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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2007-2008
Antoinette Walters Janda
Appeal from Baldwin Circuit Court
Jiri Janda appeals from a judgment of the Baldwin Circuit
Court annulling his marriage to Antoinette Walters Janda.
On February 14, 2007, Antoinette filed a petition for an
petition, Antoinette asserted that Jiri, a native of the Czech
Republic, had fraudulently induced her to marry him; that, at
the time of the marriage, Jiri had no intention of honoring
his marital obligations; and that Jiri had married her only so
that he could obtain a "green card," which would permit him to
remain in the United States.
Jiri answered the complaint,
denying those allegations; he counterclaimed for a divorce.
The Baldwin Circuit Court conducted a hearing on May 8,
2007, at which both parties appeared pro se and presented ore
At that hearing, Antoinette testified that
she and Jiri were married on June 5, 2005, after a courtship
of only a few months.
She also testified that she and Jiri
had "honeymooned" by camping in the Smokey Mountains; that,
throughout their honeymoon, they had had no sexual relations;
and that they had slept in separate tents the entire time.
She further testified that, when they returned to live in her
home in Baldwin County, Jiri would not share a bedroom with
Antoinette testified that throughout their marriage she
and Jiri had never had a sexual relationship of any kind.
expectations regarding a sexual relationship resulted from
eventually asked Jiri about the lack of a sexual relationship
between them, and, according to Antoinette, Jiri had reported
that he was unhappy with Antoinette's weight. Antoinette then
lost 65 pounds, but, she testified, Jiri still showed no
romantic interest in her. Antoinette testified that, after 20
months of marriage, she realized that Jiri had married her
never intending to engage in marital intercourse with her.
According to Jiri's testimony, he is a native of the
He came to the United States in October
Jiri claimed that he became a permanent resident of
the United States as a result of his marriage to Antoinette.
Jiri acknowledged that if his marriage to Antoinette was
It appears that Jiri was in the United States on a
temporary green card, valid for two years, before or at the
time of his marriage to Antoinette. Jiri testified that he
had visited the United States on two other occasions, once in
1996 and again in 1997. On those occasions, he had obtained
"B2" tourist visas; Jiri also testified that, at one point, he
had applied for a temporary work permit.
annulled, he would be deported back to the Czech Republic.
Jiri testified that if his marriage was terminated by divorce,
rather than by annulment, whether he could remain in the
United States was "between him and the immigration service."2
had proposed to Antoinette;
claimed that Antoinette had proposed to him in March 2005. He
agreed that they had married in June 2005 and that he and
Antoinette had purchased a grill and a television together
after they were married.
Jiri acknowledged that he had
voluntarily quit working at some of his jobs.
admitted that he was unhappy with Antoinette's weight, with
the difficulties Antoinette experienced with her 19-year-old
son, and with changes that had occurred in Antoinette's
personality and behavior following a hysterectomy.
testified that he had maintained his own bedroom because
We presume Jiri's reference to "immigration service"
refers to the Immigration and Naturalization Service ("the
INS"), formerly a separate agency within the United States
Department of Justice. After the 2002 reorganization required
by the Homeland Security Act of 2002, Pub. L. No. 107-296, §
451, 116 Stat. 2135, 2192 (Nov. 25, 2002), the INS is now
referred to as the "Bureau of Citizenship and Immigration
complained that Antoinette at times would mistakenly call him
by her son's name.
The trial court entered an order annulling the marriage
on May 8, 2007, specifically finding that the parties had not
consummated the marriage and had not acted as a married
marriage. Jiri appeals, asserting that the trial court should
have entered a judgment of divorce rather than an annulment.
In this appeal, we must determine whether the trial court
properly annulled the marriage of Jiri and Antoinette.
long-standing Alabama caselaw, a court may annul a marriage
because of fraudulent inducement going to "the essence of the
Williams v. Williams, 268 Ala. 223, 226,
105 So. 2d 676, 678 (1958); Hyslop v. Hyslop, 241 Ala. 223,
226, 2 So. 2d 443, 445 (1941); and Raia v. Raia, 214 Ala. 391,
392, 108 So. 11, 12 (1926).
The existence of fraud is a
question for the trier of fact –- in this case, the trial
court –- to determine.
See, e.g., Mall, Inc. v. Robbins, 412
So. 2d 1197 (Ala. 1982); State Farm Mut. Auto. Ins. Co. v.
Borden, 371 So. 28 (Ala. 1979); and Bracewell v. Bryan, 329
So. 2d 552 (Ala. Civ. App. 1976).
This court may not
predicate error on a finding of fact based on oral testimony
unless that finding is plainly and palpably wrong, without
Martinson, 694 So. 2d 1386, 1389 (Ala. Civ. 1997); and Howard
v. Pike, 290 Ala. 213, 216, 275 So. 2d 645, 647 (1973).
In Hyslop v. Hyslop, supra, the Alabama Supreme Court
addressed extensively the issue of annulment on the basis of
"'"The public policy of this state,
evidenced by the statutes, the decisions,
or the general consensus of opinion, does
not regard a fraudulent marriage ceremony
as sacred and irrevocable by judicial
action; it does not encourage the practice
of fraud in such cases by investing a
consequence of deceit, with all the force
and validity of an honest marriage. While
marriage is a contract attended with many
important and peculiar features in which
the state is interested, and while it is
one of the fundamental elements of social
welfare, its transcendent importance would
seem to demand that wily and designing
successfully perpetrate fraud and deceit as
inducements to the marriage relation,
rather than that such base attempts should
be regarded as of trivial importance and be
wholly disregarded by the courts. Unhappy
and unfortunate marriages ought not to be
Sch. Dom. Rel. § 24.
successful perpetration of fraud is not
deemed to be a subject for judicial
"Well considered cases, dealing with
facts quite similar to this case are Millar
v. Millar, 175 Cal. 797, 167 P. 394, L.R.A.
1918B, 415 Ann. Cas. 1918E, 184 [(1917)];
Anders v. Anders, 224 Mass. 438, 113 N.E.
203, L.R.A. 1916E, 1273 [(1916)].
also, 38 C.J. p. 1300.
"Few, if any, kinds of fraud or
trickery will warrant a nullity suit, after
the marital status is actually entered upon
by cohabitation and marital intercourse has
"But, following the lead of our case
of Raia v. Raia, [214 Ala. 391, 392, 108
So. 11, 12 (1926)], supported by sound
reason and authority, we are of opinion
that entering into the marriage covenant by
declaration of a purpose to fulfill the
marriage vows; that, if done with intent
not to perform, followed by immediate
disavowal and refusal to perform, the party
is guilty of fraud which goes to the
essence of the marriage relation; and no
public policy denies the wronged party
relief by a nullity suit."
Hyslop, 241 Ala. at 225-26, 2 So. 2d at 444-45 (quoting Gatto
v. Gatto, 79 N.H. 177, 184, 106 A. 493, 497 (1919)).
Williams, 286 Ala. at 225-26, 105 So. 2d at 678 (quoting
We note that in both Williams, supra, and Hyslop, supra,
the Alabama Supreme Court cited with approval the case of
Millar v. Millar, 175 Cal. 797, 167 P. 394 (1917).
Millar to be directly on point.
In that case, the California
court annulled the parties' marriage, after eight months of
cohabitation, because the wife had refused to engage in a
sexual relationship with her husband since the date of their
The California court concluded that,
despite the parties' cohabitation, the wife's secret intent to
refuse to matrimonial intercourse provided a proper basis for
The court stated:
"Marriage is defined by our Civil Code as 'a
personal relation arising out of a civil contract,
to which the consent of parties capable of making
that contract is necessary.' ... As we have seen,
our law provides that when such consent on the part
of either party is obtained by 'fraud,' the marriage
may be annulled at the suit of the other, unless the
fraud is waived by free cohabitation after
discovery; in other words, such marriage is voidable
at the instance of the injured party. ... [W]hile
the contract is simply that the parties forthwith
enter into the relation of marriage, 'the rights and
obligations of that status [relation] are fixed by
society in accordance with the principles of natural
law.' These principles of natural law are perfectly
understood, certainly in so far as the particular
concerned. The obligation of the relation in this
behalf is such ... as to be 'essential to the very
existence of the marriage relation,' a proposition
as to which there appears to be no dissent in the
authorities. ... It may readily be conceded that a
court should not annul a marriage on the ground of
fraud except in extreme cases, where the particular
fraud goes to the very essence of the marriage
relation, and especially is this true where the
marriage has been fully consummated and the parties
have actually assumed all the mutual rights and
duties of the
In such a case
considerations of public policy intervene, and the
courts are loath to annul a marriage. ... But no
consideration of public policy precluding relief
exists under such circumstances as are established
by the findings in this case, and the authorities
generally recognize that in such cases the marriage
should be annulled for fraud. ...
"That the law provides for the dissolution of
the relation of marriage by divorce for specific
violations after marriage by one party of duties
particular obligation here involved, is altogether
immaterial. Such subsequent violations in no way go
to the original validity of the marriage.
alleged fraud in this case is not based upon any
mere violation of any duty of the marriage relation,
but upon a fraudulent misrepresentation made by
plaintiff at the time of the marriage, by which the
consent of Millar to enter into the marriage was
obtained, a matter, as we have seen, which goes to
the original validity of the marriage, and renders
it, at the suit of the injured party, void ab
175 Cal. at 802-05, 167 P. at 396-97.
Despite the age of these cited cases, we find no reason,
and none has been urged in this case, to depart from their
relationship, and the impact of a fraudulent intent, held at
the time of the marriage, upon that relationship.
with Millar that a fraud perpetrated at the time of the
marriage and going to the essence of the marital relationship
renders the marriage voidable by the injured party.
Williams, supra, and Hyslop, supra (both citing Millar with
Also, as recognized in Millar, supra, we agree
marriage vows and that an unstated intent, held at the time of
the marriage ceremony, to utterly refuse to engage in a sexual
relationship with the other party is a fraud that alters the
very essence of the marriage.3
167 P. at 398-99.
See Millar, 175 Cal. at 802,
Finally, the continued viability of the
By this language, we simply recognize that a sexual
relationship of some degree is assumed and implicit in the
relationship between a husband and a wife, unless the
circumstances or an express agreement between the parties
principles stated above is evidenced by their application in
more recent cases from other jurisdictions.4
In this case, the trial court heard testimony indicating
that, immediately after the marriage ceremony, Jiri refused to
share a bed with Antoinette and refused to engage in sexual
remained in the marriage because she originally believed
Jiri's reluctance to engage in marital intercourse with her
See, e.g., In re the Marriage of Meagher, 131 Cal. App.
4th 1, 7, 31 Cal. Rptr. 3d 663, 667 (2005) (recognizing that
annulments on the basis of fraud are generally granted only in
cases in which the fraud related in some way to the sexual or
procreative aspects of marriage); In re Marriage of Liu, 197
Cal. App. 3d 143, 155-56, 242 Cal. Rptr. 649, 656-57 (1987)
(annulling marriage because wife had fraudulently induced
husband into marriage so that the wife could obtain a "green
card"); Stojcevska v. Anic (No. 210144, Jan. 11, 2000) (Mich.
Ct. App. 2000) (not reported in Mich. App. or N.W.2d)
(annulling marriage, upon wife's request, because evidence
indicated that wife's parents had arranged her marriage to her
cousin so that he could obtain a visa to United States);
V.J.S. v. M.J.B., 249 N.J. Super. 318, 320, 592 A.2d 328, 329
(Chan. Div. 1991) ("Where the marriage has been consummated,
the fraud of defendant will entitle plaintiff to an annulment
only when the fraud is of an extreme nature, going to one of
the essentials of marriage."); Bishop v. Bishop, 62 Misc. 2d
436, 308 N.Y.S.2d 998 (N.Y. Sup. Ct. 1970) (denying husband's
petition for annulment based on fraudulent inducement; court
found no fraud in wife's attempt to obtain a divorce and in
her refusal to consummate the marital relationship because
husband himself testified that he and wife had agreed they
would marry and then immediately divorce; such an agreement
did not contemplate marital intercourse).
subsequently told Antoinette that he would not engage in
marital intercourse with her because of her weight.
after Antoinette lost 65 pounds, Jiri persisted in his refusal
testified that, after some 20 months of marriage, she realized
that Jiri had married her never intending to engage in marital
intercourse with her.
Upon that realization, she petitioned
the court for an annulment.
As recognized in Millar, supra,
these circumstances gave rise to a marriage that was voidable
By filing her petition, Antoinette sought to
void her marriage to Jiri.
We acknowledge that, because of the length of time the
parties cohabitated together, this is a close case and could
have been resolved either way.
However, the trial court
resolved the evidence in favor of an annulment.
substantial evidence to support the trial court's judgment, we
will not disturb that judgment.
Parks v. Martinson, 694
So. 2d at 1389 (recognizing that this court will not predicate
error on a trial court's findings of fact, based on ore tenus
evidence, unless those findings are palpably wrong, without
supporting evidence, or manifestly unjust); and Howard v.
Pike, 290 Ala. at 216, 275 So. 2d at 647 (accord).
therefore, affirm the trial court's judgment.
Thompson, P.J., and Pittman, Bryan, and Thomas, JJ.,