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Tshiani v. Tshiani

Court of Appeals of Maryland

December 19, 2013

NOEL TSHIANI
v.
MARIE-LOUISE TSHIANI

Circuit Court for Montgomery County Case No. 75765-FL.

Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Raker, Irma S. (Retired, Specially Assigned), JJ.

OPINION

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 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 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]

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]

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 of the Congolese marriage before addressing the question of comity.

I.

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 ...


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