Tshiani v. Tshiani

• Decision Date: 21 November 2012
• Docket Number: No. 2655,Sept. Term, 2010.,2655
• Citation: 208 Md.App. 43,56 A.3d 311
• Parties: Noel TSHIANI v. Marie–Louise TSHIANI.
• Court: Court of Special Appeals of Maryland

208 Md.App. 43

56 A.3d 311

Noel TSHIANI

v.Marie–Louise TSHIANI.

No. 2655, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Nov. 21, 2012.

Eugene L. Souder, Jr. (Wampler & Souder, LLC, on the brief) Frederick, MD, for appellant.

Judith A. Wolfer (House of Ruth, MD, Domestic Violence Legal Clinic, on the brief) Baltimore, MD, for appellee.

Panel: KRAUSER, C.J., ZARNOCH, and BERGER, JJ.

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 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 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 certificate 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 orderhearing, 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 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 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 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, 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....