This is one of those “truth is stranger than fiction” stories. In Sun v. Riley, 2019 Va. Cir. LEXIS 1180 (Virginia – Fairfax County Cir. Ct., Dec. 30, 2019), Circuit Judge David A. Oblon denied a petition by Renee Sun to annul her marriage to Joseph Michael Riley, either on the ground that it was not consummated or that Riley had defrauded her by not disclosing an intention to transition to female gender. The judge pointed out that Sun could alternatively seek a divorce.
Sun and Riley married on November 19, 2017. On March 29, 2019, Riley “underwent a surgical procedure consistent with a male to female gender reassignment,” wrote Judge Oblon. “Sun testified she learned of this, not from Riley, but from medical records she found in their bedroom. To the contrary, Riley testified he discussed it with Sun before the procedure. Sun testified he only told her he was obtaining a vasectomy, and not a bilateral orchiectomy.”
(Translation: A vasectomy is a procedure to block the route by which sperm generated by the testicles can be ejaculated through the penis, and is one method of birth control. A bilateral orchiectomy is a procedure by which the testicles are removed and may be a prelude to further procedures of penectomy and construction of a vagina.)
Obviously, there is a story behind this, much contested by the parties to this case. “Prior to the marriage,” relates Judge Oblon, “Riley was ‘unsure of [his] gender,” according to his testimony. “He engaged in hormone testing and took female hormones on May 16, 2018, roughly si months before marriage.” He testified that he had told Sun about this “in passing,” by saying that “he was a girl and like to ‘dress up,’” and he claimed that Sun was “supportive.” In her testimony, she recalled Riley “joking” about being a girl and liking to dress up, and she admitted he mentioned having taken hormones but explained that it was to treat “in-grown hair” and assured her that it would not turn him female, because “a doctor oversaw the treatment and the dosage was low.” Sun testified that she did not know Riley was transitioning to become female, they had no discussions about gender reassignment, and she thought their mutual intention was to have children. Riley claimed in his testimony that they discussed the fact that he did not want to have children.
“They never engaged in coitus once married,” wrote Oblon. Riley claimed he had approached Sun twice to engage in sex, but she “rebuffed him” and he “did not wish to force her,” so he desisted and their marriage did not include sex. “He denied being impotent before marriage, and on either of his two post-marriage attempts at coitus.” Sun claimed not to recall these incidents, but testified that she never approached Riley about having sex. “She did not testify that she ever asked him for coitus or even asked why they remained celibate.” This situation continued from November 19, 2017 until after Riley’s surgical procedure on March 29, 2019, after which Sun’s discovery of the medical records and subsequent questioning of Riley led her to file her petition for annulment.
“When a marriage is annulled,” wrote the judge, “the law treats the marriage as a nullity. It never happened because it was either void ab initio (such as in the case of bigamy) or it is voidable (such as in the case of marriage to one lacking capacity to consent). “The biggest effect is that annulments are divorced from the benefits of Virginia’s equitable distribution and spousal support laws,” as a result of which “parties seeking annulment must be held to their high evidentiary burdens” – in this case, the petitioner must meet a “clear and convincing evidence standard.” By contrast, Virginia, like all other states, now has a no-fault divorce regime, and divorce is the alternative to annulment for terminating a marriage. But Sun did not file for divorce, seeking instead to have the marriage declared to have never been validly formed.
She advanced two grounds. First, she pointed out, they never had sex, so the marriage had not been “consummated.” Judge Oblon rejected this ground, pointing out that the statute governing annulment – Va. Code. Sec. 20-89.1 – lists grounds for annulment, but lack of sexual consummation is not among them. “Noticeably absent is ‘coitus,’ ‘sexual intercourse,’ or any synonymous term,” he wrote, pointing out as well that “coitus is nowhere included in the solemnization procedures” of the marriage law, and the word “consummated” as used in the law does not refer to sexual intercourse.
However, a marriage that was induced by fraud could be a ground for annulment under Va. Code Ann. Sec. 20-89.1(A). The party charging fraud must prove by clear and convincing evidence “(1) a false representation, (2) of a material fact, (3) made intentionally an knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.” The court noted a prior Virginia case in which an annulment had been granted on fraud grounds, explaining: “The court did not hold that consummation was itself a condition precedent to a valid marriage. Rather, it held that the fraud was misleading a person to marry with the intent to deny marital relations, not the lack of marital relations by itself.”
Weighing the credibility of testimony by Sun and by Riley, the court concluded that Riley was more believable than Sun on key points. “In the present case,” he wrote, “Riley testified he entered the marriage with the intent to consummate it. He claimed he tried twice with the ability to perform, was twice rebuffed, and that he never tried again. The Court believed his testimony.”
Sun claimed not to recall these advances, but did not deny that Riley tried to get her to have sex. “Tellingly,” wrote Oblon, “she admitted she never approached him for marital relations despite her stated goal of having children. She did not even testify that she ever initiated a conversation about why they would not have sex. This is very different from the language she used in her Petition. There, she wrote, ‘the parties have not engaged in any sexual relations or sexual contact due to his vehemently refusing to do so.’ The Court finds as fact her ore tenus testimony to be more credible than her Petition and concludes that Riley did not ‘vehemently’ refuse sexual relations; rather, he tried and was rebuffed, and it was Sun who did not want these relations.” Thus, Sun did not show by clear and convincing evidence that Riley defrauded her.
The court rejected Sun’s alternative argument that Riley’s failure to disclose before they got married any intention on his part to transition was itself fraud per se. She claimed she believed she was marry a man who wanted to be a man and have children with her, not a person in the process of becoming a woman, and pointed to various events, including her claim that Riley concealed from the steps undertaken towards transition by misrepresenting the procedure he was getting as a vasectomy. In response, “Riley implicitly argued that it is not as simple as Sun argues. He testified he never wanted to be transgender, he wanted to have marital relations with Sun, and his feelings changed over time despite his wishes.”
Neither party presented expert witnesses, leaving the Court to try to figure out what was going on in this case. In the absence of expert testimony, the court resorted to “burdens of proof and weight of evidence under the lens of its own understanding and of common sense. So viewed, Sun has not proved by clear and convincing evidence that Riley defrauded her into marrying him.” While Oblon conceded that Sun’s feeling of being defrauded was understandable, “she did not prove it.” And Oblon embraced the view that “people are not static; they change over time – some in ways more dramatic than others.”
“Must a person ‘unsure of his gender’ before marriage, who now believes he was ‘not supposed to be male,’ have told this to a future spouse to avoid defrauding the spouse?” he asked. “the Court can conceived of circumstances where failure to so inform – or to affirmatively hide these feelings – could amount to fraud in the inducement. However, on the present record, the Court finds Sun failed to prove by clear and convincing evidence that, at the time of her marriage, Riley defrauded her by knowing he did not wish to engage in and perpetuate a marriage between a man and a woman with her. The Court believed Riley that he entered the marriage believing he would be in a lifelong relationship with Sun. It belived him that he tried to have marital relations with her. It believed him that he was unsure of his own sexuality, but that he wanted to be married to Sun as a male.”
In effect, the court seems to have believed that Riley, not having accepted that he was transgender and not wanting to be transgendered, intended to marry Sun and live in a man-and-woman marriage. It didn’t work out that way, but she did not prove that he intended to defraud her by marrying, and the statute places the burden of proof on the party seeking the annulment. Furthermore, the court seems to fault Sun, stating: “Counterfactually, the evidence showed that Sun knew – pre-marriage – that he joked about being a girl and dressing up. She knew he had taken female hormones. She rebuffed his sexual advances and did not make advances of her own or question him as to their celibate status. If one were to apply an ex post analysis to this case, one could make a case that Sun should have known Riley was on a trajectory toward becoming a female someday.” So much for the fraud argument. . . .
Thus the Petition for annulment was denied. The opinion as reported by LEXIS indicated that some text was “redacted by the court.” The opinion lists Danielle A. Quinn of Dycio & Biggs, PC, Fairfax, as counsel for Sun. Riley represented himself.