Filed 9/24/13 Pickens v. Wilson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

DESIREE PICKENS, Appellant,

v. DARREN WILSON, Respondent. D062826

(Super. Ct. No. 37-2012-00150915- PR-EB-CTL)

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 marri age was valid, and affirm.2 FACTUAL AND PROCEDUR AL BACKGROUND Pickens and Wilson provided the following f actual information to the trial court in support of Pickens's petition to decl are the parties' marriage invalid. 1 In August 1985 Pickens and Wilson obtained a confidential marriage li cense from the Sacramento County Clerk. According to Pickens, they were not living together when they obtained
the confidential license. 2 Thereafter, a pastor perform ed 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 lega l counsel that they did not ne ed 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 dissolu tion proceeding. In 2009, Pickens ma rried Frederick Pickens (Frederi ck). Thereafter, Pickens and Frederick were involved in a dissolution proceeding in Indi ana. In 2012, during the pendency of that proceeding, Pickens file d 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 pe tition to declare thei r marriage invalid. Wilson is not participating in this appeal.
2 To obtain a confidential (as opposed to a public) marriage licen se, the parties are required to be living together.3 submitted a declaration stating he had no objection to an or der finding they never had a legal marriage. In support of her petition, Pickens ar gued a legal marriage was never formed because she failed to co mply with the mandatory requirement that th e marriage license be returned to the county for filing. Pickens acknowledged that ther e was a statute that preserved the validity of a marriage when a nonparty failed to comply with the statutory procedures. However, she contended her cas e was distinct because it also involved her

own failure to comply w ith the statutory registration requir ement. Alternatively, Pickens asserted the marriage was void from its inception because sh e and Wilson had not legally obtained the confidential license given that th ey had not been living together when they obtained the license. Pickens also requested an order decl aring the marriage i nvalid on equitable grounds, stating her current hus band (Frederick) was "seeking to have her criminally prosecuted in Indiana for bigamy and depr ive 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 believe d in good faith the marriage was not valid, and Wilson did not object to an order findi ng the marriage invalid. She asserted she and Wilson would suffer no negative consequences if the marriage was declared invalid, and4 equity supported an invalidation order "to a void 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 solemn ize 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 becaus e 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 th e 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, Fr ederick's attorney disputed Pickens's characterization of the Illinois proceedings, stating that Frederick was "not pursuing a prosecution in Indiana." The court questione d whether Frederick had standing to appear in the California proceedings, but concluded this issue did no t need to be resolved for purposes of ruling on Pickens's petition to de clare her California marriage invalid. Frederick has not attempted to participate in this appeal.5 marriage in California. 4 (See Estate of DePasse (2002) 97 Ca l.App.4th 92, 99 ( DePasse ), overruled on other grounds in Ceja v. Rudolph & Sletten, Inc . (2013) 56 Cal.4th 1113, 1126.) We revi ew 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 refere nces are to the Family Code. We note that when the parties were ma rried in 1985, the fa mily law provisions governing marriage were set forth in the Ci vil 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 C ode 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 91 6, 919, fn. 1, 921-925 ( Cantarella ).) In the proceedings before the trial court an d on appeal, Pickens re ferences the current Family Code, not the former Ci vil 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 wh ich 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 licen se 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 docume nt issued by the coun ty clerk is a marriage license until it is registered w ith the county recorder, at wh ich time the license becomes a marriage certificate."6 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) o r, if they have been living t ogether as husband and wife, a confidential license (§§ 500, 501). 6 The parties must present the marriage license to the person solemnizing the marriage. (§§ 359, su bd. (c), 421, 506, subd. (a).) The code defines the persons who are authorized to so lemnize a marriage (§§ 400-402), and states that solemnization occurs when the parties de clare "in the physical presence of the person solemnizing the marriage and nece ssary 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 re quired 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 retu rn the authenticated li cense either to the

6 Unlike a public license, a confidential license, although filed with the county, is not available for public inspection. With out a court order, the county clerk may only confirm the existence of the ma rriage, but may not disclose the date of the marriage or any other information contained on the marriag e certificate. (§ 511; Hogoboom & King, Cal. Practice Guide, Family Law (The Rutter Group 2013) § 19.13, p. 19-11.)7 county recorder (for a public license), or to the county cler k (for a confidential license). (§§ 359, subd. (e), 423, 506, subd. (c); DePasse, supra , at p. 101.) 7 Section 306 summarizes these procedur al steps (license, solemnization, authentication, and registration with the co unty), and provides th at the failure by a
nonparty to comply with the st atutory requirements does not invalidate the marriage. 8 ( DePasse, supra , 97 Cal.App.4th at p. 106.) Furthe r, 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 purchas e 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: "T he person solemnizing the marriage shall return the marriage license, endorsed as required in Se ction 422, to the coun ty recorder of the county in which the license was issu ed within 10 days after the ceremony." Section 506, subdivision (c) states: "T he confidential marriag e 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 issu ed within 10 days after the ceremony."
8 Section 306 states: "Except as provi ded in Section 307, a marriage shall be licensed, solemnized, and auth enticated, and the authenticated marriage license shall be returned to the county recorder of the coun ty where the marriage li cense was issued, as provided in this part. Nonc ompliance 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 th is division for the marriage is known to exist, the parties may purchase a License and Certificate of D eclaration 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 re turned to the county recorder of the co unty in which the license was issued."8 In Cantarella, supra , 191 Cal.App.4th 916, the court concluded a marriage was valid even though the marriage license was not registered w ith 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 li cense 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 marriag e].) In contrast, the registration requirement, which was the duty of the officiate, not the parties , did little to ensure the pa rties 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 st atutory requirements, failure to comply with the registration requirement did not invalidate the marriage " regardless of who bore the responsibility for the nonregistration (whe ther 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.)9 the rare instance where a party failed to register public ev idence of the marriage, such failure might be inadvertent or involuntary (as in the case of a reje cted certificate) or might instead indicate a lack of consent at th at time. We do not believe the Legislature intended a marriage to be thereby rendered in valid. True, the keeping of accurate and complete marriage records benefits the public . But this goal pales compared to the societal importance of recognizing the validit y of marriages to which the parties have consented. To hold that a fa ilure by a party to register a certificate voids a marriage would invalidate 'marri ages already solemnized in this state and would, among other results, affect the marital status of the pa rties, their property rights and rights of inheritance.'. . . [I]t would 'negate the manifold fiduciary a nd legal obligations the parties understood they were incurring ,' due to 'a technical misstep along the way.' " ( Id . at pp. 924-925, fns. a nd 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 interi m period between the marriage ceremony and the filing of a . . . substitute certificat e, 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 a ttributed to Pickens as well as to her marriage officiate, we apply it here. It is clear from section 300 that although cons ent is the core element of a10 marriage, a valid marriage also requires a licen se 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 lic ense, and the marriage was properly solemnized by an officiate. The Family Code also requires authen tication of the marriage license by the officiate, and there is no contention this di d not occur here. The only missing element was the return of the license to the county for registrati on, 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 (includi ng the return of the license to the county) does not i nvalidate the marriage. ( DePasse, supra , 97 Cal.App.4th at p. 106.) Likewise, to the extent th e failure to register the ma rriage can be attributed to Pickens's assumption of the officiate's duty, the nonregistration was a technical misstep that did not invalidate the licensed, solemniz ed, consensual marriage. As explained in Cantarella , the technical nature of the registrati on 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 Ce rtificate of Declaration of Marriage" from the county clerk under section 425) reflects that the Legisl ature perceived nonregistration as a technical error that may be corrected w ithout 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 in11 Cantarella , see fns. 3 & 9, ante ) contains a provision stating the term "shall" is mandatory, not permissive, and the court posite d that the current mandatory nature of the registration requirement "a rguably suggests" that un der 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 cu rrent 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 re turned to the coun ty for registration does not mean noncompliance with this duty necessarily ne gates 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 expl ained, we conclude n onregistration of the license with the county does not alone inva lidate 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 conf idential 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 pe rmissive. . . ." Sections 306, 423, and 506 state the license "shall" be returned to the co unty, and section 306 provides that noncompliance by a nonparty to the marriage does not invalidate the marriage. (See fns. 6 & 7, ante .)12 arrangements affected the type of license they acquired, it di d 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 li cense 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 eliminat e common law marriage supports that license is essen tial to valid marriage] .) Nor is this a case where the parties obtained a confidential license by misrepre senting 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 fo r suspected immigration fraud purposes].) Pickens further contends the county did no t comply with its dut y 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 registra tion requirement has no bearing on the elements of consent, license, and so lemnization, 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 expi re 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 da ys 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 licenseholde rs that the officiate is oblig ated to return the license within 10 days after the cer emony. (§ 357, subd. (c).)13 unavailing since her marriage was solemnized prio r 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 ma rriage is not deemed invalid. These factors do not undermine the core element of cons ent to the marriage at the time of its occurrence, and Pickens has not cited any au thority to support invalidating a marriage based on these types of considerations. 13 Finally, Pickens challenges a ruling by th e 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 ha d a good faith belief the marriage was invalid and for this reason did not obtain a dissolution before marrying her current husband.14 as the statutory basis for her petiti on to declare the marriage invalid. 14 The trial court stated it did not believe section 103450 author ized a court to declare a marriage invalid. The court's statement in this re gard is of no practical impor t 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 cour t'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 ot her 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 inte rested person with the clerk of the superior court in and for (1) the county in which the . . . marriage is allege d to have occurr ed, [or] (2) the county of residence of the pers on whose . . . marriage it is soug ht 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 cer tified copy is not obtainable."15 DISPOSITION The judgment is affirmed.

HALLER, J. WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.