Filed 2/22/22 Marriage of Walther CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of HOWARD 

and KIRA WALTHER.

2d Civil No. B309062

(Super. Ct. No. 20FL00586)

(Santa Barbara County)

HOWARD WALTHER,

 Appellant,

v.

KIRA NEILSON,

 Respondent.

In April 2017 a stipulated final judgment of dissolution was 

entered dissolving the 18-year marriage of Howard Walther 

(appellant) and Kira Walther (respondent).1 Approximately three 

years later in March 2020, appellant filed the petition seeking to 

annul his already dissolved marriage. The petition seeks to 

1 In her brief respondent states that she “has . . . remarried 

and her last name is now Neilson.” 
2

nullify his dissolved marriage on the ground that respondent had 

committed fraud and bigamy. Proceeding in propria persona, 

appellant purports to appeal from a judgment of dismissal 

entered after the trial court had sustained respondent’s demurrer 

without leave to amend and had struck the petition as a “sham 

pleading.” We affirm because the stipulated final judgment of 

dissolution operates as res judicata on the issue of the legality of 

the parties’ marriage. It conclusively establishes that they were 

legally married and that the marriage cannot be annulled.

2

Trial Court’s Ruling

In an unsigned minute order, the trial court sustained the 

demurrer on several grounds: (1) the statute of limitations for 

filing the petition had expired; (2) the judgment of dissolution 

operated as res judicata “not only to the parties’ status with 

relation to each other, but also of all issues that were litigated or 

that could have been litigated therein”; (3) the petition for 

nullification was moot because the parties were no longer 

married; and (4) the allegations concerning respondent’s bigamy 

were speculative and devoid of any factual basis. The court 

struck the petition “as a sham pleading” because appellant had 

“pled facts [in the petition] that contradict the facts and position 

that he pleaded in earlier actions . . . [thus] prov[ing] the pleaded 

facts [in the petition] false.” The court issued a signed statement 

of decision incorporating the unsigned minute order. 

2 This is appellant’s third appeal concerning his marriage 

to respondent. (See In re Marriage of Walther (Aug. 17, 2016) 

B267209 [non-pub. opn.]; In re Marriage of Walther (Nov. 30, 

2015) B260104 [non-pub. opn.].)
3

Notice of Appeal

In the notice of appeal, appellant placed an “x” in a box 

indicating that he was appealing from a “[j]udgment of dismissal 

after an order sustaining a demurrer.” But the record on appeal 

does not contain a judgment of dismissal, and the register of 

actions shows that no such judgment was entered. “An order 

sustaining a demurrer is not appealable absent an order 

dismissing the complaint. . . . Because the case has been fully 

briefed . . . , we deem the order sustaining the demurrer[]

[without leave to amend] to incorporate a judgment of 

dismissal . . . .” (Lucas v. Santa Maria Public Airport Dist. (1995) 

39 Cal.App.4th 1017, 1022.)

Respondent’s Motion to Augment the Record 

or, in the Alternative, to Take Judicial Notice 

Respondent filed a motion requesting that this court 

augment the record to include two documents. The first is a 

reporter’s transcript of a hearing conducted in the prior 

dissolution proceeding, case number 1440419, on September 30, 

2016. During the hearing, the parties stipulated to a settlement 

of the dissolution proceeding. The parties understood that the 

settlement would be incorporated into a judgment. At the 

conclusion of the hearing, the court ordered the marriage 

dissolved as of the date of the hearing.3

3 The following colloquy occurred between the court and 

respondent:

“[THE COURT:] . . . [I]t’s your desire to have your marriage 

dissolved today?

“[RESPONDENT:] Yes, it is.

“THE COURT: Very well. The marriage is dissolved as of 

today’s date [September 30, 2016].” 
4

The second document is the stipulated judgment of 

dissolution entered on April 29, 2017. The judgment states that 

the parties’ marital status ended on September 30, 2016, the date 

of the prior hearing. 

Appellant has filed opposition to the motion for 

augmentation. We deny the motion because neither document 

was “filed or lodged in the case in superior court,” i.e., the case 

involving the petition for nullification of the marriage. (Cal. 

Rules of Court, rule 8.155(a)(1)(A).)

In the alternative, respondent requests that we take 

judicial notice of the documents pursuant to Evidence Code 

section 452, subdivision (d), permitting judicial notice of court 

records, and Evidence Code section 459, subdivision (a), 

permitting the reviewing court to “take judicial notice of any 

matter specified in Section 452.” (Evid. Code, § 459.)

Appellant opposes the request for judicial notice because 

the documents were not before the trial court when it ruled on 

the demurrer. (See Shuts v. Covenant Holdco LLC (2012) 208 

Cal.App.4th 609, 622, fn. 7 [“What was not before the trial court 

when it ruled on Covenant’s demurrer to plaintiffs’ [complaint] is 

the compilation of documents included in plaintiffs’ request for 

judicial notice . . . . For this reason, we decline to take 

judicial notice of these documents”].)

Although the documents were not physically before the 

trial court when it ruled on the demurrer, the court in effect 

considered the content of these documents. In its ruling the court 

stated, “[O]n 9/30/2016 a judgment of Dissolution of Marriage 

was already entered by the Court in the matter of Kira Walther 

v. Howard Walther, Case No. 1440419 . . . . [The parties’ 

marriage was dissolved on 9/30/2016, but a judgment of 
5

dissolution was not entered until April 29, 2017.] The Court 

finds that the judgment is res judicata . . . .” Since the trial court 

in effect considered the content of the documents, we conclude it 

is appropriate to judicially notice the actual documents.

Standard of Review

“A demurrer tests the legal sufficiency of factual allegations 

in a complaint. [Citation.] A trial court’s ruling sustaining a 

demurrer is erroneous if the facts alleged by the plaintiff state a 

cause of action under any possible legal theory. [Citations.]” (Lee 

Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th 

73, 78.) 

“[W]e apply the de novo standard of review in an appeal 

following the sustaining of a demurrer . . . .” (California 

Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 

247.) “[W]e assume the truth of all facts properly pleaded in the 

complaint and its exhibits or attachments, as well as those facts

that may fairly be implied or inferred from the express 

allegations. [Citation.] ‘We do not, however, assume the truth of 

contentions, deductions, or conclusions of fact or law.’ [Citation.]” 

(Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95.) “We . . . 

consider matters that may be judicially noticed . . . .” (Brown v.

Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 

279.)

When “a demurrer has been sustained without leave to 

amend, unless failure to grant leave to amend was an abuse of 

discretion, the appellate court must affirm the judgment if it is 

correct on any theory. [Citations.] If there is a reasonable 

possibility that the defect in a complaint can be cured by 

amendment, it is an abuse of discretion to sustain a demurrer 

without leave to amend. [Citation.] The burden is on the 
6

plaintiff . . . to demonstrate the manner in which the complaint 

might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

Distinction Between Nullification 

and Dissolution of Marriage

“[D]issolution of marriage and nullity of marriage are 

premised on inconsistent contradictory harms suffered: Based on 

grounds that arise after the marriage, a dissolution action is 

brought to terminate a valid marriage; based on grounds 

that arose prior to the alleged marriage, a nullity action is 

brought to determine whether a valid marriage ever existed.” (In

re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1348.) “Very 

simply, ‘a judgment of dissolution terminates a valid marriage,’ 

whereas ‘a judgment of nullity declares that the marriage was 

void from its inception.’” (Ibid.) “Thus, a judgment of nullity ‘has 

been said to “relate back” and erase the marriage and all its 

implications from the outset.’” (In re Marriage of Seaton (2011) 

200 Cal.App.4th 800, 807.)

The Doctrine of Res Judicata Operates to

Bar Appellant’s Petition for Nullification

The stipulated final judgment of dissolution is dispositive of 

this appeal. “A final judgment dissolving a marriage, as between 

the parties to the action, is res judicata of their status with 

relation to each other, and it determines conclusively, as between 

the parties, that they were legally married before the 

judgment regardless of the true fact.” (33 Cal.Jur.3d (Nov. 2021 

update) Family Law § 784.) “[A] final decree of divorce 

conclusively determines, as between the parties thereto, that 

they were legally married; and this regardless of the true fact 

[citations] and seemingly despite the most flagrant fraud 

practiced by one of the parties. Such being the case, the decree of 
7

divorce may not be collaterally attacked by the parties thereto, 

and all the facts therein found or necessary to be found, such as 

the fact of marriage, are conclusive upon the parties in 

subsequent proceedings whether they pertain to divorce or not.” 

(Petry v. Petry (1941) 47 Cal.App.2d 594, 595; see also In re Lee’s

Estate (1927) 200 Cal. 310, 314; Blumenthal v. Blumenthal (1929) 

97 Cal.App. 558, 561.)

Thus, appellant’s petition for nullification of the marriage 

fails to state a cause of action because the stipulated final 

judgment of dissolution conclusively establishes that the parties 

were legally married. We need not consider the other grounds 

upon which the trial court relied in sustaining the demurrer 

without leave to amend. Nor need we consider the trial court’s 

order striking the petition as a sham pleading or respondent’s 

argument that appellant “waive[d] . . . his right to contest the 

validity of the marriage by stipulating to dissolve it.” 

Appellant’s Remaining Contentions

In part IV of his opening brief, appellant raises several 

additional claims of trial court error that we need not discuss. If 

the trial court erred, appellant has failed to show that the errors 

were prejudicial, i.e., “‘it is reasonably probable that a result 

more favorable to the appealing party would have been reached 

in the absence of the error.’” (Cassim v. Allstate Ins. Co. (2004) 

33 Cal.4th 780, 800.) Without a showing of prejudice, any error 

was harmless and therefore cannot justify a reversal of the 

judgment. (Id. at pp. 800-801; Cal.Const., art. VI, § 13; Code Civ. 

Proc., § 475.) “[T]he burden to demonstrate prejudice is on the 

appellant.” (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 

528.)
8

Disposition

The judgment of dismissal is affirmed. Respondent shall 

recover her costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Donna D. Geck, Judge

Superior Court County of Santa Barbara

______________________________

Howard Walther, in pro. per., for Appellant.

Law Offices of Stephanie J. Finelli and Stephanie J. Finelli, 

for Respondent.