Filed 1/9/14 Marriage of Banhagel and Sheveleva CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re Marriage of MATTHEW K. BANHAGEL and ELENA SHEVELEVA.

D061873

MATTHEW K. BANHAGEL,

Respondent, (Super. Ct. No. DN163215)

v.

ELENA SHEVELEVA,

Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Patti C. Ratekin, Commissioner. Affirmed.

Stephen Temko and Dennis Temko for Appellant.

Law Office of James D. Scott, James D. Scott and Andrew J. Botros for

Respondent. Elena Sheveleva appeals from a judgment annulling her marriage to Matthew

Banhagel. She asserts the judgment is reversible per se because she was denied her

constitutional right to a fair trial. We reject her assertions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Elena does not challenge the sufficiency of the evidence supporting the family

court's decision and, while the parties disagree on the facts surrounding the breakdown of

their marriage, they are well aware of the facts of this dispute. Accordingly, we merely

summarize some of the facts to provide background for our later discussions.

Matthew met Elena on an international dating Web site in May 2008. Elena was

from Russia. She has an adult son and a nine-year-old daughter with her ex-husband.

Elena spoke only a bit of English and the couple communicated by e-mail using a

translation program. In August 2008, Matthew visited Russia to meet Elena in person.

The couple had sex for the first time. In June 2009, the couple agreed to marry.

A few weeks before the wedding, Matthew experienced gaps in communication

with Elena where she did not e-mail him or answer the telephone. During this time,

Matthew noticed that Elena remained active with other users on the dating Web site.

When Matthew questioned Elena's sincerity, Elena convinced him that she was marrying

him for "nothing other than love and devotion." The couple married at the end of June

2009 in Russia, but the couple did not have sex on their wedding night. In early June

2010, Elena arrived in the United States. After Elena came to America, Matthew claimed

they had sex twice and that Elena displayed no affection and became very frivolous with

2 money. In contrast, Elena claimed that she wanted to have sex with Matthew, but that

cats in the bed created problems with their sex life.

In July 2010, the couple's communication broke down and Matthew began to

suspect that he might be a victim of fraud. In November 2010, Matthew filed for a

nullity of marriage, alternatively for dissolution of marriage. Before trial, Elena

submitted nine declarations. One declaration was from her daughter's teacher, the other

declarations were from people Elena knew in Russia that were translated into English.

When trial commenced, the family court stated it would not consider any declarations and

would only consider the testimony of the witnesses at trial. Matthew and Elena testified

at trial. The only other witness was Oksana Voazzo, a Russian woman who also met her

husband on a dating Web site. Oksana became friends with Elena and claimed that they

"became pretty close."

The family court ordered the marriage annulled after concluding that Elena

committed fraud by entering into the marriage with no intention of performing her

marital duties. In its written intended decision, the court referenced the witness

declarations tendered by Elena. When Elena's counsel objected to these references, the

court replied that it did not recall its prior ruling and considered the declarations for

"credibility and . . . impeachment" and not for the truth of the matter asserted.

The court concluded that Elena was not credible, stating it would have come to

this conclusion based on the testimony of the three trial witnesses even if the declarations

had been excluded. The court then ruled that its statements would constitute a statement

of decision.

3 At a later hearing, the family court indicated that it had reviewed the earlier

transcripts and realized it previously stated that the declarations would not be considered.

The court stated: "So the only way that I feel is appropriate to handle it is to allow them

to reopen as to the issue what was brought up, what I considered out of the declarations."

Elena's counsel then asked: "So we're talking about [Elena's] testimony and whatever

evidence is, I guess, corresponding to that?" The court responded that it did not have a

copy of its decision, but wanted everyone to feel that they have been treated fairly.

The continued trial was ultimately set for hearing. At that time, Elena invoked the

Fifth Amendment privilege against self-incrimination and requested a continuance until

immigration proceedings against her were concluded. Although the court believed that

the individuals who had written the declarations would testify, Elena had no witnesses to

present. The court denied the request for a continuance based on the concern that the

immigration case could take years to finish. The family court explained that after it

discovered the mistake regarding the declarations:

"I didn't think it was fair to her that she didn't have an opportunity to present evidence to overcome using those declarations, even though I told counsel that without them I could have come to the same decision. There were enough contradictions without using those declarations in her testimony alone as compared to—just within her testimony she was like 180 degrees difference on a lot of different really important issues. . . . But I still wanted to give her the benefit of having the opportunity to call witnesses if she thought that it could overcome something. We're here today for trial."

The court entered a judgment that incorporated its intended decision. Elena timely

appealed.

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DISCUSSION

In general, a trial court has discretion to grant or deny a continuance with the

burden resting on the complaining party to demonstrate from the record that an abuse has

occurred. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.) Nonetheless,

when a trial court's error amounts to structural error, reversal is required without regard to

the strength of the evidence or other circumstances. (In re Enrique G. (2006) 140

Cal.App.4th 676, 685.) Structural errors requiring automatic reversal include violating a

party's right to present testimony and evidence. (Marriage of Carlsson (2008) 163

Cal.App.4th 281, 290-291.)

Elena contends the family court committed reversible error when it failed to

continue the trial until the removal proceedings against her had concluded because she

was deprived of the right to present evidence after she properly invoked her Fifth

Amendment privilege against self-incrimination. We disagree.

The Fifth Amendment to the United States Constitution guarantees that a person

may not be compelled to testify or give evidence against herself. (Maness v. Meyers

(1975) 419 U.S. 449, 461.) A witness may properly invoke the Fifth Amendment

privilege if the witness "reasonably apprehends a risk of self-incrimination, . . . though no

criminal charges are pending against [the witness], . . . and even if the risk of prosecution

is remote." (Wehling v. Columbia Broadcasting System (5th Cir. 1979) 608 F.2d 1084,

1087, fn. 5.) "However, a party is not entitled to decide for himself or herself whether the

privilege against self-incrimination may be invoked. ' "Rather, this question is for the

court to decide after conducting 'a particularized inquiry, deciding, in connection with

5 each specific area that the questioning party seeks to explore, whether or not the privilege

is well founded.' " ' " (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305, italics

omitted.) The person claiming the privilege has the burden of showing that the proffered

evidence is incriminating. (Evid. Code, § 404.) If the objecting party carries his or her

burden, then the judge must sustain the claim of privilege unless it clearly appears that

the proffered evidence cannot possibly have a tendency to incriminate the person.

(People v. Seijas (2005) 36 Cal.4th 291, 304-305.)

On this record, we cannot conclude that the trial court's refusal to continue the trial

based on Elena's blanket invocation of the Fifth Amendment privilege amounted to

reversible error. The trial court considered the declarations solely for impeachment and

determining Elena's credibility. Accordingly, the purpose of reopening the evidence was

to allow examination of the witnesses that provided the declarations or redirect

examination of Elena to explain or rebut inferences based on the family court's

consideration of the declarations and thereby rehabilitate Elena's credibility. (See People

v. Cleveland (2004) 32 Cal.4th 704, 746.)

At the continued trial, Elena did not bring the declarants; rather, she sought to

testify to rebut evidence or inferences from the declarations. Elena, however, failed to

explain how any testimony she might offer to rebut the declarations tended to incriminate

her. Thus, it is impossible to determine whether her invocation of the Fifth Amendment

privilege was well founded. Assuming, without deciding, that Elena properly invoked

the Fifth Amendment privilege, we cannot conclude that the trial court's failure to

continue the trial amounted to a denial of due process because Elena was not denied the

6 right to present evidence. She could have presented the declarants or other witnesses at

the hearing.

Under the lesser abuse of discretion standard, "an abuse of discretion results in

reversible error only when the denial of a continuance results in the denial of a fair

hearing, or otherwise prejudices a party." (Freeman v. Sullivant (2011) 192 Cal.App.4th

523, 527.) Elena has not demonstrated prejudice as the family court stated it would have

come to the same conclusion based on the testimony of the three trial witnesses even if

the declarations had been excluded. Although not challenged by Elena, the evidence

presented at trial supported the family court's finding that Elena entered into the marriage

with no intention of performing her marital duties.

A marriage may be adjudicated a nullity if, at the time of the marriage, "[t]he

consent of either party was obtained by fraud." (Fam. Code, § 2210, subd. (d).) The

showing of fraud necessary to warrant nullification must be of a type that " 'goes to the

very essence of the marriage relation.' " (Marshall v. Marshall (1931) 212 Cal. 736,

739.) The secret determination to refuse to engage in sexual intercourse is sufficient to

support an annulment. (Millar v. Millar (1917) 175 Cal. 797, 800-801 [wife concealed

from husband at time of marriage that she did not intend to have sexual relations with

him]; In re Marriage of Liu (1987) 197 Cal.App.3d 143, 156 [wife married husband in

Taiwan to acquire a green card, and concealed intention not to engage in sexual

relations].)

7 Here, as noted by the family court, Elena and Matthew presented conflicting

evidence on this issue. However, the family court found the testimony of the remaining

witness, Oksana, to be "the most powerful." Oksana testified that when she and Elena

were alone, Elena would "often" talk about Matthew. Elena told Oksana that she did not

want to have sex with Matthew because "he was not adequate for her." Elena also told

Oskana a number of times that she married Matthew because it was "very dangerous to

remain in Russia." The family court found Oksana to be a credible witness who had no

motive to lie. Additionally, as to Elena's own testimony, the family court stated "[s]he

was all over the place on almost every issue. She couldn't keep a story straight."

In summary, we find no error in the family court's refusal to continue the trial.

DISPOSITION

The judgment is affirmed. Respondent is entitled to his costs on appeal.

MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

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