Cobo v. Sierralta

• Decision Date: 27 May 2009
• Docket Number: No. 3D08-616.,3D08-616.
• Citation: 13 So.3d 493
• Parties: Esther Ruth COBO, Appellant, v. Francisco SIERRALTA, Appellee.
• Court: Florida District Court of Appeals

13 So.3d 493

Esther Ruth COBO, Appellant, v. Francisco SIERRALTA, Appellee.

No. 3D08-616.

District Court of Appeal of Florida, Third District.

May 27, 2009.

Rehearing and Rehearing En Banc Denied July 10, 2009.

MaryJo A. Mosca, for appellant.

Steven N. Abramowitz, for appellee.

Before WELLS, ROTHENBERG and LAGOA, JJ.

WELLS, Judge.

Esther Cobo appeals from a final judgment annulling her marriage to Francisco Sierralta, awarding custody of their almost eight-year-old daughter to Sierralta, and denying enforcement of an earlier, but unsatisfied, temporary attorney's fee award. We reverse the judgment and remand for immediate enforcement of the earlier entered temporary attorney's fee award; for an award of additional temporary attorney's fees; for an expedited hearing to set a visitation schedule for Cobo and the minor child; for a dissolution of marriage; and for application of Chapter 61 to all custody, visitation, support and property issues between these parties.

Facts

The parties are Venezuelan citizens, who met in Venezuela in the late 1990's. Their minor child was born out of wedlock in Venezuela on May 4, 2000. In March 2002, Sierralta obtained resident alien status and the following month Cobo and the minor child entered the United States on tourist visas. The parties were married in Florida in August 2002.

Eighteen months after the marriage, Sierralta petitioned for dissolution seeking enforcement of a Marital Settlement Agreement between himself and Cobo.¹ As part of that petition, Sierralta alleged under oath that shared parental responsibility, with Cobo as primary residential parent, was in the best interest of the minor child.

Shortly after this petition was filed, the parties rescinded their Marital Settlement Agreement. Almost predictably, the parties' relationship deteriorated, culminating in domestic violence claims by Cobo and a temporary custody request by Sierralta. When Cobo threatened during an argument to leave the country with the child and claimed that she had never been divorced from her first husband, Sierralta amended his petition to secure an annulment and custody of the child.

Over the next four years, the parties litigated the validity of their marriage as well as who should have custody of their child. For this entire period, Cobo litigated this case without an award of temporary attorney's fees. It was not until January 25, 2007, three years after this action commenced, that temporary attorney's fees were finally awarded to Cobo, and then only in an amount that would permit her to litigate custody and visitation issues; no amount was awarded to permit her to contest Sierralta's annulment claim:

Most of the prior litigation in this case has resulted from issues regarding the custody and visitation of the minor child. The court finds that 15% of this case has and will be spent litigating the issue of annulment.

Wife's attorney's prospective attorney's fees and costs budget shall be reduced by 15% or the amount of litigation time to be spent litigating the annulment issue.

Wife's attorney shall be awarded $15,000 in prospective attorney's fees and $2,000 in costs for the purpose of litigating the custody and visitation issues in this case. Attorney's fees and costs are not awarded for the litigation of the issues of annulment or equitable distribution.

Despite this order and Cobo's repeated attempts to enforce it, no sums were paid to Cobo to secure her representation.²

On February 11, 2008, a final judgment denying Cobo's petition for dissolution of marriage and granting Sierralta's petition for an annulment was issued. The judgment designated Sierralta as the primary residential parent, nullified the previously entered—but never paid—temporary fee award, and denied any additional fee award to Cobo because of her opposition to Sierralta's demand for an annulment:

ATTORNEY'S FEES: The mother's motion for award of attorney's fees is DENIED. Any temporary orders granting to the mother an award of attorney's fees are hereby vacated. The Court finds that mother's opposition to an annulment when the mother had previously stipulated to the fact that there was no legal intact marriage amounts to meritless litigation as defined by Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

We reverse this final judgment for two reasons: first, we conclude that Sierralta failed to present sufficient evidence to overcome the presumption of a valid marriage between these parties, and second because we conclude that the failure to award temporary attorney's fees to litigate all issues in this case deprived Cobo of any meaningful opportunity to defend.

The Annulment

This action commenced when Sierralta filed a petition for dissolution of marriage in which he alleged under oath that he and Cobo were married. Although Sierralta subsequently claimed that his marriage to Cobo was void because Cobo was still married to her first husband when he and Cobo were married, Sierralta has never denied that a marriage ceremony between himself and Cobo—which he believed to be valid—took place. On these facts, the court below was required to presume that Sierralta and Cobo were legally married until such time as Sierralta proved otherwise. See Stewart v. Hampton, 506 So.2d 70, 71 (Fla. 5th DCA 1987) (concluding that "[o]nce a marriage is shown to have been ceremonially entered into it is presumed to be legal and valid" and that that the party attacking the legality of such a marriage bears the burden of rebutting this presumption); Grace v. Grace, 162 So.2d 314, 317 (Fla. 1st DCA 1964) ("It is an elementary principle of domestic relations law that a marriage, once shown to have been ceremonially entered into ..., is presumed to be legal and valid" and that "the burden of proving the continuance of the previous marriage and the invalidity of the subsequent marriage is on the party attacking the validity of the latter"); see Teel v. Nolen Brown Motors, Inc., 93 So.2d 874, 876 (Fla.1957) (recognizing that "[a] presumption exists in favor of the validity of the last marriage," which is "one of the strongest presumptions known to the law," such that "[t]he burden of rebutting it rests upon the party attacking the legality of the last marriage"); In re Estate of Beacher, 177 So.2d 838, 839-40 (Fla. 3d DCA 1965) (recognizing that once prima facie evidence of a marriage is presented, the party asserting the illegality of that marriage bears the burden of proving that assertion). Sierralta failed to sustain this burden.

According to Sierralta, no valid marriage existed between the parties because Cobo could produce no documentation to prove that she was divorced from her first husband, and because Cobo claimed during an argument and in her deposition that she was still married to her first husband when she married Sierralta:

VOID MARRIAGE: The husband has now learned, through the admission of the wife herself, that her previous marriage to OSCAR FRANCISCO GAMEZ DELANEY was never terminated by a divorce in Venezuela. In the past, the husband has repeatedly requested that the wife furnish to him a certified or official document showing that the wife was divorced from her previous husband. The wife has never produced such a document. A request for production was filed by the husband in this cause on April 5, 2004, seeking such documentation, and no response was made thereto. However, the wife continued to advise the husband that she did indeed get a divorce in Venezuela from the previous husband and that she would find a way to get a hold of the documents and furnish them to the husband herein. Towards the end of April, 2005, when the parties were engaged in an argument about timesharing between the husband and the minor child of the parties, the wife threatened that she would leave the country with the minor child because she was illegally in the United States anyway and, further, she told the husband that she is still married to the previous husband at the present time and never procured a divorce from said previous husband. This makes the marriage between the parties void.

The fact that Cobo could produce no documentation during the early stages of these proceedings proving that her first marriage in Venezuela had been terminated (again in Venezuela) does not overcome the strong presumption that her marriage to Sierralta is valid. This is so because it was not her burden to prove the validity of the current marriage; rather, it was Sierralta's burden to prove the invalidity of the current marriage. In any event, by the time of the final hearing, Cobo had procured evidence that her first marriage had been legally terminated. More specifically, although Cobo was unable to secure copies of documents confirming that her first marriage had been terminated, she was able to present a certified and sworn written declaration from her first husband, Oscar Delaney, in which he attested that: (1) he and Cobo were married in Venezuela in 1988; (2) after only ninety-two days, he had the marriage annulled in the "Seventh Tribunal of First Instance in Civil of the Judicial District of the State Merida" in Merida, Venezuela; and (3) because of a flood all of the documents confirming the annulment were destroyed. Cobo also presented documentary evidence that Delaney had remarried in Venezuela in 1994, a marriage which expert testimony confirmed would not have been authorized under Venezuelan law absent official confirmation by a Venezuelan notary that no legal impediment to Delaney's remarriage existed. Accord Guelman v. Guelman, 453 So.2d 1159 (Fla. 3d DCA 1984) ("It is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage."). Because Sierralta did not sufficiently rebut this evidence at the final hearing, he did not overcome the strong presumption that the parties' marriage is valid.

The...