Tshiani v. Tshiani

HARRELL, J. A character portrayed by the actress Julia Roberts observed, “Happiness isn’t happiness without a violin-playing goat.” 1 If that be so, the live goat included as part of the dowry at a traditional marriage ceremony on 23 December 1993 in Kinshasa, Zaire, 2 marking Marie-Louise Ntumba’s union with Noel Tshiani, was no Vivaldi. 3 Some fifteen years later, capped by an altercation in which Noel leveled allegedly a threat at Marie-Louise involving an AK-47 automatic rifle, the couple’s relationship ended in a bitter divorce in Maryland, as this case reveals. The parties chose to make the circumstances and significance of the Kinshasa ceremony the centerpiece of the present dispute. We piece together from the transcripts of trial testimony (primarily from Marie-Louise’s testimony) and the findings of fact in the Memorandum Opinion by the hearing judge in the Circuit Court for Montgomery County, the following. On 23 December 1993, Marie-Louise Ntumba, with her family, attended the ceremony in Kinshasa.

They were joined ²⁵⁹ by members of the Tshiani family, all participants and attendees being of the Luba tribe. 4 Noel, however, was not present physically in Kinshasa, but participated in the ceremony by telephone from another country. 5 During the ceremony, Noel was asked three questions, 6 each of which he answered in the affirmative: “Do you know this girl? Do you like this girl? Do you want us to give the dowery [sic] and the gift to this family so that you, this person can be your husband or wife?” Noel was said to be represented physically at the wedding site by his cousin. In addition to a live goat, the dowry provided by the Kinshasa Tshianis to the Ntumbas included $200 U.S. in local currency, clothes, and food. 7 Following the ceremony, the two families celebrated for eight or so hours.

After the celebration, Marie-Louise spent the night in Kinshasa at the home of a relative of Noel’s, who was assisting with her travel paperwork. She traveled a few days later to Virginia, United States, where she commenced to reside with Noel. Noel and Marie-Louise lived together for almost fifteen years following the ceremony in Kinshasa. After residing for some time at an apartment in Arlington, Virginia, the couple ²⁶⁰ moved to Maryland where they resided, first in Bethesda and later in Potomac, until their separation. 8 During the marriage, Marie-Louise gave birth to three boys, whom the couple raised together.

Through his employment at the World Bank, Noel obtained health insurance and other spousal benefits for Marie-Louise. She also worked, mostly part-time, at daycare centers and schools for young children. As the marriage deteriorated eventually, Marie-Louise moved out of the marital home with the three children and obtained protective orders against Noel based on allegations of spousal abuse. In the divorce in 2011, the Circuit Court’s judgment ordered Noel to pay Marie-Louise a $543,000.00 monetary award, $23,493.75 in attorneys’ fees, indefinite alimony, child support for the parties’ three children, and 50% of the marital portion of the pension and separation grant he may receive eventually from his employer.

PERTINENT PROCEEDINGS BELOW On 6 February 2009, Marie-Louise filed a Complaint for Absolute Divorce Or, In The Alternative, Limited Divorce in the Circuit Court for Montgomery County. Her complaint alleged that the she and Noel were married in a religious ceremony in Arlington, Virginia, on 16 April 1994. Marie-Louise filed, on 26 March 2010, an Amended Complaint for Absolute Divorce Or, In The Alternative, Limited Divorce in which she replaced her prior allegation of the Virginia wedding with an allegation that the parties were married on 23 December 1993 “in a Civil Ceremony in Kinshasa, Democratic Republic of the Congo.” 9 ²⁶¹ A merits trial was held in the Circuit Court on 25-26 October 2010. At trial, Noel contested the divorce on the premise that he and Marie-Louise were never married legally.

Following the trial, the Circuit Court issued a Memorandum Opinion in which it found that “it is undisputed that [Noel] was not physically present at the wedding ceremony,” but “a valid marriage existed between the parties and took place on” 23 December 1993. The Circuit Court accepted Marie-Louise’s testimony that Noel was not in the Congo at the time, but participated in the ceremony by telephone. On 7 January 2011, a Judgment of Absolute Divorce was issued in Marie-Louise’s favor, as noted above. Noel noted timely an appeal to the Court of Special Appeals.

The intermediate appellate court, in a reported opinion, affirmed the Circuit Court’s judgment that the parties’ marriage in the Congo was valid, concluding that the marriage, where one party participated only via telephone, was not repugnant to the public policy of this State and should be recognized under comity principles as valid in Maryland. Tshiani v. Tshiani, 208 Md.App. 43 , 56 A.3d 311 (2012). On 22 March 2013, this Court granted Noel’s timely Petition for a Writ of Certiorari to consider the following questions: Does Maryland recognize under the principles of comity foreign wedding ceremonies where the groom participated only by telephone? Does Maryland require the physical presence of both parties at a wedding ceremony in order for the marriage to be valid? [ 10 ] ²⁶² As discussed in further detail below, we answer the first question in the affirmative and, on that basis alone, we shall affirm the judgment of the Court of Special Appeals.

Because the facts of this case do not suggest that the wedding ceremony at issue involved a marriage that took place in this State, we need not address Noel’s second question. STANDARD OF REVIEW On appellate review of an action tried without a jury, we “review the case on both the law and the evidence,” and we “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Maryland Rule 8 — 131(c). The questions of whether a valid marriage occurred, and whether Maryland should recognize such a marriage under the doctrine of comity are legal questions, and this Court reviews all questions of law without deference to the decisions of the courts below. Khalifa v. Shannon, 404 Md. 107, 115 , 945 A.2d 1244, 1248 (2008).

ANALYSIS The Court of Special Appeals took correctly a two-step approach in analyzing whether Maryland should recognize, under the doctrine of comity, the Congolese marriage of the Tshianis, for the purposes of granting a domestic divorce. The intermediate appellate court determined first that Marie-Louise proved adequately to the Circuit Court that a valid marriage took place in the Congo, and then determined that Maryland courts should recognize the marriage under the principles of comity. Accordingly, we shall address likewise the arguments of the parties concerning proof of the validity ²⁶³ of the Congolese marriage before addressing the question of comity. /. A. Noel poses two primary arguments in support of the contended invalidity of the Congolese marriage ceremony.

First, he argues that, where the parties fail to give notice of intent to rely on foreign law, pursuant to Maryland Code (2013 Repl.Vol.), Courts and Judicial Proceedings Article, § 10-504 (as was the case here), it is presumed that the relevant law in the foreign jurisdiction is the same as Maryland law. 11 The Court of Special Appeals observed that Noel did not preserve this argument for appellate review because he failed to raise it in the trial court. Tshiani, 208 Md.App. at 51 n. 6, 56 A.3d at 316 n. 6 (citing Zellinger v. CRC Dev. Corp., 281 Md. 614 , 380 A.2d 1064 (1977)). Although noting the intermediate appellate court’s conclusion in his brief here, Noel offers to us no argument and cites no authorities to demonstrate that the conclusion was errant.

In the absence of some showing of error, we will not afford Noel a second bite at the proverbial apple regarding the absence of any notice of intent to rely on foreign statutory or common law. B. Second, Noel argues that “the trial court was not in a position to come to any conclusion regarding the validity of the foreign marriage.” In support of this contention, Noel asserts that (1) the Court of Special Appeals applied improperly our opinions in Redgrave v. Redgrave, 38 Md. 93 (1873), and Brell v. Brell, 143 Md. 443 , 122 A. 635 (1923), in upholding the trial court’s finding of a valid marriage, (2) there was insufficient ²⁶⁴ evidence to support the trial court’s finding that a valid marriage occurred in the Congo, and (3) the trial court erred when it “permitted Marie-Louise, over objection, to testify regarding traditional marriage, yet [it] sustained an objection to Noel describing the essentials of such marriage.” We consider those contentions, and Marie-Louise’s counter-arguments, in turn. 1. The parties disagree over the proper application of Redgrave . Noel contends that, under Redgrave , Marie-Louise failed to meet her burden of proving a valid Congolese marriage because she failed to adduce evidence, other than her own testimony, that the “traditional marriage” between her and Noel was recognized as valid under Congolese law.

Noel grounds his argument on the following excerpt from Redgrave : [H]aving assumed to prove that a valid marriage was celebrated on the particular occasion testified to by this witness, herself being a party to the transaction, it was incumbent upon him to show affirmatively that such marriage was in all respects in conformity to law; and, failing in this, he cannot be permitted to rely upon other facts and circumstances of the case as the ground of a presumption that a marriage may have taken place between the parties on some other and different occasion from that spoken of by the witness. 38 Md. at 98-99 . Marie-Louise ripostes that Noel misreads Redgrave , which stands actually for the proposition that, where there is any competent evidence that a marriage occurred, the law presumes that the marriage was binding legally. She relies on the following other passage from Redgrave : [T]he presumption is, that the marriage was duly and legally contracted according to the law of the place or country in which it occurred; and, when contracted in a foreign state or country, the validity of such marriage is recognized here, although it may not have been attended ²⁶⁵ with the same formal ceremonies as are required for the celebration of a valid marriage by the law of this State. 38 Md. at 98 . Superficially, the two passages from Redgrave appear to be at odds.

On a closer reading of the opinion, however, it is revealed that, in context, the passage highlighted by Noel does not apply here. Redgrave involved a dispute between a decedent’s widow and decedent’s father over the decedent’s estate. The father alleged that the widow’s marriage to the deceased was invalid because, at the time of the marriage, the deceased was married already to another woman. Redgrave, 38 Md. at 94 .

The widow’s testimony was not considered because she was deemed incompetent as a witness, pursuant to a statute in force at that time regarding testimony of parties to a contract in disputes with estate administrators. Redgrave, 38 Md. at 96 . The Court did consider, however, the testimony of other witnesses indicating that a marriage ceremony occurred in a particular place, and that the parties moved later to another state, where they cohabitated, had children, held themselves out to be husband and wife, and were recognized as such by family members and others in their community. Id.

We concluded in Redgrave that the legality of a marriage is presumed “[w]here [the] parties live[d] together ostensibly as husband and wife, demean[ed] themselves towards each other as such, and [we]re received into society and treated by their friends and relations as having and being entitled to that status.” 38 Md. at 97 . 12 The Court of Special Appeals relied on this presumption in the present case. Tshiani, 208 Md.App. at 52 , 56 A.3d at 317 . The passage from Redgrave , sheared from its mooring by Noel, referring to affirmative proof “that such marriage was in all respects in conformity to law,” is offered bereft of context. In the flow of the opinion where it appears, we were reflecting ²⁶⁶ on the decedent’s father’s attempt to rely solely on the testimony of a woman, who claimed that the deceased married her previously, whose reputation for bad character other witnesses attested to and whose testimony was contradicted by other evidence in the case.

Redgrave, 38 Md. at 98-99 . We refused to rely on her testimony, not merely because she was the sole witness of, and a party to, the marriage she alleged, but because her testimony was “discredited by the other facts and circumstances of the case” such that the contradictions were “too plain to escape observation.” Redgrave, 38 Md. at 99 . The Court of Special Appeals did not err in its application of Redgrave . Marie-Louise’s competence as a witness is not questioned on this record, nor, as the next section of our opinion reveals, is it plain that her testimony was contradicted sufficiently by other facts or circumstances in the case.

Thus, the passage in which Noel finds succor is inapplicable here. Similarly, we are not persuaded by Noel’s argument that the intermediate appellate court erred in applying Brell . Noel argues that, because we were not asked to consider the facts surrounding the parties’ wedding ceremony in Brell , that case is not applicable here. Noel’s argument is misguided.

Although Brell was not a case that turned on comity principles, and therefore did not concern whether the parties’ marriage was one that would be recognized in Maryland, we concluded there that the wife’s testimony that they were married in Germany, coupled with evidence of the parties later holding themselves out as husband and wife in the United States, was sufficient evidence of a legal marriage. 143 Md. at 448 , 122 A. at 636 . That conclusion is relevant to the determination in this case as to the adequacy of the proof of a valid marriage between Marie-Louise and Noel, and therefore the Court of Special Appeals did not err in relying on Brell . 2. The evidentiary sufficiency challenge mounted by Noel concerns what type and quantum of evidence is necessary to raise the presumption of a legal marriage under Redgrave . Although the Court has not forged a bright-line rule in our prior ²⁶⁷ cases, we created general guidelines by which the sufficiency of evidence regarding the presumption of a legal marriage may be assessed.

In Redgrave , we noted that “the most usual way of proving marriage ... is by general reputation, cohabitation, and acknowledgement.” 38 Md. at 97 . Similarly, in Barnum v. Barnum, 42 Md. 251 (1875), we stated that marriage may be proved “by reputation, declarations and conduct of the parties.” 42 Md. at 297 . We concluded in Barnum that reputation evidence “must be founded on general, not divided or singular opinion,” and that “the value of [declarations of the parties] as evidence will always depend upon the circumstances of the case.” 42 Md. at 297-98 . We elaborated later regarding Redgrave and Barnum .

In Richardson v. Smith, 80 Md. 89 , 30 A. 568 (1894), decided when Maryland law still required a religious ceremony, we discussed the reasons why reputation, cohabitation, and acknowledgement may be sufficient to trigger a presumption of lawful marriage, even where more direct evidence may be lacking: In this state there cannot be a valid marriage without a religious ceremony, but a marriage may be competently proved without the testimony of witnesses who were at the ceremony. It would work very cruel injustices in many instances if the law were otherwise. The witnesses might be dead, and competent written evidence might be unattainable. It would not follow that the union between the parties would be considered illicit and the children illegitimate.

The law has wisely provided that marriage may be proved by general reputation, cohabitation, and acknowledgement. When these exist, it will be inferred that a religious ceremony has taken place, and this proof will not be invalidated because evidence cannot be obtained of the time, place, and manner of the celebration of the marriage. 80 Md. at 93 , 30 A. at 569 . Elsewhere, we stated that cohabitation of the parties alone is insufficient to raise a presumption of marriage, where the relationship was “illicit in its commencement,” but that marriage could be presumed where the parties have a child, cohabitate together, hold ²⁶⁸ themselves out as husband and wife, are treated as married in their community, and the woman takes the name of the man. Jones v. Jones, 45 Md. 144, 155-56 (1876), overruled on other grounds by Kasten v. Kasten, 159 Md. 329 , 150 A. 854 (1930).

In this case, there was no reputation evidence, but there were declarations by Marie-Louise regarding the ceremony that took place in the Congo (then Zaire) in 1993 and the parties’ relationship thereafter, as well as corroborative evidence concerning the conduct of the parties (including cohabitation, having children), and acknowledgement evidence. Regarding the Congolese ceremony, as noted previously, Marie-Louise testified that on 23 December 1993 she attended the ceremony in Kinshasa, along with members of her family and Noel’s family. Noel, participating by telephone, confirmed that he wanted to be married to Marie-Louise and approved the delivery of a dowry to Marie-Louise’s family, consisting of cash, clothes, food, and a live goat. She further testified that the families celebrated for several hours, and that she stayed then with a member of Noel’s family, who facilitated her travel a few days later to join Noel in Virginia.

Additionally, Marie-Louise maintained that the traditional ceremony she took part in was recognized as a marriage in the Congo, and that it did not deviate substantively from other traditional marriages she had attended there previously. Marie-Louise also testified that during the following month, January 1994, she and Noel went to the Embassy of Zaire in Washington, D.C., to obtain official recognition of their Kinshasa marriage. They participated later in an additional religious (Roman Catholic) wedding ceremony in Virginia. The trial court admitted into evidence a