MARIA I. ALVAREZ VS. JOHN A. TORTORAÂ (FM-02-1561-12, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3379-14T4
MARIA I. ALVAREZ,
Plaintiff-Appellant,
v.
JOHN A. TORTORA,
Defendant-Respondent,
_________________________________________
Argued March 23, 2017 – Decided July 17, 2017
Before Judges Lihotz, O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen
County, Docket No. FM-02-1561-12.
Louis J. Lamatina argued the cause for
appellant.
Jenny Berse argued the cause for respondent.
PER CURIAM
Following a hearing, a Family Part court found the parties
in this matrimonial matter were not married, and entered an
order on February 10, 2015, dismissing plaintiff Maria I.
Alvarez's complaint for divorce and defendant John A. Tortora's
counterclaim for a declaration the marriage was null and void.
Plaintiff appeals from that order. We reverse the provision in
the order dismissing the complaint, and remand for further
proceedings.
I
In this action plaintiff has maintained the parties, both
American citizens, were married on April 26, 2004, in Havana,
Cuba.1 They have one child, born before the marriage. Both
parties were previously married and divorced. Before commencing
trial on the action for divorce, the court held a hearing on the
husband's claim the parties were not in fact married. The
pivotal evidence adduced at that hearing, at which only
plaintiff testified and introduced documentary evidence, was as
follows.
Plaintiff asserted she and defendant decided to get married
in the spring of 2004. They decided to get married in Cuba,
where some of her relatives resided. Plaintiff called a cousin
living in Cuba and ascertained what was needed to get married
there. In accordance with that information, both parties
brought the divorce judgments generated from their former
marriages and their birth certificates. Plaintiff's cousin also
1
The marriage certificate in fact states the marriage was on
April 27, 2004.
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made an appointment for the parties to appear before an
officiant licensed to perform marriages.
After arriving in Cuba in April 2004, plaintiff and
defendant went to a place in Havana "like [a] Town Hall," and
submitted the aforementioned documents in order to get a
marriage license. The documents were translated into Spanish by
staff at the office where marriage licenses were issued, for
which the parties paid a fee of $250 or $275.
A day or so later, the parties received their marriage
license and returned to the same location, where they were
married by an officiant in the presence of their daughter, two
witnesses, and plaintiff's cousin. The ceremony, which was
conducted in Spanish, was videotaped by one of the witnesses;
that videotape was placed in evidence and played during the
hearing.
Plaintiff testified to some of what the officiant stated
during the ceremony. First, the officiant noted the documents
the parties had submitted were complete. After the officiant
commented about the need for the parties to respect each other
and take care of their family, the parties are seen signing the
marriage certificate on the videotape. The officiant then
declared, "John and Maria having completed all the requirements
to – for matrimony, I declare you man and wife." A copy of the
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marriage certificate was placed in evidence.
Plaintiff admitted the parties did not live together during
their marriage, although they did see each other multiple times
during the week. She also acknowledged there were a number of
times during the marriage when she held herself out as single.
Specifically, she did so on domestic violence applications
against defendant, a bankruptcy petition she filed, an
application for welfare benefits, a case information statement
for child support against a former spouse, and income tax
returns.
Plaintiff claimed defendant insisted she not reveal they
were married because he wanted her to obtain benefits from the
government she could not get if married, such as food stamps.
She testified she acceded to defendant's demands because he
intimidated her.
Following the hearing, the court dismissed plaintiff's
complaint and defendant's counterclaim. The court noted the
parties failed to obtain a license from the United States
government granting them permission to get married in Cuba.
Although somewhat unclear, the court appears to have relied upon
31 C.F.R. § 515.201 and 31 C.F.R. § 515.560, which lists those
activities in which an American can engage in Cuba if he or she
obtains the appropriate license from the federal government. In
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the trial court's opinion, the parties were required to obtain a
license from the United States government to get married in
Cuba. Without citing any authority in support, the court
concluded the parties' failure to secure such license voided
their marriage.
Because pertinent to one of the issues on appeal, we
mention plaintiff engaged in discovery on the issue of alimony,
child support, and equitable distribution. The court ordered
defendant to provide plaintiff certain financial discovery,
$5000 toward the cost of retaining an expert accountant, and
$15,000 in counsel fees.
II
On appeal, plaintiff raises the following points for our
consideration:
POINT I: THE TRIAL COURT ERRED IN
DISMISSING PLAINTIFF'S COMPLAINT ON
THE GROUND THAT THE PARTIES WERE
NEVER LEGALLY MARRIED.
A. The Parties Were Validly
Married in Accordance With
Cuban Law.
B. Even If The Parties Were
Not Legally Married,
Defendant Must Be Estopped
From Disputing The Validity
Of The Marriage To
Plaintiff Based Upon The
Doctrine Of Estoppel,
Quasi-Estoppel And Unclean
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Hands.
POINT II: THE TRIAL COURT ERRED IN
IMPROPERLY APPLYING THE LAW OF THE
CASE DOCTRINE REGARDING THE PRIOR
ORDERS OF THE TRIAL COURT CONCLUDING
THAT THE PARTIES' MARRIAGE WAS
VALID.
POINT III: THE TRIAL COURT ERRED BY
FAILING TO ENFORCE ITS FIVE ORDERS
ADJUDICATING DEFENDANT IN VIOLATION
OF LITIGANT'S RIGHTS.
POINT IV: THE TRIAL COURT ERRED IN
AFFORDING DEFENDANT AFFIRMATIVE
RELIEF WHILE HE REMAINED IN
VIOLATION OF COURT ORDERS.
We initially address plaintiff's contention the court erred
when it found the parties were never legally married. At the
outset, we note our review of a Family Part court's factual
findings is limited. N.J. Div. of Youth & Family Servs. v.
M.M., 189 N.J. 261, 278-79 (2007). We must defer to the
findings of the Family Part if those findings are "supported by
adequate, substantial, and credible evidence" in the record.
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552
(2014).
However, we owe no special deference to the trial court's
"interpretation of the law and the legal consequences that flow
from established facts." Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995). A reviewing court is
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compelled to reverse if the trial court abused its discretion,
failed to consider all the controlling legal principles, or
reached a determination that "could not reasonably have been
reached on sufficient credible evidence present in the record
after considering the proofs as a whole." Heinl v. Heinl, 287
N.J. Super. 337, 345 (App. Div. 1996).
"An action for divorce is predicated on a valid marriage
. . . ." Wigder v. Wigder, 14 N.J. Misc. 880, 881 (Ch. 1936).
However, "the law of this State does not require [a] plaintiff
[in an action for divorce] to prove the validity of . . . the
parties' marriage." Raspa v. Raspa, 207 N.J. Super. 371, 377
(Ch. Div. 1985). "[O]nce plaintiff shows the parties were in
fact married, the burden of proving invalidity shifts to
defendant, and it must be met by clear and convincing evidence."
Ibid. A plaintiff can demonstrate there was a marriage by
producing the marriage certificate or a public record of the
marriage. Simmons v. Simmons, 35 N.J. Super. 575, 579 (App.
Div. 1955).
Here, a copy of the marriage certificate was admitted into
evidence. Although unnecessary to establish the parties were in
fact married once the marriage certificate was admitted,
plaintiff also produced corroborating evidence of the marriage,
specifically, the videotape of the wedding ceremony, in which
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the officiant made statements consistent with one conducting a
marriage ceremony, such as declaring at the conclusion of the
ceremony the parties were "man and wife."
At the point the marriage certificate was placed into
evidence, the burden to show the marriage was invalid shifted to
defendant. Moreover, defendant had the burden to show the
marriage was invalid according to Cuban law. "It is a general
principle of . . . interstate law, subject to but few
exceptions, that the validity of a marriage, so far as it
depends upon the preliminaries and the manner or mode of its
performance or solemnization, is to be determined by reference
to the law of the place where it was performed or solemnized."
Sturm v. Sturm, 111 N.J. Eq. 579, 582 (Ch. 1932). Defendant did
not introduce any evidence disputing the validity of the
marriage, let alone under Cuban law.
Defendant asserts the trial court correctly found the
parties violated 31 C.F.R. § 515.560 when they failed to obtain
a license from the federal government authorizing them to get
married in Cuba. He further argues the court correctly
concluded this omission voided the marriage. However, defendant
did not cite and we were unable to find any authority supporting
the premise a failure to obtain the federal government's
permission to get married in Cuba has the legal effect of
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voiding a marriage properly entered in Cuba in accordance with
Cuban law.
To be sure, if the parties violated this regulation and the
federal government chooses to prosecute them, they would be
subject to various civil and criminal penalties. See 31 C.F.R.
§ 515.701. However, none of the penalties provide a party's
marriage shall be deemed void if a party is found in violation
of 31 C.F.R. § 515.560 or any other regulation in 31 C.F.R. §
515. The prohibited acts in which the parties allegedly engaged
have no bearing on the question of whether they were legally
married under Cuban law.
Defendant asserts the court could not have considered or
placed any weight upon the marriage certificate because it did
not contain an apostille. In general, an apostille is a special
seal applied by an authority to certify a document is a true
copy of an original. Apostilles are available in countries
which are signatories to the 1961 Hague Convention Treaty
Abolishing the Requirement of Legalization of Foreign Public
Documents. See Apostilles and Notary Certifications, State of
New Jersey Department of Treasury (June 30, 2017),
http://www.state.nj.us/treasury/revenue/dcr/programs/apostilles.
shtml. However, at the time in question, Cuba was not a
signatory to this treaty. See 12: Convention of 5 October 1961
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Abolishing the Requirement of Legalisation for Foreign Public
Documents, HCCH (June 30, 2017),
https://www.hcch.net/en/instruments/conventions/status-
table/?cid=41.
Moreover, the court admitted the certificate into evidence.
In addition, N.J.R.E. 902(c) provides: "If reasonable
opportunity has been given to all parties to investigate the
authenticity and accuracy of official documents, the court may,
for good cause shown, order that they be treated as
presumptively authentic without final certification . . . ."
Here, defendant had ample time before the hearing to investigate
the authenticity of the document, but did not introduce any
evidence challenging the authenticity of the marriage
certificate.
Defendant raises other arguments. He references other
federal regulations he claims the parties violated and
maintained such violations invalidated the parties' marriage.
None of these arguments has sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). The
balance of defendant's arguments were not raised before the
trial court; accordingly, we decline to address them. Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In summary, plaintiff presented a marriage certificate
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showing the parties wed in Cuba. Although unnecessary to shift
the burden to defendant to prove the marriage was invalid,
plaintiff also presented other evidence, specifically, the
videotape, showing the parties participated in a marriage
ceremony. After the marriage certificate was introduced, the
burden shifted to defendant. However, he presented no evidence
the marriage was invalid under Cuban law – or under any law, for
that matter. In fact, he did not present any evidence during
the hearing at all. His argument the parties' alleged
violations of federal regulations invalidated their marriage was
unsupported by legal authority.
Because the court erred when it determined the marriage was
invalid, we reverse the February 10, 2015 order dismissing the
complaint, and remand this matter for disposition of plaintiff's
cause of action for divorce. While defendant's answer shall be
revived, those affirmative defenses pertaining to the question
of the validity of the parties' marriage and his counterclaim
shall not be.
Our decision obviates the necessity we address plaintiff's
remaining arguments. However, we make note of the fact
plaintiff complains the trial court failed to address five
orders compelling defendant to provide discovery, give plaintiff
$5000 toward the cost of retaining an expert accountant, and pay
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her $15,000 in attorney's fees. Presumably the court did not
address the provisions in those orders directing defendant to
provide discovery and to contribute toward the cost of
plaintiff's expert accountant because the court dismissed
plaintiff's cause of action for divorce. In any event, because
the court did not address the issues plaintiff raises in
connection with these orders, we decline do so in the first
instance. See Duddy v. Gov't Emps. Ins. Co., 421 N.J. Super.
214, 221 (App. Div. 2011). On remand, plaintiff may make the
appropriate application to enforce these orders.
Finally, we further direct that, on remand, the case be
assigned to a different judge. As the prior court may find it
difficult to ignore its earlier findings, we believe it best the
case be reconsidered by a new fact-finder.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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