Tostado v. Tostado

• Court: Washington Court of Appeals
• Writing for the Court: Van Deren
• Citation: Tostado v. Tostado, 151 P.3d 1060, 137 Wn. App. 136 (Wash. App. 2007)
• Decision Date: 06 February 2007
• Docket Number: No. 33336-8-II.
• Parties: Maria Susana TOSTADO, Respondent, v. Sergio TOSTADO, Appellant.

151 P.3d 1060

137 Wn. App. 136

Maria Susana TOSTADO, Respondent, v. Sergio TOSTADO, Appellant.

No. 33336-8-II.

Court of Appeals of Washington, Division 2.

February 6, 2007.

Sergio Tostado (Appearing Pro Se), Lacey, WA, for Appellant.

Maria S. Tostado (Appearing Pro Se), Lakewood, WA, for Respondent.

VAN DEREN, J.

¶ 1 Sergio Tostado appeals the trial court's disposition in a marriage dissolution action instituted by Maria Tostado. He contends that the trial court erred (1) in declining to recognize and enforce the parties' agreed 1999 Mexican dissolution decree, (2) in awarding custody¹ of their minor child to Maria, and (3) in ordering Sergio to pay ongoing and back child support. We hold that the trial court erred in refusing to recognize the validity of the Mexican decree and custody determination and remand to the trial court for entry of findings of fact and conclusions of law based on a valid Mexican decree. We also vacate the trial court's child support orders and its judgment for back child support, subject to further orders of the court.

FACTS²

¶ 2 Maria and Sergio married on August 27, 1984, in Jalisco, Mexico. Immediately after the marriage, they moved to the United States. Sergio maintained residences in both Mexico and the United States, and Maria entered the United States representing herself as Sergio's fiancée. On October 15, 1984, they married again in Los Angeles, California, apparently to satisfy immigration officials.

¶ 3 During their marriage, they had two children, Jacqueline and Sergio Jr.,³ while residing mainly in the United States.⁴ On June 30, 1999, they jointly petitioned a Mexican court for a mutual consent divorce in Jalisco, Mexico. The children resided with Maria in Tijuana, Mexico, for nine months before the Mexican divorce petition was filed. In their petition, they agreed that Sergio would have custody of both children and asked the court to grant this relief. Twelve days later, a Mexican family court granted their petition, dissolving their marriage and making Sergio the custodian of the children.

¶ 4 One week after their divorce in Mexico, they returned to Washington and lived together as a family for the next four years until August, 2003. During this four-year period, they held themselves out as husband and wife. In addition to residing together for periods of time, Sergio used Maria's employer provided marital medical benefits and marital travel benefits.

¶ 5 On February 10, 2004, Maria filed for dissolution of their marriage in Washington. In his response, Sergio asked the court to recognize the Mexican dissolution decree but admitted the court's jurisdiction over the property division. At trial, a guardian ad litem testified that "both of the children had no desire to spend any time with their father unless they initiated the contact ... because of having to witness what I would consider domestic violence [and] control issues between their father and their mother." Report of Proceedings (RP) at 126. She also stated her belief that Sergio should seek domestic violence treatment.

¶ 6 The court declined to recognize and enforce the Mexican dissolution decree based on the following findings of fact:

An alleged marriage taking place in August of 1984 in Mexico between the parties is not before this court. The October 15, 1984, marriage that took place in Los Angeles, California, is a valid marriage. Further, a Mexican divorce that took place in July 1999 is not and cannot be recognized by this court for the following reasons:

1. The divorce by its own terms did not relate to the valid marriage dated October 15, 1984. It only referenced the alleged marriage that supposedly took place in Mexico in August 1984, which apparently was not acknowledged by the parties, because they were married in California on October 15, 1984. Further, they obtained (that respondent testified about) a tourist visa document that respondent helped procure for petitioner that characterized petitioner as only respondent's fiancee when the parties entered this country and were married in October 1984.

2. Petitioner has suffered a long domestic violence victim history at the hands of the respondent from at least 1995 until the present time. The court finds that the incidents that the petitioner testified of did in fact happen, as she testified and her testimony was credible.

3. This court finds that petitioner was not afforded due process in regards to the Mexican divorce. The divorce petition was filed on June 30, 1999, and the decree was entered just days later on July 12, 1999. The wife was not afforded an opportunity for an attorney to represent her in that divorce action. The husband, to the contrary was represented by a family member. Further, the parties did not treat the divorce as having any effect in the United States. This was in part based on the husband's representations to the wife that the Mexican divorce was invalid in the United States.

4. Both parties resided as husband and wife and held out themselves as being married until they separated in August of 2003. The husband specifically testified that he used the wife's marital medical benefits .... The husband further used the wife's marital travel benefits through her employment even later than the time of separation in August of 2003. The husband further admitted to residing during significant periods of time with his wife as a marital community until the separation took place in August 2003.

Clerk's Papers (CP) at 158-59. The court designated Maria as the custodian of Sergio Jr., the only minor child at the time of the dissolution, and entered a child support order requiring Sergio to pay $702.06 per month for both children. It also ordered Sergio to pay back support in the amount of $8,321.65 for the period between March 1, 2004 and April 1, 2005. Finally, it awarded attorney fees in the amount of $1,500 to Maria.

¶ 7 Sergio appeals.

ANALYSIS

I. MEXICAN DISSOLUTION DECREE

¶ 8 Sergio contends that the trial court erred by entering a dissolution decree, a parenting plan that gave custody of the children to Maria, and a child support order requiring him to pay on-going and back child support because the court should have recognized and enforced the Mexican dissolution decree and custody order. He acknowledges that the trial court could have exercised jurisdiction over a custody modification had Maria filed a proper petition. Maria claims that the court properly exercised jurisdiction because she represented herself as Sergio's fiancée, not as his spouse, when she entered the United States and because they went through a marriage ceremony in California.

¶ 9 We review factual findings under a substantial evidence standard. Davis v. Dep't of Labor & Indus., 94 Wash.2d 119, 123-24, 615 P.2d 1279 (1980). Evidence is substantial if it is sufficient to persuade a fair-minded person. Holland v. Boeing Co., 90 Wash.2d 384, 390-91, 583 P.2d 621 (1978). We review legal determinations de novo. Mt. Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994).

¶ 10 Marriage is a personal, legal status, which is distinguishable "from the rights and privileges that are incidents of a marriage." State v. Rivera, 95 Wash.App. 961, 965, 977 P.2d 1247 (1999) (citing In the Matter of the Estate of Shippy, 37 Wash.App. 164, 168, 678 P.2d 848 (1984)). "A marriage valid in the jurisdiction where contracted and consummated, is a valid marriage in the state of Washington." In the Matter of the Welfare of Warren, 40 Wash.2d 342, 344, 243 P.2d 632 (1952) (citing In re Gallagher's Estate, 35 Wash.2d 512, 213 P.2d 621 (1950)); see also Rivera, 95 Wash.App. at 966, 977 P.2d 1247 (noting that a Mexican marriage is valid in Washington if it is valid in Mexico).

¶ 11 Here, the evidence included valid certified records of Maria and Sergio's Mexican dissolution decree and their mutual consent divorce petition, both of which contain information about their marriage in Jalisco, Mexico, in August 1984. The fact that Maria represented herself as Sergio's fiancée when she entered the United States does not invalidate their valid marriage in Mexico. Thus, substantial evidence does not support the court's finding that only the California marriage was valid.

¶ 12 Moreover, the California marriage did not legally change Sergio and Maria's already-married status. Although repeating their vows apparently satisfied immigration officials, it was a nullity because a marriage in California can only occur between "an unmarried male" and "an unmarried female." CAL. FAM.CODE § 301. Accordingly, their Mexican marriage remained valid and both Mexican and United States courts were required to recognize its validity.

¶ 13 Maria also argues due process violations regarding the Mexican decree because "[she] was subjected to great distress from Sergio and his family to agree to the divorce in Mexico" and because "Sergio testifies that the law firm that was responsible for the Mexican divorce decree is his family's." Br. of Resp't at 7. Her due process argument is neither briefed, nor does it include citations to legal authority, and we therefore do not address those claims. RAP 10.3; State v. Dennison, 115 Wash.2d 609, 629, 801 P.2d 193 (1990) (citing Smith v. King, 106 Wash.2d 443, 722 P.2d 796 (1986)).

¶ 14 Furthermore, even if her argument were reviewable, she does not articulate procedural due process violations capable of invalidating the Mexican decree. The facts are (1) Maria and Sergio petitioned together for a mutual consent divorce in Mexico based on their Mexican marriage; (2) Maria's allegations of a due process violation do not relate to due process concerns; (3) there is no evidence that Maria did not receive proper notice or opportunity to have counsel; and (4) although the Mexican court did not wait 90 days to enter the dissolution decree, as is required in Washington, this procedural requirement does not relate to due process, and...