Dhuper v. Khosla (In re Marriage of Dhuper)

Decision Date29 March 2023
Docket NumberE077095
PartiesIn re the Marriage of ARTI DHUPER and ANUJ KHOSLA. v. ANUJ KHOSLA, Appellant. ARTI DHUPER, Respondent,
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No FAMSS1810053, Cheryl C. Kersey, Judge. Affirmed.

The Law Offices of Jonathan Reza, Jonathan Reza for Appellant.

Thompson Thompson Valladolid, Jeffrey S. Valladolid and Byron C. Thompson for Respondent.

OPINION

RAMIREZ, P. J.

Appellant Anuj Khosla (Anuj)[1] appeals from a judgment annulling his marriage to petitioner Arti Dhuper (Arti) on the ground of fraud (Fam. Code, § 2210, subd. (d)) as well as the fact that the marriage had not been consummated. The claim of fraud was based on the allegation that Anuj married Arti to expedite the process of obtaining his green card through her and that he represented he wanted to have children with Arti when he did not. After a trial, the court granted the annulment, concluding that Anuj married Arti so that he could apply for a green card through her, and that the marriage had not been consummated.

On appeal, Anuj argues the trial court (1) erred in admitting testimony and evidence from the parties' marriage counselor in violation of the patient-therapist privilege (2) improperly considered expert opinion from lay witnesses; he also argues (3) cumulative errors prejudiced his case; (4) there is insufficient evidence of fraudulent intent to support the judgment; and (5) Arti waived any claim for annulment by continuing to cohabit with Anuj. We affirm.

Background

For the most part, the evidence presented in the case can be described as "he said, she said," except that some of wife Arti's testimony was corroborated by other witnesses, and some of Anuj's testimony was contradicted or impeached.

In 2015, Arti lived in Rancho Cucamonga while Anuj lived in Houston, Texas. Arti's parents had posted her profile on an online dating site called "Shaadi,"[2] where South Asian people could meet because she was in her 30's and they wanted her to settle down and start a family. In September 2015, Arti's mother had either contacted or been contacted by Anuj through the website, and Arti's mother thought Arti should contact him. Arti and Anuj spoke by telephone a few times after that. Eventually, in October 2015, the couple met in person and had dinner when Arti had to fly to Houston for a business trip. At that time, Anuj was employed by Hewlett Packard (HP) and had an H-1B visa.

In November 2015, Anuj wanted to spend his birthday with Arti in California, and insisted he should meet her parents, although Arti was uncomfortable because she had just met him. Between their first meeting in Texas and Anuj's birthday, the couple had communicated daily by phone. According to Arti, during the visit, Anuj brought up the subject of marriage in the presence of her parents; he had not proposed to her before announcing his intentions to her parents. Anuj denied mentioning marriage during that visit but acknowledged that Arti's father had given his blessing to Anuj if Anuj wanted to move forward with the relationship.

After the November 2015 visit, the relationship between the two became more serious and Anuj put his Shaadi profile on "pause." Arti told Anuj she wanted to have children, and Anuj said he wanted children, too. There was more than one conversation on this topic, and, in fact, Anuj seemed in a rush to get married so they could start a family. According to Arti, they never had sex prior to marriage. According to Anuj, they did.

In December 2015, Arti and Anuj flew to New Jersey so Arti could meet Anuj's sister. During the visit, the subject of immigration came up when Anuj's sister asked Arti about her immigration status.[3] At that time, Arti had an EAD card, indicating that she was awaiting her green card. "EAD" refers to Employment Authorization Document, which is an interim benefit that one has while a green card application is pending.

Anuj began working on a fulltime basis for HP in 2006, following his graduation from college in Houston, Texas. He had an H-1B visa, based on his employment. If he stopped working for HP, any new employer would have to file a new H-1B petition. Anuj had originally made an application for a green card 2006 in Texas, but that application was denied in 2011. In 2012, HP reapplied on Anuj's behalf for a green card, and that application was approved.[4] In 2012, the wait to obtain a green card would take about eight-and-a-half to ten years.

In December 2015, Anuj sent Arti an email outlining the details of his green card application process. Anuj sent her the email to seek advice from Arti's immigration lawyer, but denied he was seeking Arti's assistance. Anuj asserted he sent it merely to find if it were possible to transfer his H-1B visa if one was to move from one place to another, and how much time it would take. Also in December 2015, Anuj emailed Arti asking about her preference in rings.

In February 2016, Anuj proposed to Arti. Anuj seemed to be in a rush to get married in order to start a family. Although the couple had discussed being married in a traditional Indian ceremony in August 2016 (so that Anuj's parents, who lived in India, could be present), in February 2016, Anuj suggested they marry first in a civil wedding, before the traditional Indian wedding, because Anuj's sister provided Anuj with the name of an immigration attorney who informed Anuj that being married would speed up the green card process.[5] The civil marriage ceremony took place in April 2016. Before the civil wedding, Arti introduced Anuj to her immigration attorney.

Arti never had sex with Anuj before the wedding. Arti never had sex with Anuj after the wedding, either; throughout the entire relationship, the couple never had sex. Anuj testified that the couple had intercourse before and during marriage, although intimate relations stopped when marital problems arose.

After the civil wedding ceremony, Anuj continued to live in Houston until 2018. Anuj said the couple had discussed in 2016 how they would maintain a long-distance relationship and denied promising to move to California. Anuj stated he had never promised to move to California. However, Arti testified Anuj promised to move to California, but began to make excuses for not moving, indicating problems transferring his job and his visa. Arti was concerned about his lack of ambition. In 2016, Arti and her brother, Aman Dhuper (Aman) actively started to help Anuj find a job in California. Aman became aware of marriage problems starting right after the civil wedding related to the long-distance relationship and Anuj's inability to find work to relocate to California.

In April 2016, Arti received her green card. After she received her green card, Arti offered to move to Houston, Texas, where she could continue to work for the same employer and the couple could live together. Anuj discouraged Arti from transferring to Texas. Anuj explained that because they each had good jobs, and they needed time to figure out how things "were going to move," while he was also looking for a job in California.

The traditional Indian wedding ceremony took place in August 2016. Anuj applied for his green card in early 2017. In February 2017, Anuj opened a joint account in the names of both spouses in Texas. No deposits or withdrawals were made to or from the account during the time it was active except for monthly services fees. However, Anuj testified that the couple used that account to pay for travel.

The couple maintained a long-distance relationship between the date of the marriage in 2016 and February 2018. Anuj applied for his green card in California as Arti's spouse in May 2017. Anuj moved to California four days before his appointment with immigration authorities regarding his green card application, in February 2018. The couple lived with Arti's parents until June 2018, when they found their own residence, a condominium, in Glendora.

In July 2018, Arti finally opened up to her brother and asked for his help because even after they had started to live together, Anuj was not interested in her and they had never had a physical or sexual relationship.

At the end of August or beginning of September 2018, Arti wanted to pursue marriage counseling because she was very unhappy. There were at least two conjoint sessions and during them, Arti brought up the issue of the lack of sexual relations between them. This issue was most concerning to Arti because she did not think it normal, and her friends and family also thought it strange. Before the counseling, Arti had suggested a medical checkup to Anuj, but he refused. Arti first spoke to Michael McClary, a marriage and family therapist, on her own and explained the "distant relationship" even after living together for two or three months, and she was told by McClary that something was wrong. Arti asked Anuj to go to counseling with her, and he agreed to go.

At the conjoint session, Arti brought up the issue of the lack of sexual relations in Anuj's presence. Anuj admitted as much in his testimony. The counselor's summary report states that both parties confirmed there has never been sexual intercourse between them. However, in his testimony, Anuj stated he never actually admitted that they did not have sex together, he simply did not "retaliate"[6] when Arti told the counselor that was the problem.

Thereafter Aman reached out and arranged to meet with Anuj at Victoria Gardens in October 2018, at which time Anuj said he loved Arti but was no longer attracted to her and he admitted there had not been a physical relationship between them. Aman offered his help regarding the issues Anuj had...

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