In re Kidane

• Decision Date: 13 January 2017
• Docket Number: No. 114,986,114,986
• Citation: 389 P.3d 212,53 Kan.App.2d 341
• Parties: In the MATTER OF the MARRIAGE OF Addis KIDANE, Appellant, and Helen ARAYA, Appellee.
• Court: Kansas Court of Appeals

53 Kan.App.2d 341

389 P.3d 212

In the MATTER OF the MARRIAGE OF Addis KIDANE, Appellant, and Helen ARAYA, Appellee.

No. 114,986

Court of Appeals of Kansas.

Opinion filed January 13, 2017

Rachelle Worrall, of Prairie Village, for appellant.

Courtney J. Whiteley, of Whiteley Law Office, of Overland Park, for appellee.

Before Standridge, P.J., Arnold–Burger and Bruns, JJ.

Arnold–Burger, J.

K.S.A. 2015 Supp. 23–2702(b) allows a court to grant an annulment for any "reason justifying recission of a contract of marriage." After finding that Addis Kidane and Helen Araya entered into a marriage for the purposes of immigration fraud, the district court granted Araya's request for an annulment. Kidane appealed, arguing that the district court's finding of fraud was not supported by substantial competent evidence. Kidane also argues that annulment, an equitable remedy, is improper where the requesting party had unclean hands. Because we find that the facts support the district court's conclusion that this was a marriage entered into for the purpose of immigration fraud and because we find, as a matter of first impression, that such marriages are voidable under Kansas law, we affirm the district court's decision. Moreover, we find that the clean hands doctrine does not apply in this case.

FACTUAL AND PROCEDURAL HISTORY

On March 5, 2015, Araya filed a complaint in Clark County, Nevada, requesting an annulment from Kidane. In the complaint, Araya said that she met Kidane shortly after his arrival in the United States in 2012 and they "agreed that they would live together as husband and wife, build a life together in the U.S., as [Kidane] professed love to [Araya] many times throughout the courtship, and was overly kind and attentive to her young daughter from a previous relationship." But, Araya said that once they were married Kidane "told [Araya] he did not need her anymore because he had his ‘green card’." The Nevada court dismissed this complaint on the basis of inconvenient forum. On March 6, 2015, Kidane filed for divorce in Johnson County on the basis of incompatibility. Araya responded with a counter-petition for annulment. In this petition Araya stated the basis for annulment was that Kidane was married to someone else at the time he married Araya, making their marriage void.

The case proceeded to bench trial. Much of the testimony conflicted. Kidane said that he came to the United States from Ethiopia in 2012 to look for his ex-girlfriend, Yodit Tesfaye. Tesfaye testified that Kidane was her husband and that they had a traditional Ethiopian wedding in 2011. Photos from the alleged marriage depict Kidane wearing a tuxedo and Tesfaye wearing a wedding dress, with rings on their left ring fingers. Tesfaye also testified, however, that prior to her Ethiopian marriage to Kidane, she was married to James Nujong in the United States. She said that when she married Kidane, she was separated from Nujong (although not divorced). She thought it was okay in Ethiopia to get married to a new person while still married to a former partner and that no paperwork was necessary for divorce or marriage. Kidane described the event differently. He testified that he had never been married before marrying Araya. Kidane called the event with Tesfaye "a celebration of a marriage agreement." Kidane acknowledged that there was a priest at the occasion, but that the priest's role was only to bless the food and people at the celebration. Kidane said that the rings on his and Tesfaye's left ring fingers were engagement rings. When asked why they did not get married when they had a celebration, Kidane responded, "[Tesfaye] told me our family are getting older and weak, we have to do the celebration, but we're going to get married when we get to America."

After the ceremony, Tesfaye moved to the United States and Kidane remained in Ethiopia to work on a house owned by Tesfaye. Tesfaye sent Kidane money every month to support him. Eventually, Tesfaye paid for Kidane to come to the United States. When Kidane arrived in the United States, he says that Tesfaye was at the airport with her husband, Nujong, and that Tesfaye told Kidane, "I'm sorry, I'm already married. From now on we cannot live together." Tesfaye testified that she intended to marry Kidane when he arrived in the United States and after Tesfaye finalized her divorce from Nujong. But, she says that this plan failed because Kidane "disappeared" soon upon arriving in the United States.

Tesfaye introduced Kidane to Araya in October 2012. Kidane testified that when he first arrived in the United States, he lived in a house with Tesfaye, Nujong, Araya, and Araya's daughter. However, Tesfaye testified that Kidane lived with her when he first arrived in the United States, but that Nujong, Araya, and Araya's daughter did not live with her. Araya also testified that she did not live with Tesfaye when Kidane arrived in October 2012.

Kidane and Araya married in Las Vegas in January 2013. Kidane testified that he married Araya "[b]ecause [he] loved her." Araya said that they did not go to Las Vegas to get married, only "to have fun." Araya said that while she and Kidane were in Las Vegas, Kidane asked Araya to marry him and she "was drunk and then [she] just did it." When asked what the purpose was in her marriage to Kidane, Araya testified that Kidane asked her to help him with his green card. Prior to the marriage, Araya and Kidane consulted with an immigration attorney.

Araya testified that she did not reside with Kidane before or after their Las Vegas marriage. Araya acknowledges that she signed two leases with Kidane, but says she never actually resided with him. Araya also testified that her daughter had only ever lived with Araya. Kidane testified that he and Araya rented property and lived together for 2 1/2 years. Kidane said that Araya's daughter slept at Tesfaye and Nujong's house or that she lived with Araya at Araya's work (Araya was taking care of an elderly woman at the time). Kidane did not know Araya's daughter's full name, only her first name, and he also did not know where Araya's daughter went to school.

A few months after marrying Araya, Kidane returned to Ethiopia so that he could give Tesfaye her house. He was gone for 5 months. Araya testified that at some point, it is not clear when, Kidane told Araya that he was already married to Tesfaye. Araya filed for annulment in March 2015. When asked why she did not just get a divorce, Araya said "[b]ecause it's not right what I am doing.... And I know this is illegal, so I just want to—I just want to decide to annul this marriage." Araya was also asked why, in her petition for annulment in Nevada, she said that Kidane professed his love to her and was attentive to her daughter when she was now testifying to a different story. Araya replied, "Because I realize that what I'm doing is wrong, because I never have relationship with [Kidane] and that I never have—I never consummated this marriage with [Kidane]. As what I'm doing is wrong. I just want to done this, the anul [sic ] and then finish."

After listening to the testimony, the court granted Araya's request for an annulment. The court stated:

"Well, at this point the Court is going to grant the annulment because I think both parties have participated in fraud on this Court; in fact, it's a felony. What you did was a felony. You allowed what is clearly a fraud on the U.S. Government in order for him to obtain a green card.

"I don't find that the parties—that Mr. Kidane was married to [Tesfaye]. She clearly is married to someone else, so he couldn't—I don't care what the cultural claims are here. He couldn't have married her.

"But what's clear to me is that there's so many problems in this case with credibility; I don't believe either party, frankly. I don't believe that—we had people here who were going through a marriage and then we have claims by Ms. Araya that she never lived or consummated the marriage, never lived with him. He's claimed that he loved her, but then we have professions of love for a marriage that, apparently, didn't exist under U.S. law.

"So far as I'm concerned, nothing was legal from day one in this case. So the annulment is granted, but it's granted with the reluctance of the Court. I think both parties come to this court with unclean hands."

Kidane appealed.

ANALYSIS

Kidane makes two arguments that the trial court erred in granting Araya an annulment. First, he argues that the district court's finding of fraud was not supported by substantial competent evidence. He states that Araya "requested the annulment and therefore had the burden of establishing that the marriage was void or induced by fraud, which required clear and convincing evidence." Second, he argues that annulment is an improper remedy when the requesting party has unclean hands.

K.S.A. 2015 Supp. 23–2702 establishes grounds for annulment. It states:

"(a) The district court shall grant a decree of annulment of any marriage for either of the following grounds: (1) The marriage is void for any reason; or (2) the contract of marriage is voidable because it was induced by fraud.

"(b) The district court may grant a decree of annulment of any marriage if the contract of marriage was induced by mistake of fact, lack of knowledge of a material fact or any other reason justifying recission of a contract of marriage." K.S.A. 2015 Supp. 23–2702.

"Annulment is a judicial determination to set aside a marriage which was invalid at its inception because of some defect existing at the time of the marriage." 1 Elrod, Kansas Law & Practice: Kansas Family Law § 9:48 (2015–16 ed.) (citing In re Estate of Crump , 161 Kan. 154, 159, 166 P.2d 684 [1946] ). On the other hand, a divorce dissolves a lawfully established marriage. 161 Kan. at 159–60, 166 P.2d 684. As noted in K.S.A. 2015 Supp. 23–2702, grounds for annulment exist when a marriage is void or voidable. A void marriage is "[a] marriage that is invalid from its inception, that...