all probability the child fathered an- by paramour her new support to Wife togo in a account joint are deposited the support moneys other man since However, as such a warped one-sided and as unjust, with Mr. Shahar. be, is bound unfortunately by Husband state of affairs may appear she since Wife’s ‘that testimony agreement his own marital settlement is uncontradicted. has never remarried v. Marvin case of Marvin Court’s Supreme
In view of the state
815, 557 P.2d
and the
106],
Leg-
Cal.Rptr.
I concur the judgment.
Lillie, J., concurred.