DocketNumber: No. 24
Citation Numbers: 436 Md. 255, 81 A.3d 414
Judges: Harrell
Filed Date: 12/19/2013
Status: Precedential
Modified Date: 9/8/2022
A character portrayed by the actress Julia Roberts observed, “Happiness isn’t happiness without a violin-playing goat.”
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
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
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.”
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 ]
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
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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.
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
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.
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
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
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
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 certificate issued by the Virginia church confirming the ceremony in Virginia (not a wedding license). A document from the Embassy of the Congo was admitted, for the purpose of explaining the absence of a marriage license from the Kinshasa ceremony. That document stated that the Embassy provided previously documentation confirming the Kinshasa marriage, but no longer had the base records due to a flood at the Embassy. Additional evidence from the World Bank, Noel’s employer, includ
Additional testimony confirms that the couple lived together first in Virginia, and later in two different homes in Maryland, one of which was titled in Noel and Marie-Louise’s names as “tenants by the entireties,”
Noel did not attempt to refute the cohabitation and acknowledgement evidence. He testified, however, that he did not take part in a ceremony in the Congo on 23 December 1993, by telephone or otherwise, and had no knowledge of any such ceremony. He testified also that he was never married legally to Marie-Louise. He explained his general and specific references to her as his wife on the basis that, in Congolese culture, people do that out of respect when a man and woman cohabitate and have children together. Unfortunately for Noel, the trial court found expressly that, as a general matter regarding his credibility at trial, Noel was “a liar and a manipulator,” and that his testimony lacked credibility. The credibility of witnesses is a determination left to the trier of fact, and, on appellate review of a bench trial, we “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Hill v. State, 231 Md. 458, 462, 190 A.2d 795, 797 (1963); Md. Rule 8-131(c). Thus, we will not disturb the trial court’s election, as the fact-finder in this case, to disregard Noel’s testimony that was contrary to the testimony of Marie-Louise.
Furthermore, we reject Noel’s ancillary argument that the evidence produced by Marie-Louise was insufficient because she pleaded in her first Amended Complaint that a “civil ceremony” occurred in Kinshasa, but testified at trial that it was a “traditional marriage.” The primary purpose behind our pleading standards is notice, Ledvinka v. Ledvinka, 154 Md.App. 420, 429, 840 A.2d 173, 178 (2003), and there need only be substantial agreement between what is pleaded and what is proved. Duck v. Quality Custom Homes, Inc., 242 Md. 609, 613, 220 A.2d 143, 145 (1966). Marie-Louise’s Amended Complaint put Noel on notice that she intended to prove that the parties were married legally in the Congo, and the difference in terminology between Marie-Louise’s Amended Complaint and her testimony at trial is not the type of material variance between pleading and proof that would cause Noel to be surprised unfairly or otherwise prejudiced in trying this case.
Noel next argues that the trial court was “clearly erroneous” in allowing Marie-Louise to testify, over objection, regarding the “traditional marriage” in the Congo and sustaining subsequently an objection to Noel’s efforts to offer his “take” on the same subject during his direct examination. The record does not support remotely Noel’s assertions.
First, to contend that Marie-Louise was permitted to testify “over objection” about the factual circumstances of the traditional marriage is specious. The only objection during Marie-Louise’s testimony, regarding the traditional marriage, occurred in the following colloquy during direct-examination by her counsel:
Q And is this, the marriage that you have just described, is this the tradition of the Luba tribe?
A Yes.
Q Is this type of marriage recognized in Congo?
A Yes.
[Noel’s Trial Counsel][14 ]: Objection.
The Court: I’ll hear you.
[Noel’s Trial Counsel]: When she said “type,” I’m not certain what the types are that we’re referring to at this point.
The Court: Would you repeat your question, please?
[Marie-Louise’s Counsel]: Sure. Is this type of traditional marriage recognized in Congo[?]
The Court: Okay. Overruled.
[Marie-Louise’s Counsel]: You can answer.
A Yes.
The apparent basis for the objection is that the question was vague as to the “type” of marriage Marie-Louise’s counsel was referring to initially. The trial judge overruled the objection only after counsel rephrased her question to specify
Second, we find no merit in Noel’s assertion that he was “prejudiced by not being permitted to testify” regarding his knowledge or impressions of traditional marriages in the Congo. Noel’s only attempt to testify about his understanding of what constitutes a traditional marriage in the Congo occurred during direct examination by his trial counsel:
Q Now, Mr. Tshiani, going back to the Congo ceremony, did you know that a ceremony was taking place on December 23,1993?
A No, I was very surprised to hear that on December 23rd, first of all, that’s not how things happen in the Congo. I would like to describe how marriage, a traditional marriage is done.
[Marie-Louise’s Counsel]: Objection.
The Court: Sustained.
Following the sustained objection, Noel’s trial counsel diverted immediately to a different line of questioning, never to return to the subject of Noel’s knowledge of, or views regarding, traditional Congolese marriages. In Maryland, litigants are permitted in civil actions to make general objections, without stating specific grounds, unless the court requests them. Md. Rule 2-517. The trial judge had available several grounds upon which to sustain the general objection by Marie-Louise’s counsel. For example, Noel’s announced desire to describe his understanding of traditional Congolese marriages was not responsive to the pending question asked by his counsel, and no foundation was laid to demonstrate Noel’s personal knowledge of traditional Congolese marriages. Where Noel’s trial counsel did not make other efforts to solicit relevant testimony on that subject, Noel was not “prejudiced” by the trial judge’s ruling.
Marie-Louise proved that a valid marriage occurred in the Congo on 23 December 1993. We next consider whether that type of marriage, i.e. a marriage where the groom is not present physically, but participates by telephone, is one Maryland should recognize under the common law doctrine of comity.
Where a valid foreign marriage occurred in another state or country, Maryland will recognize it as binding legally even if it would not have been binding legally if formed in Maryland. Henderson v. Henderson, 199 Md. 449, 458, 87 A.2d 403, 408 (1952). In the context of a marriage, we recognize two exceptions to the general rule of comity: (1) the type or circumstances of the marriage must not be prohibited expressly by Maryland’s Legislature, and (2) the marriage cannot be repugnant to Maryland public policy. Port v. Cowan, 426 Md. 435, 444-45, 44 A.3d 970, 976 (2012) (citations omitted). Noel concedes that the “telephone marriage” at issue here is not prohibited expressly by the General Assembly. The only question before us then is whether such a marriage is repugnant to the public policy of this State.
We discussed recently the issue of repugnancy regarding recognition of a certain type of foreign marriage in Port v. Cowan. In that case, we recognized a same-sex marriage, performed validly under the laws of another state, for the purposes of granting a domestic divorce in Maryland at a time before Maryland recognized as legal such marriages entered in this State. In conducting a comity analysis, we could not “conclude logically that valid out-of-state same-sex marriages are ‘repugnant’ to Maryland public policy.” Port v. Cowan, 426 Md. at 450-51, 44 A.3d at 980. Because the question in Port v. Cowan is analogous to the one here, and thus the same comity analysis applies, we need only briefly reiterate the pertinent legal principles discussed in that opinion. First, Maryland recognizes liberally marriages formed validly in foreign jurisdictions. 426 Md. at 445, 44 A.3d at 976. Second, although the issue of public policy is admittedly “an
Noel asserts no argument sufficient to convince us that the marriage by telephone conducted in the Congo is “repugnant” to Maryland’s “public policy.” Noel dedicates much of his brief to describing why a telephone marriage would not be valid if attempted in Maryland, and alleging a parade of horribles that would follow if we were to find that a foreign telephone marriage would be recognized in this State. Whether the marriage would be valid if performed here, however, is not the question. Noel fashions his arguments to us likely because the Court of Special Appeals noted, as part of its comity analysis, that, contrary to his arguments to that court, “no law suggests that proxy or phone marriages would not be permitted when performed in Maryland.” Tshiani, 208 Md.App. at 58, 56 A.3d at 321. The Court of Special Appeals went on to discuss the issues of proxy marriages in other states and marriages accomplished by telephone, Skype, and other means. 208 Md.App. at 59-61, 56 A.3d at 321-23. We shall not weigh-in on that topic in deciding this case under a comity analysis. It is simply unnecessary to reach it. Thus, the validity of attempted telephone marriages formed in Maryland must await another day in court.
Noel’s only argument directed at the relationship between the telephone aspect of the marriage in the Congo and repugnancy to the public policy of this State is his contention that a
Although we refused to recognize a foreign divorce in Aleem v. Aleem, 404 Md. 404, 947 A.2d 489 (2008), on the ground that it was contrary to Maryland’s public policy, we did so only after concluding that the ex parte nature of the divorce — the husband went alone to the Embassy of Pakistan in Washington, D.C., after a divorce action was filed here in Maryland by the wife, where he performed talaq, a procedure under Islamic religious and secular Pakistani law in which one obtains a divorce by reciting “I divorce thee” three times — was in conflict with Maryland statutes and deprived the wife of her constitutional rights.
We are not convinced that the circumstances of the telephone marriage in the Congo exceeds the unavailing level of dissonance with Maryland public policy found lacking in Port v. Cowan or Fensterwald, or that it meets the level of dissonance identified in Aleem. Because we decide this case in Marie-Louise’s favor on comity grounds, we need not address the merits of the other arguments raised in her brief.
. The character was Anna Scott in the film Notting Hill (Universal Pictures 1999).
. Known as Zaire in 1993, the country is known presently as the Democratic Republic of the Congo.
. Antonio Vivaldi was one of the most accomplished violinists in world history. Karl Heller, Antonio Vivaldi: The Red Priest of Venice (2003).
. The Luba make up one of the three largest tribes of the Bantu peoples, the largest ethnic group in the Congo.
. Noel’s location at the time of the ceremony is unclear from the record. Marie-Louise testified that Noel was in another African country at the time on business, but did not recall the specific country. Noel testified that he was in Virginia at the time, but, as discussed in more detail below, denied any involvement in the ceremony.
. The record is unclear also as to who, specifically, asked the questions of Noel. According to Marie-Louise’s testimony, it suggests that one of the family members present at the ceremony posed them to Noel.
. Although a dowry in many cultures consists of money or valuables brought by the bride or her family to the groom or his family, scholarly research suggests that the dowry system among the Luba appears to be the opposite: when a couple marries, the groom may give gifts to the bride's family "in appreciation for all they have done in bringing her up, and in compensation for their loss of so valuable a member of their group.” See Priscilla Berry & Agnes C.L. Donohugh, A Luba Tribe in Katanga: Customs and Folklore, 5 Africa: J. of the Int’l Afr. Inst. 178 (1932).
. There was a brief period in which the couple moved to the African country of Chad for a work assignment of Noel’s.
. The record shows that Marie-Louise filed yet another complaint, titled "Amended Complaint for Absolute Divorce," on 18 October 2010 (one week before trial), in which she stated that she "re-alleges herein all of her allegations as stated in her original Complaint for Absolute Divorce” (emphasis added), and without any further reference to the Congolese ceremony alleged in her first Amended Complaint. From a
. We reverse the order of the questions presented in Noel's brief to this Court. We note also that the questions were phrased somewhat differently in Noel’s Petition for Writ of Certiorari, where they were posed as follows:
Did the Circuit Court and Court of Special Appeals err in recognizing the parties' marriage in Kinshasa, Democratic Republic of the Congo under the principle of comity where Petitioner was not physically*262 present at the wedding ceremony and stated over the telephone that he knew and liked the bride and agreed to exchanging gifts?
Is the physical presence of both parties required at a wedding ceremony in order for the marriage to be recognized as valid in Maryland?
. In Noel’s grand strategy, this foundational argument is a spring board to a contention that, because Maryland requires both parties to be present physically at a ceremony in Maryland for a valid marriage to exist, the Congolese ceremony was defective.
. We reaffirmed later the presumption of marriage announced in Redgrave. O’Leary v. Lawrence, 138 Md. 147, 152, 113 A. 638, 640 (1921); Richardson v. Smith, 80 Md. 89, 93, 30 A. 568, 569 (1894).
. Titling real property as “tenants by the entireties” in Maryland is reserved for married couples.
. Noel’s counsel before us was different than his trial counsel.
. Marie-Louise also argued that this Court should conclude, in the alternative, there was sufficient evidence to hold that the Tshianis