In Re Marriage of Johnston

Opinion

SONENSHINE, J.

Donald R. Johnston appeals a judgment annulling his marriage to Brenda Johnston.

I

After a 20-month marriage, Brenda sought to have her marriage to Donald annulled. (Civ. Code, § 4425, subd. (d).) Donald agreed the marriage should be terminated but requested a judgment of dissolution be entered.

At the trial, Brenda testified she was unaware of Donald’s severe drinking problem until after the marriage and she was upset to discover this and disappointed in his refusal to seek help. She knew before the nuptials that he was unemployed, but did not realize he would refuse to work thereafter. She stated their sex life after marriage was unsatisfactory and that he was dirty and unattractive. In short, he turned from a prince into a frog.

Donald testified to the contrary, but to no avail. The trial court believed Brenda. “There is a conflict in the testimony as to what happened in this

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marriage. But the court tends to believe [Brenda] has told the truth when she’s described the events of the marriage and what occurred before.”

The court found Brenda’s consent had been fraudulently obtained and annulled the marriage. Donald appeals.

II

Donald complains the evidence is insufficient to support a finding of fraud.

1

He is correct.

Civil Code section 4425, subdivision (d) delineates the grounds for a voidable marriage: “A marriage is voidable and may be adjudged a nullity if . . . : [f] . . . [ft] . . . [f] . . . [ft] (d) The consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.” There was no fraud.

Civil Code section 1710 defines deceit as “either: [ft] 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; [ft] 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; [ft] 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, [ft] 4. A promise, made without any intention of performing it.”