Filed 9/24/13 Pickens v. Wilson CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



DESIREE PICKENS,                                                    D062826

         Appellant,

         v.                                                         (Super. Ct. No. 37-2012-00150915-
                                                                     PR-EB-CTL)
DARREN WILSON,

         Respondent.


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

Kelety, Judge. Affirmed.

         Fair Cadora and Lauren M. Fair for Appellant.

         No appearance for Respondent.

         Desiree Pickens appeals from a judgment denying her petition for a declaration of

the invalidity of her marriage to Darren Wilson. She raises a variety of contentions to

support her claim that her marriage should be deemed invalid. We agree with the trial

court's ruling that the marriage was valid, and affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND

       Pickens and Wilson provided the following factual information to the trial court in

support of Pickens's petition to declare the parties' marriage invalid.1 In August 1985

Pickens and Wilson obtained a confidential marriage license from the Sacramento

County Clerk. According to Pickens, they were not living together when they obtained

the confidential license.2 Thereafter, a pastor performed their wedding ceremony at

Pickens's church and endorsed the license. The pastor gave the endorsed license to

Pickens and asked her to register it with the county. Pickens failed to do so.

       In 1994, the parties separated. At the time of their separation, Pickens and Wilson

were each told by separate legal counsel that they did not need to obtain a dissolution of

the marriage because the marriage was never legally formed given that the paperwork

was never filed with the county. Relying on this advice from counsel, neither party

commenced a dissolution proceeding.

       In 2009, Pickens married Frederick Pickens (Frederick). Thereafter, Pickens and

Frederick were involved in a dissolution proceeding in Indiana. In 2012, during the

pendency of that proceeding, Pickens filed the instant petition in San Diego superior

court, requesting that the court declare her California marriage to Wilson invalid. Wilson




1     Wilson did not object to Pickens's petition to declare their marriage invalid.
Wilson is not participating in this appeal.

2      To obtain a confidential (as opposed to a public) marriage license, the parties are
required to be living together.
                                             2
submitted a declaration stating he had no objection to an order finding they never had a

legal marriage.

       In support of her petition, Pickens argued a legal marriage was never formed

because she failed to comply with the mandatory requirement that the marriage license be

returned to the county for filing. Pickens acknowledged that there was a statute that

preserved the validity of a marriage when a nonparty failed to comply with the statutory

procedures. However, she contended her case was distinct because it also involved her

own failure to comply with the statutory registration requirement. Alternatively, Pickens

asserted the marriage was void from its inception because she and Wilson had not legally

obtained the confidential license given that they had not been living together when they

obtained the license.

       Pickens also requested an order declaring the marriage invalid on equitable

grounds, stating her current husband (Frederick) was "seeking to have her criminally

prosecuted in Indiana for bigamy and deprive her of certain rights attaching to a

marriage" in the Indiana dissolution proceedings. She cited the facts that she and Wilson

had relied on the advice of counsel and believed in good faith the marriage was not valid,

and Wilson did not object to an order finding the marriage invalid. She asserted she and

Wilson would suffer no negative consequences if the marriage was declared invalid, and




                                            3
equity supported an invalidation order "to avoid serious prejudice to [her] in Indiana."3

       After a hearing on April 24, 2012, the trial court denied Pickens's petition. The

court found the marriage was valid because a license was obtained; there was consent of

the parties; a ceremony took place to solemnize the marriage; and the sole defect of

failing to return the license for registration is specifically excused by statute.

                                        DISCUSSION

       Pickens argues the trial court erred in denying her request for an order declaring

her marriage to Wilson invalid because the relevant statute only excuses a nonparty's

failure to comply with the statutory requirements, and in her case both a nonparty and a

party failed to return the marriage license to the county for registration. She also raises

several additional arguments which we shall delineate below. We first summarize the

relevant law.

                                        Relevant Law

       The Family Code specifies the procedures to be followed to create a legally valid




3      Frederick (Pickens's Illinois husband) filed an objection to Pickens's petition to
declare her California marriage invalid, and an attorney appeared at the hearing on
Frederick's behalf. At the hearing, Frederick's attorney disputed Pickens's
characterization of the Illinois proceedings, stating that Frederick was "not pursuing a
prosecution in Indiana." The court questioned whether Frederick had standing to appear
in the California proceedings, but concluded this issue did not need to be resolved for
purposes of ruling on Pickens's petition to declare her California marriage invalid.
Frederick has not attempted to participate in this appeal.

                                               4
marriage in California.4 (See Estate of DePasse (2002) 97 Cal.App.4th 92, 99

(DePasse), overruled on other grounds in Ceja v. Rudolph & Sletten, Inc. (2013) 56

Cal.4th 1113, 1126.) We review the statutes de novo to determine whether Pickens's

marriage to Wilson was legally valid. (DePasse, supra, at p. 99; Cantarella, supra, 191

Cal.App.4th at p. 921.)

       Section 300 provides that marriage requires (1) consent of the parties, (2) issuance

of a license, and (3) solemnization. Section 300, subdivision (a) underscores that consent

alone does not suffice; rather, consent "must be followed by the issuance of a license and

solemnization . . . ."5



4      Unspecified statutory references are to the Family Code.
       We note that when the parties were married in 1985, the family law provisions
governing marriage were set forth in the Civil Code, not the Family Code. Effective
January 1, 1994, the Family Code provisions were enacted to replace these Civil Code
provisions. The portions of the Family Code relevant to this case are substantively
essentially the same as the corresponding former Civil Code provisions, with some
differences that do not affect resolution of the issues on appeal. (Cal. Law Revision
Com. com., 29C West's Ann. Fam. Code (2004 ed.) foll. §§ 1, p. 2, 300, p. 169; see In re
Marriage of Cantarella (2011) 191 Cal.App.4th 916, 919, fn. 1, 921-925 (Cantarella).)
In the proceedings before the trial court and on appeal, Pickens references the current
Family Code, not the former Civil Code. We do the same.

5      Section 300 states: "(a) Marriage is a personal relation arising out of a civil
contract between a man and a woman, to which the consent of the parties capable of
making that contract is necessary. Consent alone does not constitute marriage. Consent
must be followed by the issuance of a license and solemnization as authorized by this
division, except as provided by Section 425 and Part 4 (commencing with Section 500.)
[¶] (b) For purposes of this part, the document issued by the county clerk is a marriage
license until it is registered with the county recorder, at which time the license becomes a
marriage certificate."

                                             5
       The Family Code specifies the procedures to secure the license and accomplish the

solemnization. Generally, the parties obtain the license from the county clerk; it may be

either a public license (§ 350) or, if they have been living together as husband and wife, a

confidential license (§§ 500, 501).6 The parties must present the marriage license to the

person solemnizing the marriage. (§§ 359, subd. (c), 421, 506, subd. (a).) The code

defines the persons who are authorized to solemnize a marriage (§§ 400-402), and states

that solemnization occurs when the parties declare "in the physical presence of the person

solemnizing the marriage and necessary witnesses, that they take each other as husband

and wife" (§ 420, subd. (a)).

       The Family Code also requires the person solemnizing the marriage (the officiate)

to (1) authenticate the marriage license, and (2) return the authenticated license to the

county so the marriage can be registered. The officiate is required to authenticate the

license by ensuring that the required matters are inscribed on the license. (§§ 359, subd.

(d), 422, 506, subd. (b); DePasse, supra, 97 Cal.App.4th at p. 101.) Thereafter, within a

specified time period, the officiate must return the authenticated license either to the




6      Unlike a public license, a confidential license, although filed with the county, is
not available for public inspection. Without a court order, the county clerk may only
confirm the existence of the marriage, but may not disclose the date of the marriage or
any other information contained on the marriage certificate. (§ 511; Hogoboom & King,
Cal. Practice Guide, Family Law (The Rutter Group 2013) § 19.13, p. 19-11.)

                                              6
county recorder (for a public license), or to the county clerk (for a confidential license).

(§§ 359, subd. (e), 423, 506, subd. (c); DePasse, supra, at p. 101.)7

       Section 306 summarizes these procedural steps (license, solemnization,

authentication, and registration with the county), and provides that the failure by a

nonparty to comply with the statutory requirements does not invalidate the marriage.8

(DePasse, supra, 97 Cal.App.4th at p. 106.) Further, the code provides for a remedy in

the event the license was not registered with the county after the solemnization ceremony,

allowing the parties to purchase a "License and Certificate of Declaration of Marriage"

from the county clerk and return it to the county recorder. (§ 425; see DePasse, supra, 97

Cal.App.4th at p. 104.)9



7      Section 423 states: "The person solemnizing the marriage shall return the
marriage license, endorsed as required in Section 422, to the county recorder of the
county in which the license was issued within 10 days after the ceremony."
       Section 506, subdivision (c) states: "The confidential marriage license shall be
returned by the person solemnizing the marriage to the office of the county clerk in the
county in which the license was issued within 10 days after the ceremony."

8      Section 306 states: "Except as provided in Section 307, a marriage shall be
licensed, solemnized, and authenticated, and the authenticated marriage license shall be
returned to the county recorder of the county where the marriage license was issued, as
provided in this part. Noncompliance with this part by a nonparty to the marriage does
not invalidate the marriage."

9       Section 425 states: "If no record of the solemnization of a California marriage
previously contracted under this division for the marriage is known to exist, the parties
may purchase a License and Certificate of Declaration of Marriage from the county clerk
in the parties' county of residence one year or more from the date of the marriage. The
license and certificate shall be returned to the county recorder of the county in which the
license was issued."

                                              7
        In Cantarella, supra, 191 Cal.App.4th 916, the court concluded a marriage was

valid even though the marriage license was not registered with the county due to the

parties' decision (possibly for tax reasons) not to resubmit the license for registration

after it was returned to the parties for a technical error. (Id. at pp. 919-920, 924, fn. 8.)10

The Cantarella court reasoned that the core element of a valid marriage is the parties'

consent. (Id. at pp. 923-924.) The license and solemnization requirements were directed

at ensuring that the parties had the capacity to consent and that they were actually

consenting; for example, the license disclosed their ages, and at solemnization the parties

declared that they accepted each other as spouses. (Ibid.; see DePasse, supra, 97

Cal.App.4th at pp. 95, 102 [under California's statutory scheme, securement of license

essential to valid marriage].) In contrast, the registration requirement, which was the

duty of the officiate, not the parties, did little to ensure the parties had validly consented

to the marriage, but rather served a recordkeeping function. (Cantarella, supra, at p.

924.)

        The Cantarella court concluded that although the statutory scheme explicitly

excused only a nonparty's failure to comply with the statutory requirements, failure to

comply with the registration requirement did not invalidate the marriage "regardless of

who bore the responsibility for the nonregistration (whether a party or nonparty)."

(Cantarella, supra, 191 Cal.App.4th at p. 925, italics added.) Cantarella reasoned: "In



10     Cantarella evaluated the Civil Code statutes that were the predecessors to the
current Family Code statutes. (See Cantarella, supra, 191 Cal.App.4th at pp. 919, fn. 1,
921.)
                                               8
the rare instance where a party failed to register public evidence of the marriage, such

failure might be inadvertent or involuntary (as in the case of a rejected certificate) or

might instead indicate a lack of consent at that time. We do not believe the Legislature

intended a marriage to be thereby rendered invalid. True, the keeping of accurate and

complete marriage records benefits the public. But this goal pales compared to the

societal importance of recognizing the validity of marriages to which the parties have

consented. To hold that a failure by a party to register a certificate voids a marriage

would invalidate 'marriages already solemnized in this state and would, among other

results, affect the marital status of the parties, their property rights and rights of

inheritance.'. . . [I]t would 'negate the manifold fiduciary and legal obligations the parties

understood they were incurring,' due to 'a technical misstep along the way.' " (Id. at pp.

924-925, fns. and citation omitted.)

       Cantarella further stated that its conclusion was consistent with the statute that

permitted a party to purchase substitute documents in the event there was no record of the

solemnization of the marriage. Cantarella observed that, significantly, this curative

statute did not provide that "in the interim period between the marriage ceremony and the

filing of a . . . substitute certificate, the marriage was invalid." (Cantarella, supra, 191

Cal.App.4th at p. 925.)

                                            Analysis

       We agree with Cantarella's reasoning, and, assuming arguendo the nonregistration

in this case can properly be attributed to Pickens as well as to her marriage officiate, we

apply it here. It is clear from section 300 that although consent is the core element of a

                                                9
marriage, a valid marriage also requires a license and solemnization. There is no dispute

that all three of the elements set forth in section 300 occurred here: the parties intended

to consent to the marriage, they obtained a license, and the marriage was properly

solemnized by an officiate.

        The Family Code also requires authentication of the marriage license by the

officiate, and there is no contention this did not occur here. The only missing element

was the return of the license to the county for registration, which was the duty of the

officiate, not the parties. As recognized by Pickens, under the express terms of section

306, an officiate's failure to perform his or her duties (including the return of the license

to the county) does not invalidate the marriage. (DePasse, supra, 97 Cal.App.4th at p.

106.)

        Likewise, to the extent the failure to register the marriage can be attributed to

Pickens's assumption of the officiate's duty, the nonregistration was a technical misstep

that did not invalidate the licensed, solemnized, consensual marriage. As explained in

Cantarella, the technical nature of the registration requirement is shown by the fact that

nonregistration does not undermine the core element of consent at the time of the

marriage. Further, the statutory provision of a remedy in the event of nonregistration

(i.e., the option to purchase a "License and Certificate of Declaration of Marriage" from

the county clerk under section 425) reflects that the Legislature perceived nonregistration

as a technical error that may be corrected without affecting the validity of the marriage.

        To support a contrary conclusion, Pickens cites a footnote in Cantarella where the

court noted that the current Family Code (unlike the former Civil Code evaluated in

                                              10
Cantarella, see fns. 3 & 9, ante) contains a provision stating the term "shall" is

mandatory, not permissive, and the court posited that the current mandatory nature of the

registration requirement "arguably suggests" that under the current code a party's failure

to register the marriage license could invalidate the marriage. (Cantarella, supra, 191

Cal.App.4th at p. 923 & fn. 7.)11 The marriage in this case occurred in 1985, which was

before enactment of the current Family Code; thus Cantarella's statement concerning the

current code is not applicable here. (See fn. 3, ante.) In any event, the statement was

dicta, and we decline to follow its suggestion. The fact that the statute mandates that the

authenticated license be returned to the county for registration does not mean

noncompliance with this duty necessarily negates the legal validity of the underlying

marriage. (See Bayside Auto & Truck Sales, Inc. v. Department of Transportation (1993)

21 Cal.App.4th 561, 566 [not every provision which is mandatory in the sense of being

obligatory (rather than permissive) has an invalidating effect in the event of

noncompliance].) For the reasons we have explained, we conclude nonregistration of the

license with the county does not alone invalidate the marriage, even if a party can be

deemed responsible for the nonregistration.

       Pickens also argues the marriage was void at its inception because the parties

falsely claimed they were living together when they secured the confidential license. We

are not persuaded. Although the untrue statement by the parties about their living


11     Section 12 states: " 'Shall' is mandatory and 'may' is permissive. . . ." Sections
306, 423, and 506 state the license "shall" be returned to the county, and section 306
provides that noncompliance by a nonparty to the marriage does not invalidate the
marriage. (See fns. 6 & 7, ante.)
                                              11
arrangements affected the type of license they acquired, it did not alter the facts that they

were entitled to a license and that they did in fact secure one; i.e., this is not a case where

the complete absence of a license obviates the validity of the marriage. (Compare

Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 204 Cal.App.2d 805, 806-807, 809

[parties' placement of assumed names, rather than real names, on marriage license did not

invalidate marriage] with DePasse, supra, 97 Cal.App.4th at p. 103 [failure to obtain

license invalidated marriage; legislative intent to eliminate common law marriage

supports that license is essential to valid marriage].) Nor is this a case where the parties

obtained a confidential license by misrepresenting their living arrangements under

circumstances suggesting the marriage was a sham. (See, e.g., People v. Hassan (2008)

168 Cal.App.4th 1306, 1308-1310 [defendant obtained confidential license by falsely

claiming parties were living together for suspected immigration fraud purposes].)

       Pickens further contends the county did not comply with its duty to notify her that

the license must be returned to the county for registration, and her license has expired.12

Her claim that the county did not notify her of the registration requirement has no bearing

on the elements of consent, license, and solemnization, all of which exist here and

establish the validity of her marriage. Her contention that her license had expired is


12     Both public and confidential licenses expire 90 days after their issuance. (§§ 356,
504.) The county clerk is required to transmit a list of the issued marriage licenses to the
county recorder, and if a license has not been returned within 60 days after its issuance,
the county recorder must notify the licenseholder that it has not been returned and that it
will expire on the date shown on its face. (§ 357, subds. (a), (b).) Also, the county
recorder must notify licenseholders that the officiate is obligated to return the license
within 10 days after the ceremony. (§ 357, subd. (c).)

                                              12
unavailing since her marriage was solemnized prior to the expiration date of the license.

The statutory scheme does not support that the failure to register the license causes it to

expire; to the contrary, for the reasons we have explained, a license is valid

notwithstanding the failure to register it.

       Pickens also reiterates her request for equitable relief, noting that Wilson has no

objection to an order declaring the marriage invalid, and asserting she will be seriously

prejudiced in the Illinois proceeding if the marriage is not deemed invalid. These factors

do not undermine the core element of consent to the marriage at the time of its

occurrence, and Pickens has not cited any authority to support invalidating a marriage

based on these types of considerations.13

       Finally, Pickens challenges a ruling by the trial court that it had no authority to

declare the marriage invalid under Health and Safety Code section 103450 (section

103450). In her petition to the trial court, Pickens cited section 309 and section 103450




13     The fact that the marriage was valid does not mean Pickens cannot seek to present
her claim to the Illinois court that, based on counsel's advice, she had a good faith belief
the marriage was invalid and for this reason did not obtain a dissolution before marrying
her current husband.

                                              13
as the statutory basis for her petition to declare the marriage invalid.14 The trial court

stated it did not believe section 103450 authorized a court to declare a marriage invalid.

The court's statement in this regard is of no practical import because after discussing this

matter, the court stated that even assuming section 103450 was broad enough to permit

the court's adjudication of the validity of the marriage, the court found the marriage to be

valid. Because we agree with the trial court's conclusion on the validity of the marriage,

we need not decide the scope of section 103450 in conjunction with section 309.




14      Section 309 states: "If either party to a marriage denies the marriage, or refuses to
join in a declaration of the marriage, the other party may proceed, by action pursuant to
Section 103450 of the Health and Safety Code, to have the validity of the marriage
determined and declared."
        Section 103450, subdivision (a) states in relevant part: "A verified petition may
be filed by any beneficially interested person with the clerk of the superior court in and
for (1) the county in which the . . . marriage is alleged to have occurred, [or] (2) the
county of residence of the person whose . . . marriage it is sought to establish . . . for an
order to judicially establish the fact of, and the time and place of, a . . . marriage that is
not registered or for which a certified copy is not obtainable."
                                              14
                                 DISPOSITION

     The judgment is affirmed.



                                               HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.




                                     15
