gno.law

Marriage of Banhagel and Sheveleva CA4/1

California Court of Appeal · D061873 · 2014-01-09 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. DN163215
Trial judge
Patti C. Ratekin (commissioner)
Outcome
affirmed — Affirmed.
Area
family
Panel
McINTYRE (author), Judith L. Haller, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:57Z · confidence high

The trial court annulled the marriage based on fraud and denied the appellant's request for a continuance to present evidence after she invoked the Fifth Amendment. The appellate court affirmed the judgment, finding no abuse of discretion in denying the continuance and no error in the fraud finding.

Ruling reviewedStandardThe courtThe model
Denial of motion for continuance
“Under the lesser abuse of discretion standard, "an abuse of discretion results in reversible error only when the denial of a continuance results in the denial of a fair hearing, or otherwise prejudices a party."”
abuse of discretionnot reachedagree with court
The court applied the abuse of discretion standard, noting that reversal requires a showing of prejudice. It found no prejudice because the trial court stated it would have reached the same conclusion based on trial testimony alone, and the appellant failed to demonstrate that her potential testimony was incriminating or that she was denied the right to present other witnesses.
Judgment of annulment based on fraud
“Although not challenged by Elena, the evidence presented at trial supported the family court's finding that Elena entered into the marriage with no intention of performing her marital duties.”
substantial evidencenot reachedagree with court
The court noted the appellant did not challenge the sufficiency of the evidence. It reviewed the record and found that the testimony of a third-party witness and the appellant's own inconsistent statements supported the trial court's finding that the appellant concealed an intention not to perform marital duties, which constitutes fraud going to the essence of the marriage.

Authorities

  • relied: Forthmann v. Boyer (2002) 97 Cal.App.4th 977 — A trial court has discretion to grant or deny a continuance, and the complaining party bears the burden of demonstrating an abuse occurred.
  • relied: In re Enrique G. (2006) 140 Cal.App.4th 676 — Structural errors require automatic reversal without regard to the strength of the evidence.
  • relied: Marriage of Carlsson (2008) 163 Cal.App.4th 281 — Violating a party's right to present testimony and evidence is a structural error requiring automatic reversal.
  • relied: Maness v. Meyers (1975) 419 U.S. 449 — The Fifth Amendment guarantees that a person may not be compelled to testify or give evidence against herself.
  • relied: Wehling v. Columbia Broadcasting System (1979) 608 F.2d 1084 — A witness may invoke the Fifth Amendment if they reasonably apprehend a risk of self-incrimination, even if no charges are pending.
  • relied: Fuller v. Superior Court (2001) 87 Cal.App.4th 299 — The court, not the party, decides whether the privilege against self-incrimination is well-founded after a particularized inquiry.
  • relied: People v. Seijas (2005) 36 Cal.4th 291 — The objecting party must sustain the claim of privilege unless it clearly appears the evidence cannot possibly incriminate the person.
  • relied: People v. Cleveland (2004) 32 Cal.4th 704 — Reopening evidence may be appropriate to allow examination of witnesses to explain or rebut inferences based on prior evidence considered for impeachment.
  • relied: Freeman v. Sullivant (2011) 192 Cal.App.4th 523 — An abuse of discretion in denying a continuance results in reversible error only when it denies a fair hearing or prejudices a party.
  • relied: Marshall v. Marshall (1931) 212 Cal. 736 — Fraud necessary to warrant nullification must go to the very essence of the marriage relation.
  • relied: Millar v. Millar (1917) 175 Cal. 797 — A secret determination to refuse to engage in sexual intercourse is sufficient to support an annulment.
  • relied: In re Marriage of Liu (1987) 197 Cal.App.3d 143 — Concealing an intention not to engage in sexual relations to acquire a green card supports annulment.

The appellate opinion: sound — The opinion correctly distinguishes between structural errors (which require automatic reversal) and discretionary denials of continuance (which require a showing of prejudice). It properly applies the standard for invoking the Fifth Amendment and finds no prejudice because the appellant could have presented other witnesses and the trial court indicated the outcome would not change.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The family court annulled the parties' marriage on the ground that Elena Sheveleva obtained Matthew Banhagel's consent by fraud, having entered the marriage with no intention of performing her marital duties; after discovering it had referenced witness declarations it earlier said it would not consider, the court reopened the evidence but denied Elena's request to continue trial until immigration proceedings concluded after she invoked the Fifth Amendment. The Court of Appeal affirmed, holding the denial of the continuance was neither structural error nor a prejudicial abuse of discretion because Elena could have presented the declarants or other witnesses and the court would have reached the same result without the declarations, and that substantial evidence supported the fraud finding.

Ruling reviewedStandardThe courtThe model
Denial of Elena's request to continue the reopened trial until removal proceedings concluded after her blanket invocation of the Fifth Amendment privilege
“On this record, we cannot conclude that the trial court's refusal to continue the trial based on Elena's blanket invocation of the Fifth Amendment privilege amounted to reversible error.”
abuse of discretioncorrectagree with court
The court correctly applied Forthmann and Freeman: continuances are discretionary and reversal requires denial of a fair hearing or prejudice. Elena made only a blanket invocation without the particularized showing Fuller and Evidence Code section 404 require, and the reopening was limited to rehabilitating her credibility, which she could have done through the declarants or other witnesses. The structural-error claim under Carlsson fails because she was not barred from presenting evidence. The opinion does not, however, engage with the accommodation line of authority (e.g., Pacers) on balancing a civil litigant's Fifth Amendment dilemma, though the open-ended duration of immigration proceedings makes the result defensible.
Family court's reference to Elena's witness declarations in its intended decision after stating it would not consider declarations, and its cure by reopening evidence
“Elena has not demonstrated prejudice as the family court stated it would have come to the same conclusion based on the testimony of the three trial witnesses even if the declarations had been excluded.”
unclearharmless erroragree with court
The appellate court did not expressly label the inconsistent treatment of the declarations as error but treated it as non-prejudicial because the trial court stated on the record it would have found Elena not credible based on live testimony alone and offered to reopen the evidence to allow rehabilitation. Given the trial court's express finding and its remedial offer, the no-prejudice conclusion is supported by the record quoted in the opinion.
Judgment of nullity on the ground that Elena's consent to marry was obtained by fraud going to the essence of the marriage (Fam. Code, § 2210, subd. (d))
“Although not challenged by Elena, the evidence presented at trial supported the family court's finding that Elena entered into the marriage with no intention of performing her marital duties.”
substantial evidencecorrectagree with court
Although Elena did not challenge sufficiency, the court confirmed the finding is supported by Oksana's testimony that Elena did not want sex with Matthew and married him because Russia was dangerous, and by the trial court's credibility findings. Millar and Liu establish that a concealed intention not to engage in sexual relations is fraud going to the essence of marriage under Marshall. The analysis is consistent with the cited authorities.

Authorities

  • relied: Forthmann v. Boyer (2002) 97 Cal.App.4th 977 — Grant or denial of a continuance rests in the trial court's discretion; the complaining party bears the burden of showing abuse from the record.
  • relied: In re Enrique G. (2006) 140 Cal.App.4th 676 — Structural error requires reversal without regard to the strength of the evidence.
  • relied: In re Marriage of Carlsson (2008) 163 Cal.App.4th 281 — Denial of a party's right to present testimony and evidence is structural error requiring automatic reversal.
  • relied: Fuller v. Superior Court (2001) 87 Cal.App.4th 299 — A party may not decide for herself whether the privilege against self-incrimination applies; the court must conduct a particularized inquiry as to each area of questioning.
  • relied: People v. Seijas (2005) 36 Cal.4th 291 — Once the claimant carries the burden of showing the evidence is incriminating, the privilege must be sustained unless it clearly appears the evidence cannot possibly tend to incriminate.
  • relied: People v. Cleveland (2004) 32 Cal.4th 704 — Redirect examination may be used to explain or rebut adverse inferences and rehabilitate a witness's credibility.
  • relied: Freeman v. Sullivant (2011) 192 Cal.App.4th 523 — Denial of a continuance is reversible only when it results in denial of a fair hearing or otherwise prejudices a party.
  • relied: Marshall v. Marshall (1931) 212 Cal. 736 — Fraud sufficient to annul a marriage must go to the very essence of the marriage relation.
  • relied: Millar v. Millar (1917) 175 Cal. 797 — A spouse's concealed determination at the time of marriage not to engage in sexual intercourse supports annulment for fraud.
  • relied: In re Marriage of Liu (1987) 197 Cal.App.3d 143 — Marriage entered to obtain immigration benefits with a concealed intention not to engage in sexual relations is fraud supporting a nullity judgment.
  • relied: Maness v. Meyers (1975) 419 U.S. 449 — The Fifth Amendment guarantees a person may not be compelled to testify or give evidence against herself.
  • missed: Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686 — When a civil litigant faces potential criminal exposure, the trial court should seek to accommodate the Fifth Amendment privilege, such as by staying proceedings, rather than forcing a choice between the privilege and the ability to litigate the civil case.

The appellate opinion: sound with gaps — The opinion answers Elena's structural-error and continuance arguments with the correct standards from Forthmann, Freeman, Carlsson and Fuller, and the record quoted supports the conclusions that her Fifth Amendment invocation was unparticularized, that she retained the ability to present other witnesses, and that no prejudice resulted. It does not, however, address the California accommodation authority on civil litigants facing criminal exposure (Pacers) or expressly characterize the trial court's inconsistent handling of the declarations, leaving those points implicit.

How this analysis was made · dispute it

Opinion

Filed 1/9/14 Marriage of Banhagel and Sheveleva 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

In re Marriage of MATTHEW K. BANHAGEL and ELENA SHEVELEVA. D061873 MATTHEW K. BANHAGEL, Respondent, (Super. Ct. No. DN163215)

v.

ELENA SHEVELEVA,

Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Patti C. Ratekin, Commissioner. Affirmed.

Stephen Temko and Dennis Temko for Appellant.

Law Office of James D. Scott, James D. Scott and Andrew J. Botros for Respondent. Elena Sheveleva appeals from a judgment annulling her marriage to Matthew Banhagel. She asserts the judgment is reversible per se because she was denied her constitutional right to a fair trial. We reject her assertions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Elena does not challenge the sufficiency of the evidence supporting the family court's decision and, while the parties disagree on the facts surrounding the breakdown of their marriage, they are well aware of the facts of this dispute. Accordingly, we merely summarize some of the facts to provide background for our later discussions.

Matthew met Elena on an international dating Web site in May 2008. Elena was from Russia. She has an adult son and a nine-year-old daughter with her ex-husband.

Elena spoke only a bit of English and the couple communicated by e-mail using a translation program. In August 2008, Matthew visited Russia to meet Elena in person.

The couple had sex for the first time. In June 2009, the couple agreed to marry.

A few weeks before the wedding, Matthew experienced gaps in communication with Elena where she did not e-mail him or answer the telephone. During this time, Matthew noticed that Elena remained active with other users on the dating Web site.

When Matthew questioned Elena's sincerity, Elena convinced him that she was marrying him for "nothing other than love and devotion." The couple married at the end of June 2009 in Russia, but the couple did not have sex on their wedding night. In early June 2010, Elena arrived in the United States. After Elena came to America, Matthew claimed they had sex twice and that Elena displayed no affection and became very frivolous with 2 money. In contrast, Elena claimed that she wanted to have sex with Matthew, but that cats in the bed created problems with their sex life.

In July 2010, the couple's communication broke down and Matthew began to suspect that he might be a victim of fraud. In November 2010, Matthew filed for a nullity of marriage, alternatively for dissolution of marriage. Before trial, Elena submitted nine declarations. One declaration was from her daughter's teacher, the other declarations were from people Elena knew in Russia that were translated into English.

When trial commenced, the family court stated it would not consider any declarations and would only consider the testimony of the witnesses at trial. Matthew and Elena testified at trial. The only other witness was Oksana Voazzo, a Russian woman who also met her husband on a dating Web site. Oksana became friends with Elena and claimed that they "became pretty close."

The family court ordered the marriage annulled after concluding that Elena committed fraud by entering into the marriage with no intention of performing her marital duties. In its written intended decision, the court referenced the witness declarations tendered by Elena. When Elena's counsel objected to these references, the court replied that it did not recall its prior ruling and considered the declarations for "credibility and . . . impeachment" and not for the truth of the matter asserted.

The court concluded that Elena was not credible, stating it would have come to this conclusion based on the testimony of the three trial witnesses even if the declarations had been excluded. The court then ruled that its statements would constitute a statement of decision.

3 At a later hearing, the family court indicated that it had reviewed the earlier transcripts and realized it previously stated that the declarations would not be considered.

The court stated: "So the only way that I feel is appropriate to handle it is to allow them to reopen as to the issue what was brought up, what I considered out of the declarations."

Elena's counsel then asked: "So we're talking about [Elena's] testimony and whatever evidence is, I guess, corresponding to that?" The court responded that it did not have a copy of its decision, but wanted everyone to feel that they have been treated fairly.

The continued trial was ultimately set for hearing. At that time, Elena invoked the Fifth Amendment privilege against self-incrimination and requested a continuance until immigration proceedings against her were concluded. Although the court believed that the individuals who had written the declarations would testify, Elena had no witnesses to present. The court denied the request for a continuance based on the concern that the immigration case could take years to finish. The family court explained that after it discovered the mistake regarding the declarations:

"I didn't think it was fair to her that she didn't have an opportunity to present evidence to overcome using those declarations, even though I told counsel that without them I could have come to the same decision. There were enough contradictions without using those declarations in her testimony alone as compared to—just within her testimony she was like 180 degrees difference on a lot of different really important issues. . . . But I still wanted to give her the benefit of having the opportunity to call witnesses if she thought that it could overcome something. We're here today for trial."

The court entered a judgment that incorporated its intended decision. Elena timely appealed.

4 DISCUSSION

In general, a trial court has discretion to grant or deny a continuance with the burden resting on the complaining party to demonstrate from the record that an abuse has occurred. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.) Nonetheless, when a trial court's error amounts to structural error, reversal is required without regard to the strength of the evidence or other circumstances. (In re Enrique G. (2006) 140 Cal.App.4th 676, 685.) Structural errors requiring automatic reversal include violating a party's right to present testimony and evidence. (Marriage of Carlsson (2008) 163 Cal.App.4th 281, 290-291.)

Elena contends the family court committed reversible error when it failed to continue the trial until the removal proceedings against her had concluded because she was deprived of the right to present evidence after she properly invoked her Fifth Amendment privilege against self-incrimination. We disagree.

The Fifth Amendment to the United States Constitution guarantees that a person may not be compelled to testify or give evidence against herself. (Maness v. Meyers (1975) 419 U.S. 449, 461.) A witness may properly invoke the Fifth Amendment privilege if the witness "reasonably apprehends a risk of self-incrimination, . . . though no criminal charges are pending against [the witness], . . . and even if the risk of prosecution is remote." (Wehling v. Columbia Broadcasting System (5th Cir. 1979) 608 F.2d 1084, 1087, fn. 5.) "However, a party is not entitled to decide for himself or herself whether the privilege against self-incrimination may be invoked. ' "Rather, this question is for the court to decide after conducting 'a particularized inquiry, deciding, in connection with 5 each specific area that the questioning party seeks to explore, whether or not the privilege is well founded.' " ' " (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305, italics omitted.) The person claiming the privilege has the burden of showing that the proffered evidence is incriminating. (Evid. Code, § 404.) If the objecting party carries his or her burden, then the judge must sustain the claim of privilege unless it clearly appears that the proffered evidence cannot possibly have a tendency to incriminate the person.

(People v. Seijas (2005) 36 Cal.4th 291, 304-305.)

On this record, we cannot conclude that the trial court's refusal to continue the trial based on Elena's blanket invocation of the Fifth Amendment privilege amounted to reversible error. The trial court considered the declarations solely for impeachment and determining Elena's credibility. Accordingly, the purpose of reopening the evidence was to allow examination of the witnesses that provided the declarations or redirect examination of Elena to explain or rebut inferences based on the family court's consideration of the declarations and thereby rehabilitate Elena's credibility. (See People v. Cleveland (2004) 32 Cal.4th 704, 746.)

At the continued trial, Elena did not bring the declarants; rather, she sought to testify to rebut evidence or inferences from the declarations. Elena, however, failed to explain how any testimony she might offer to rebut the declarations tended to incriminate her. Thus, it is impossible to determine whether her invocation of the Fifth Amendment privilege was well founded. Assuming, without deciding, that Elena properly invoked the Fifth Amendment privilege, we cannot conclude that the trial court's failure to continue the trial amounted to a denial of due process because Elena was not denied the 6 right to present evidence. She could have presented the declarants or other witnesses at the hearing.

Under the lesser abuse of discretion standard, "an abuse of discretion results in reversible error only when the denial of a continuance results in the denial of a fair hearing, or otherwise prejudices a party." (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.) Elena has not demonstrated prejudice as the family court stated it would have come to the same conclusion based on the testimony of the three trial witnesses even if the declarations had been excluded. Although not challenged by Elena, the evidence presented at trial supported the family court's finding that Elena entered into the marriage with no intention of performing her marital duties.

A marriage may be adjudicated a nullity if, at the time of the marriage, "[t]he consent of either party was obtained by fraud." (Fam. Code, § 2210, subd. (d).) The showing of fraud necessary to warrant nullification must be of a type that " 'goes to the very essence of the marriage relation.' " (Marshall v. Marshall (1931) 212 Cal. 736, 739.) The secret determination to refuse to engage in sexual intercourse is sufficient to support an annulment. (Millar v. Millar (1917) 175 Cal. 797, 800-801 [wife concealed from husband at time of marriage that she did not intend to have sexual relations with him]; In re Marriage of Liu (1987) 197 Cal.App.3d 143, 156 [wife married husband in Taiwan to acquire a green card, and concealed intention not to engage in sexual relations].)

7 Here, as noted by the family court, Elena and Matthew presented conflicting evidence on this issue. However, the family court found the testimony of the remaining witness, Oksana, to be "the most powerful." Oksana testified that when she and Elena were alone, Elena would "often" talk about Matthew. Elena told Oksana that she did not want to have sex with Matthew because "he was not adequate for her." Elena also told Oskana a number of times that she married Matthew because it was "very dangerous to remain in Russia." The family court found Oksana to be a credible witness who had no motive to lie. Additionally, as to Elena's own testimony, the family court stated "[s]he was all over the place on almost every issue. She couldn't keep a story straight."

In summary, we find no error in the family court's refusal to continue the trial.

DISPOSITION

The judgment is affirmed. Respondent is entitled to his costs on appeal.

MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

Cites, in this corpus