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In re Marriage of Xiong

Court of Appeals of Wisconsin, District III

October 24, 2017

In re the marriage of: Seng Xiong, Petitioner-Respondent,
v.
Lang C. Vang, Respondent-Appellant.

         APPEAL from a judgment of the circuit court for Brown County No. 2014FA506 THOMAS J. WALSH, Judge. Affirmed.

          Before Stark, P.J., Hruz and Seidl, JJ.

         ¶1 STARK, P.J. Lang Vang appeals from a divorce judgment terminating his marriage to Seng Xiong. Vang argues the circuit court erred by granting a judgment of divorce because he and Xiong were never validly married. Vang alternatively argues that, even if the parties' marriage was valid, the circuit court erroneously exercised its discretion with respect to property division and maintenance.

         ¶2 We conclude that, under the facts of this case, the circuit court properly determined the parties had a legally recognizable putative marriage, pursuant to our prior decision in Xiong ex rel. Edmondson v. Xiong, 2002 WI.App. 110, 255 Wis.2d 693, 648 N.W.2d 900');">648 N.W.2d 900. We further conclude the court properly exercised its discretion in dividing the parties' property and awarding maintenance to Xiong for an indefinite duration. We therefore affirm.

         BACKGROUND

         ¶3 Xiong petitioned for divorce from Vang in May 2014. Her petition alleged the parties were married in September 1980 at Ban Vinai, a refugee camp in Thailand.[1] Vang subsequently moved to dismiss Xiong's divorce petition, contending the parties were never legally married.

         ¶4 On January 23 and July 6, 2015, the circuit court held evidentiary hearings regarding the validity of the parties' marriage. During the hearings, Xiong testified that she and Vang were married on September 24, 1980, in a wedding ceremony performed by her uncle. She testified a separate "strings ceremony" was performed three days after the wedding.[2] Xiong explained she did not want to marry Vang, but she was pressured or "forced" to do so by her family.[3]

         ¶5 A number of photographs were introduced into evidence during the July 6, 2015 hearing. Xiong testified one of those photographs-Exhibit 6-was taken in October 1980 and showed her and Vang wearing Hmong wedding clothing. Xiong testified Exhibits 7, 8, 37, 38, and 39 were photographs of the "strings ceremony" that took place three days after the wedding. Handwriting on the back of Exhibits 37, 38, and 39 indicated these photographs were taken on September 27, 1980, and depicted "Lang and Seng's wedding." Xiong identified this handwriting as Vang's. Xiong also testified that two other photographs, marked as Exhibit 40, showed her wearing wedding clothes four days after the marriage ceremony, when she and Vang went to visit her family.

         ¶6 Xiong testified she and Vang came to the United States together in 1983. Over the next five years, they had four children together. Xiong cared for the parties' children so that Vang could go to engineering school. Xiong testified she learned in 2005 that Vang had a "girlfriend, " and she and Vang stopped living together in December 2008. When asked why she waited until 2014 to file for divorce, Xiong responded, "Because at the time my kids [were] in school, in college, and I don't want this … to affect them. And then I-at the same time I was … having hope against hope that he still love us, his kids and me during that time."

         ¶7 Several of Xiong's family members corroborated her testimony that she and Vang were married in Thailand in September 1980. Xiong's uncle, Ga Cheng Xiong, testified he was the leader of the Xiong clan in the Ban Vinai refugee camp at that time and was involved in "marriage negotiations" leading up to Xiong and Vang's wedding. Ga Cheng Xiong confirmed that Xiong initially refused to marry Vang, and after two days of unsuccessful negotiations Vang approached Ga Cheng Xiong asking for help. Ga Cheng Xiong conceded that Xiong was ultimately coerced or "indirect[ly] forc[ed]" to marry Vang. He testified Vang paid four silver bars "for the dowry" and fifteen silver coins "for the fees." Ga Cheng Xiong subsequently performed a marriage ceremony between Xiong and Vang, in accordance with all Hmong marriage rituals, during which Vang agreed to be Xiong's husband. Ga Cheng Xiong confirmed that a separate "string ceremony" was performed three days later.

         ¶8 Ga Cheng Xiong's wife, Bao Vang, testified Vang and his relatives "came to [her] house and beg[ged] or ask[ed] [her] husband to go with them and to plea with [Xiong] so that maybe [Xiong] … would marry [Vang]." Bao Vang testified she cooked food for the subsequent wedding ceremony, which was performed by her husband. She heard her husband declare Vang and Xiong to be husband and wife during the ceremony.

         ¶9 Xiong's older brother, Nao Tou Xiong, testified he first met Vang when Vang approached Xiong's family seeking to marry her. Nao Tou Xiong testified the subsequent marriage negotiations lasted three days, and Xiong was ultimately forced to marry Vang. Nao Tou Xiong confirmed that Vang paid a bride price in order to marry Xiong, and a wedding ceremony was subsequently performed according to Hmong marriage traditions.

         ¶10 Nao Tou Xiong clarified that the Hmong do not have marriage certificates, and marriages are instead "recorded" in the oral tradition. He denied that "cohabitation ceremonies" are a part of traditional Hmong culture and testified there is "no acceptance for cohabitation in Hmong life, Hmong society." He further explained that sex outside of marriage is "not appropriate in the Hmong culture" and is viewed as disrespecting or dishonoring "the family, … the girl, and … the culture."

         ¶11 In addition to the testimony summarized above, Xiong introduced several documents at the evidentiary hearings that referred to Vang as her husband. For instance, Xiong introduced her United States immigration file, which included multiple documents listing Vang as her "husband" or "spouse." Xiong testified Vang filled out several of these documents. Xiong also introduced a quit claim deed, dated November 28, 2012, by which "LANG C. VANG and SENG XIONG, husband and wife, " transferred property to two of their children.

         ¶12 Vang denied during his testimony at the evidentiary hearings that he and Xiong were ever married. He testified he and Xiong met in 1980, were "friend[s], " and went on a few dates. According to Vang, the Hmong elders in the Ban Vinai refugee camp felt that Vang and Xiong's relationship was "mak[ing] them lose face, " so they forced Vang and Xiong to live together. Vang testified he did not want to live with Xiong, and she did not want to live with him. He further testified he never intended to become married to Xiong, and, to the best of his knowledge, she did not intend to become married to him.

         ¶13 Vang conceded a ceremony took place in September 1980 involving "dinners and food, " but he testified it was merely a "cohabitation" ceremony, rather than a wedding. Vang denied that any "string ceremony" was performed. He further testified he never filed for a marriage license in Thailand, Laos, or the United States.

         ¶14 Vang acknowledged that he and Xiong ultimately immigrated to the United States together and lived together until 2005. However, he asserted that, after "liv[ing] together for that long with misery life, " they mutually decided to separate. Vang testified he subsequently married his current wife, Patty Vang. He contended he never gave Xiong any reason to believe she was his legal wife because they "never married legally" and "never registered in any register office from Thailand or from the United States." Although Vang acknowledged he and Xiong had filed joint income tax returns "as husband and wife, " he asserted they had "no choice" but to do so "because there's no … statement in the filing instructions saying that if I don't have a legal marriage, I cannot file."

         ¶15 Vang also relied on the testimony of two expert witnesses in support of his position that he and Xiong were never legally married. First, Suwatchai Samakkasetkorn, a family law attorney who had practiced in Thailand since 2007, testified Vang and Xiong were considered illegal immigrants under Thai law while they resided in the Ban Vinai refugee camp.[4] Samakkasetkorn testified that, under Thai law, illegal immigrants are not permitted to "obtain and have a recognized marriage in the nation of Thailand." Samakkasetkorn further testified that, for a marriage to be considered valid under Thai law, both parties "have to go to register the marriage at the register office."

         ¶16 Vang also presented the testimony of Yang Thai Vang, a Ph.D. student at the University of Wisconsin-Madison studying cultural anthropology, with a focus on Hmong language and culture.[5] Yang Thai Vang testified he has participated in or witnessed hundreds of Hmong marriages. Contrary to Xiong's testimony, he opined that the photograph marked as Exhibit 6 did not depict traditional Hmong wedding clothing because, unlike the clothes shown in that photograph, Hmong wedding clothes must be "brand new." He further opined that Exhibits 6 and 40 did not depict a wedding consistent with Hmong marriage traditions because the marriage negotiators were not included in those photographs. Yang Thai Vang also testified that the Hmong do not recognize forced marriages.

         ¶17 After considering the evidence presented by the parties, the circuit court concluded it was "not completely clear … whether Thailand would or would not recognize" Vang and Xiong's marriage. Stated differently, the court concluded the testimony was "ambiguous, at best" as to whether Vang and Xiong were validly married under Thai law. The court therefore proceeded to consider whether the parties' relationship qualified as a putative marriage under Xiong. In that case, we explained that a putative marriage is "a marriage which has been solemnized in proper form and celebrated in good faith by one or both parties, but which, by reason of some legal infirmity, is either void or voidable." See Xiong, 255 Wis.2d 693, ¶22 (quoting Christopher L. Blakesley, The Putative Marriage Doctrine, 60 Tul. L. Rev. 1, 6 (1985)).

         ¶18 In applying this standard, the circuit court found that the "most credible evidence in this case tells me that there was a ceremony, " and that ceremony "involved wedding clothing." The court rejected Yang Thai Vang's opinion that the clothes shown in Exhibit 6 were not wedding clothes, instead finding that, "for these particular individuals, the clothing that they were [wearing] in those photographs [was] culturally significant for them." The court further found there was "a celebrant of this ceremony, " and "a marriage occurred that was appropriate to" Hmong culture.

         ¶19 The circuit court next found that, although it was undisputed Xiong did not want to marry Vang, "the most credible testimony" presented to the court indicated that Vang "did want to enter into this relationship and wanted it to be a wedding." The court found that both Vang and Xiong understood the September 24, 1980 ceremony was a marriage ceremony, and they "didn't understand that this was simply going to be a friendship." While the court acknowledged Vang's testimony that neither he nor Xiong believed they were married, it explained:

I'm satisfied that the most credible testimony that was offered here to me today … [was] that both of these parties believed they were married and they were venturing forth together on this life of matrimony; and as verification or what helped strengthen my conviction of that is all of these documents that were submitted to me, particularly the documents in [Xiong's immigration file], which were largely prepared by [Vang], indicating that the two of them were married. He was representing that they were. His testimony was that once he got to the United States, he really was unsure as to what they should do, and that's why the-the documents showed up with the two of them as married.
I, frankly, don't find that testimony to be credible whatsoever. I find that … testimony to be incredible, in that the reality is when the parties arrived here in this country, they arrived representing that they were married, they behaved as if they were married, they behaved as if they were married because they believed it. They signed real estate deeds. They signed tax returns.
I'm satisfied that they behaved in every respect like a married couple did because they believed they were married.

         ¶20 Based on these findings, the circuit court concluded the parties had a putative marriage that should be accorded recognition under Wisconsin law. The court therefore denied Vang's motion to dismiss Xiong's divorce petition.

         ¶21 The circuit court ultimately entered a judgment of divorce on June 6, 2016. As relevant to this appeal, the court equally divided the parties' divisible property. The court treated as divisible property a home that Vang purchased in 2008, following his purported marriage to Patty Vang, and awarded that home to Vang. In order to offset that award, the court assigned to Vang approximately $44, 000 in student loan debt, which Xiong had incurred during the parties' marriage by cosigning a student loan for one of their children. The court also ordered Vang to pay Xiong $2, 708.33 per month in maintenance for an indefinite duration. Vang now appeals.

         DISCUSSION

         I. Validity of the ...


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