Tshiani v. Tshiani

ZARNOCH, J. STATEMENT OF THE CASE In this case, we have been asked to invalidate an allegedly impermissible “proxy” marriage that had lasted more than eighteen years. This appeal comes to us from the Circuit Court for Montgomery County, where the circuit judge granted appellee Marie-Louise Tshiani’s (“Marie-Louise”) request for absolute divorce, alimony, property division, child support, and attorney’s fees. Appellant Noel Tshiani (“Noel”) contends that there can be no divorce and no monetary award because the parties’ marriage in the Democratic Republic of Congo is ⁴⁷ not valid under Maryland law. We reject this contention and affirm the judgment of absolute divorce.

FACTS AND LEGAL PROCEEDINGS Both parties are natives of Kinshasa, Democratic Republic of Congo (formerly Zaire). Marie-Louise and Noel met in the Congo in 1993. Marie-Louise was 18 years old and Noel was 35. According to Marie-Louise, after five months of dating, the two were married on December 23,1993 in Kinshasa.

She testified that Noel was not physically present at the wedding because “he was on assignment in [another country in] Africa and couldn’t make the trip.” Noel designated his cousin to represent him. One of the families gave the other $200 cash, clothes, and a live goat. 1 Noel participated in the ceremony over the phone. According to Marie-Louise, her family asked Noel and his family members three questions regarding whether Noel knew the bride, whether he liked her, and whether he wanted a dowry to be exchanged. 2 Noel responded in the affirmative. 3 According to Marie-Louise, “tradition requires that the wife leave[ ] with the husband’s family and then go[] to live with the husband.” After the ceremony, Marie-Louise spent the night at Noel’s cousin’s house. The next day she traveled to live with Noel in Arlington, Virginia.

Since the marriage, the couple have been living together and representing themselves as husband and wife. They first lived in an apartment in Virginia, then purchased a home in Bethesda, Maryland in January 1994. The parties bought another piece of property in Potomac, Maryland as “tenants ⁴⁸ by the entirety.” 4 The parties had three children together: P.E. was born on June 8, 1995, J.H. was born on October 29, 1997, and D.G. was born December 6,1998. On April 16, 1994, the parties participated in a “renewal of vows” ceremony at the Church of the Cathedral of Saint Thomas Moore in Arlington.

The couple obtained a “Proof of Marriage” from the Congolese Embassy and brought it to the Virginia ceremony. The church provided them with a certifícate stating that they were “united in matrimony ... in conformity with the laws of the State of Virginia and the Republic of Zaire.” The certificate also attested that “there were witnesses present at the ceremony, including one member of [Noel’s] family.” Noel applied for a “dependency allowance” for Marie-Louise with his employer (the World Bank) and attached a “Certificate of Customary Marriage from the Embassy of Zaire” or “Attestation de Mariage Coutomier ” dated January 25, 1994. He requested and received health insurance coverage for Marie-Louise and asked the World Bank to “add my wife as beneficiary” of his life insurance policy. Noel also went to the United States Immigration Service to obtain permanent resident alien status (Green Card) for Marie-Louise, asserting that she was his wife.

Since 1994, Noel has filed joint federal and state tax returns, listing Marie-Louise as his spouse. Further, during a protective order hearing, Noel referred to Marie-Louise as his wife. Although he filed an Amended Answer, when Marie-Louise first filed for absolute divorce Noel’s Answer admitted that he and Marie-Louise were married. Finally, Noel wrote in his motion to dismiss Marie-Louise’s complaint for absolute divorce, “the parties were joined in a union based on the Congolese practices ...” At the circuit court hearing, Noel equivocated when asked about almost all of the above facts.

He testified “he had no ⁴⁹ participation” in the Congolese marriage “by phone or anyway.” He claimed he was “unaware of it.” The court said that “[Noel] argued that the marriage ceremony in the Congo was something that is not recognized outside the Congo, but failed to provide support legal or otherwise for this assertion.” He also said of the Virginia marriage: it is “customary for there to be a Catholic service for people not necessarily married to live in Virginia.” The court entered a Judgment of Absolute Divorce. As to the validity of the marriage, the court found as follows: [Noel’s] actions subsequent to the ceremony in the Congo demonstrate [Noel’s] recognition that there was a lawful marriage between the parties. [Noel] took action after the marriage ceremony in the Congo to have the marriage recognized by the World Bank by requesting a ‘certificate of marriage’ from the Congolese [E]mbassy. Although that document was not produced at trial, [Marie-Louise] produced a document from the Embassy of the Democratic Republic of the Congo stating that a Certificate of Marriage was delivered to the World Bank and that due to “floods and destructive of archives,” the embassy could not provide another copy. Since 1994, [Noel] has filed a joint federal and state tax returns with [Noel] listing [Marie-Louise] as “spouse.” [Noel] had titled real property that he purchased on Raymond Lane in Potomac, Maryland as “tenants by the entirety,” which is a form of land ownership only available to married couples.

Further, during the course of another hearing wherein [Marie-Louise] obtained a Final Protective Order against him, [Noel] referred to [Marie-Louise] as his “wife.” [Noel] seeks to explain this designation by stating that “in the Congo, if you live with a woman she is called your wife and by respect I call her ‘wife.’ ” Indeed, [Noel] went to the United States Immigration Service in order to obtain a ‘green card’ for [Marie-Louise] on her status as his wife. [Noel’s] prevarication on this issue becomes clearer upon consideration of his application for spousal dependancy benefits from the World Bank, which included an “Attestation ⁵⁰ De [Mariage] Coutumier” (Certificate of Customary Marriage) dated January 25, 1994 to support [Noel’s] claim of a legal marriage. [Noel] requested and received heath insurance coverage for [Marie-Louise] from the World Bank on the basis of [Marie-Louise’s] status as his spouse. [Noel asked the World Bank to “add my wife as beneficiary” of his life insurance policy. [Noel] is a liar and a manipulator. Either he lied to the [c]ourt in his testimony regarding the existence of the marriage and his participation therein or he lied to the World Bank, the Internal Revenue Service, and the immigration authorities. In either event his testimony is not to be believed. The [c]ourt finds that a valid marriage existed between the parties and took place on December 23, 1993.

Noel timely appealed. QUESTION PRESENTED Appellant presents the following question for our review: 5 Did the Circuit Court err in recognizing the parties’ marriage in Kinshasa, Democratic Republic of Congo? For the following reasons, we affirm the Judgment of Absolute Divorce. DISCUSSION I. Standard of Review In this case, we are asked to review the circuit court’s determination that Maryland would recognize the parties’ marriage in the Democratic Republic of Congo.

This is a mixed question of law and fact. On the one hand, on the ⁵¹ question of whether there was a valid marriage based on the evidence presented, we give deference to the factual findings of the trial judge and will reverse only for clear factual error. Hoang v. Hewitt Ave. Ass., LLC, 177 Md.App. 562, 576 , 936 A.2d 915 (2007) (Citations omitted). “A factual finding is clearly erroneous if there is no competent material evidence in the record to support it.” Id.

(Citations omitted). On the other hand, whether Maryland will recognize a valid foreign marriage is a purely legal determination. A circuit court’s legal determinations are reviewed de novo. Id.

(Citations omitted).

II

The Parties’ Marriage Noel argues that Maryland should not recognize the Congolese marriage while Marie-Louise argues that we should. To determine this issue, we first decide if the marriage was valid in the Congo. If we answer yes, then we determine whether a Maryland court should recognize the marriage. A. The Validity of the Marriage Under Congolese Law Noel attests that the record contains no proof of Congolese law, 6 and as such, the trial court could not have concluded that the marriage was valid under the law of the Congo.

Instead, he contends, the absence of Congolese law demands that the court decide the validity of the marriage under Maryland law. He cites Hall v. Hall, 238 Md. 191, 195 , 208 A.2d 593 (1965) and Gebhard v. Gebhard, 253 Md. 125, 128 , ⁵² 252 A.2d 171, 173 (1969) (If the record contains no proof of the law of another jurisdiction, the law is presumed to be the same as the laws of Maryland). We disagree with Noel because proof of foreign law is not required to raise a presumption of a valid foreign marriage. When evidence suggests that the parties were lawfully married, it raises the presumption that the marriage was valid according to the law of the foreign state or country where it occurred.

Redgrave v. Redgrave, 38 Md. 93, 97 (1873). Competent evidence of a marriage includes official records of a marriage, admissions or declarations of the husband and wife, statements of witnesses to the wedding, or any other evidence that is admissible under the general rules of evidence. Wright v. State, 198 Md. 163, 168-69 , 81 A.2d 602 (1951). Indeed, “the admissions and declarations of the husband and wife have always been accepted in this State to prove their marriage.” Brell v. Brell, 143 Md. 443, 448 , 122 A. 635 (1923). “[WJhere parties live together ostensibly as man and wife, demeaning 7 themselves towards each other as such, and are received into society and treated by their friends and relations as having and being entitled to that status, the law will, in favor of morality and decency, presume that they have been legally married.” Redgrave, 38 Md. at 97 (Citations omitted).

In Brell , the Court of Appeals determined that a wife’s testimony that she and her husband were married in Germany coupled with the husband and wife living together and having a deed and a mortgage in both names was sufficient evidence to regard the two as husband and wife. Brell, 143 Md. at 448 , 122 A. 635 . In Redgrave , the Court found a marriage to be valid where witnesses testified that the parties were married ⁵³ in Wisconsin, went to Iowa for two or three years, held themselves out as husband and wife, the community recognized them as husband and wife, and they had two children together. Redgrave, 38 Md. at 96-97 .

The evidence in this case exceeds that in Brell and Redgrave . We start with the certificates of marriage. 8 Noel requested a certificate of marriage from the Congolese Embassy. The embassy provided the certificate entitled “Attestation De Mariage Coutumier” or Certificate of Customary Marriage. The certificate is dated January 25, 1994.

The couple provided this certificate to Noel’s employer (the World Bank) and to a Catholic church in Virginia when they appeared to renew their marriage vows. The Virginia church augmented the certificate with yet another certificate, this one stating that they were “united in matrimony ... in conformity with the laws of the State of Virginia and the Republic of Zaire.” The Virginia ceremony took place April 16, 1994. We next review the testimony from Marie-Louise describing the wedding. Marie-Louise recounted the wedding that occurred in the Congo in December 1994: both parties’ families were there; $200 cash, clothes, and a live goat were exchanged; Noel participated in the ceremony over the phone; ⁵⁴ Noel affirmatively responded that he knew the bride, he liked her, and he wanted the exchange of gifts so the bride could become his wife; Marie-Louise spent the night at Noel’s cousin’s house; and she traveled to live with Noel in Arlington, Virginia the next day.

We now focus on the couple’s living situation and children. Noel and Marie-Louise first lived in an apartment in Virginia, then they purchased a home in Bethesda, Maryland in January 1994. The parties also bought a piece of property in Potomac, Maryland as “tenants by the entirety.” As for children, the couple have three. As further evidence of marriage, the couple also have held themselves out to the community as husband and wife.

Noel applied for a dependency allowance for Marie-Louise with his employer. He requested and received health insurance coverage for Marie-Louise and added her to his life insurance policy. Noel went to the United States Immigration Service in order to obtain a Green Card for Marie-Louise based on her status as his wife. Since 1994, Noel has filed joint federal and state tax returns, listing Marie-Louise as his spouse.

Finally, Noel has also proclaimed several times, under oath, that he and Marie-Louise were married. For example, during a protective order hearing, Noel referred to Marie-Louise as his wife. Additionally, although he later filed an Amended Answer, Noel’s first Answer admitted that he and Marie-Louise were married. He also wrote a motion to dismiss that stated, “the parties were joined in a union based on the Congolese practices, that basically consists of an agreement between families whom make an agreement to cohabitate in their villages, however, it is not a recognized marriage outside of the Congo.” In light of all these facts, we find Marie-Louise provided a plethora of evidence to raise a presumption that the Congolese marriage was a valid marriage according to the law of the Congo.

It was incumbent on Noel to rebut the presumption, and he presented no evidence to do so. 9 ⁵⁵ B. Honoring- a Valid Foreign Proxy/Phone Marriage In deciding whether a valid foreign marriage will be acknowledged in Maryland, courts employ the doctrine of comity. Henderson v. Henderson, 199 Md. 449, 457-58 , 87 A.2d 403 (1952). Under this doctrine, Maryland “will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and respect.” Wash. Suburban Sanitary Comm’n v. CAE-Link Corp., 330 Md. 115, 140 , 622 A.2d 745 (1993) (Citations omitted).

In other words, Maryland courts will honor foreign marriages that were valid where performed, even if the marriage would not have been valid if performed in Maryland. Henderson, 199 Md. at 458 , 87 A.2d 403 . There are two exceptions to this general rule. First, the marriage must not be expressly prohibited by the General Assembly.

Second, the marriage must not be repugnant to Maryland public policy. Port v. Cowan, 426 Md. 435, 444-45 , 44 A.3d 970 (2012) (Citations omitted). Noel assumes that Maryland does not recognize proxy marriages 10 performed in this State. However, Noel’s description of the Congo marriage as a “proxy marriage” is a misnomer, since the circuit court found that Noel did participate over the phone.

Regardless, because we find that the marriage is presumed to be valid under the laws of the Congo, we do not need to determine whether Noel’s assumption about proxy marriage is correct. Instead, we will recognize a foreign marriage as long as the marriage is not prohibited by the General Assembly or repugnant to Maryland public policy. These exceptions rarely invalidate a marriage because Maryland liberally recognizes foreign marriage to promote “uniformity in the recognition of the marital status ...” Henderson, 199 Md. at 458 , 87 A.2d 403 . Regarding the statutory prohibition exception, Md.Code (1984, 2006 RepLVol.), Family Law Article (“FL”) ⁵⁶ § 2-406 describes who can perform a marriage ceremony and when the ceremony must be performed. 11 Neither this law, ⁵⁷ nor any other statute, precludes Maryland from recognizing a ceremony where one party participates by proxy—or in the manner that occurred here—and the ceremony is valid in another jurisdiction.

To preclude validity, the statute must unequivocally void such marriages. Port, 426 Md. at 447 , 44 A.3d 970 (Citations omitted). The General Assembly has not prohibited recognition of a foreign marriage such as the one that occurred here. We also find that neither proxy nor phone marriages are repugnant to Maryland public policy.

Maryland’s attitude is that marriage should not be set aside lightly. Picarella v. Picarella, 20 Md.App. 499, 504 , 316 A.2d 826 (1974) (Citations omitted). As such, several types of marriages that would not have been valid if performed in Maryland have been recognized in Maryland. Just recently, in Port , the Court of