02/07/2020 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON November 12, 2019 Session

CECILIA GONZALEZ v. MAURICIO GONZALEZ

Appeal from the Chancery Court for Shelby County No. CH-10-0635 Jim Kyle, Chancellor ___________________________________

No. W2018-01673-COA-R3-CV ___________________________________

This is an appeal from a final decree of divorce. Husband/Appellant argues that the trial court erred in granting a divorce and in enforcing the parties’ Marital Dissolution Agreement (“MDA”). The basis of Husband’s argument is that the parties’ marriage is void as bigamous because Wife/Appellee was married at the time the parties married. The trial court held that Wife’s Chilean marriage was void ab initio, thus rendering the parties’ marriage valid. As such, the trial court granted Wife a divorce and enforced the MDA. Husband appeals. We vacate the amount of attorney’s fees awarded to Wife under the MDA due to a lack of findings concerning the amount and reasonableness thereof. The trial court’s order is otherwise affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in Part; Affirmed in Part; and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Tiffany Taylor Bowders, and Anne B. Davis, Memphis, Tennessee, for the appellant, Mauricio Gonzalez.^[1]

Matthew R. Macaw, Memphis, Tennessee, for the appellee, Cecilia Gonzalez.

Chilean law.” The trial court allowed Ms. Gonzalez to proceed on her original complaint for divorce.

On or about August 3, 2017, the parties entered into a Marital Dissolution Agreement (“MDA”). As is relevant to this appeal, the MDA provides:

The parties affirm Wife’s need of rehabilitation so as to allow her to provide for herself without the support of Husband. In order to be rehabilitated, Wife needs to secure a four-year degree from a college or university, and Wife intends (and has already registered) to attend the University of Memphis and pursue a bachelor[’]s degree. Wife anticipates completing the course work necessary to receive said bachelor[’]s degree in four (4) years, and upon receipt of said bachelor[’]s degree, Wife will be fully rehabilitated. Accordingly, Husband shall pay to Wife as rehabilitative alimony the sum of $961.00 per month for forty-eight (48) consecutive months commencing on August 1, 2017 and ending on July 31, 2021, for a total of $46,128.00. Such payment . . . shall be made on a weekly basis in the amount of $221.77 per week.

***

Should either party incur any expense or legal fees as a result of the breach of any portion of this Marital Dissolution Agreement, whether contractual or otherwise, by the other party, the Court shall award reasonable attorney’s fees and suit expenses to the non-defaulting party.

An uncontested divorce hearing was scheduled for August 21, 2017. However, on August 17, 2017, Mr. Gonzalez advised Ms. Gonzalez that he was “disavowing the marital dissolution agreement and want[ed] to proceed to trial.” In response, on August 21, 2017, Ms. Gonzalez filed a motion to enforce the MDA. The trial court set the matter for trial on August 20, 2018.

On August 20, 2018, before the trial began, Mr. Gonzalez requested a continuance to have certain portions of the Chilean marriage statutes translated into English and presented to the trial court, discussed infra. The trial court denied this motion and proceeded to trial on the merits. By order of August 21, 2018, the trial court, inter alia: (1) granted Ms. Gonzalez’s motion to enforce the MDA; (2) affirmed its grant of Ms. Gonzalez’s Rule 60 motion, which declared the parties legally married; (3) held that the MDA was valid and enforceable; (4) awarded Ms. Gonzalez rehabilitative alimony under the MDA, but modified the start date to September 1, 2018; and (5) ordered the alimony to be paid monthly (as opposed to weekly) at a rate of $961.00. The trial court also awarded Ms. Gonzalez $7,000.00 in attorney’s fees under the MDA. Mr. Gonzalez appeals.

II. Issues

Mr. Gonzalez raises seven issues on appeal, which we restate as follows:

1. Whether the trial court erred when it denied Mr. Gonzalez’s request, on the day of the final trial, for a continuance to present a certified translation of certain Chilean statutes concerning the issues of marriage and annulment.

2. Whether the trial court erred when it concluded that Ms. Gonzalez’s Chilean marriage was null and void.

3. Whether the trial court erred when it enforced the MDA and awarded the parties a divorce on the grounds of irreconcilable differences.

4. Whether the trial court erred when it awarded Ms. Gonzalez alimony under the MDA.

5. Whether the trial court erred when it awarded Ms. Gonzalez $7,000.00 in attorney’s fees under the MDA.

In the posture of Appellee, Ms. Gonzalez raises two additional issues:

1. Whether Mr. Gonzalez waived, is estopped, or is otherwise barred from raising the issue of the validity of his marriage to Ms. Gonzalez.

2. Whether Ms. Gonzalez is entitled to an award of attorney’s fees on appeal.

III. Standard of Review

We review a non-jury case “de novo upon the record with a presumption of correctness as to the findings of fact, unless the preponderance of the evidence is otherwise.” Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000) (citing Tenn. R. App. P. 13(d)). The trial court’s conclusions of law are reviewed de novo and “are accorded no presumption of correctness.” Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

IV. Denial of Continuance

Mr. Gonzalez begins his appellate argument by stating that “[t]he ultimate issue in this case is whether the parties had a valid marriage.” As an initial matter, Ms. Gonzalez contends that Mr. Gonzalez waived any issue concerning the validity of the parties’ marriage. Specifically, she contends that, despite having four years to prepare and present proof (i.e., translated portions of Chilean marriage statutes) to the trial court, he failed to do so. In support of her waiver argument, Ms. Gonzalez cites Tennessee Rule of Appellate Procedure 36(a), which states that “Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.” Tenn. R. App. P. 36(a). Conversely, on appeal, Mr. Gonzalez argues that the trial court erred in denying him a continuance to provide necessary proof and contends that “the [trial] [c]ourt relied upon an incomplete English presentation of the law in making its ruling [in December 2014].” Neither argument is persuasive.

Concerning Rule 36(a), albeit at the eleventh hour, Mr. Gonzalez did attempt to take action, i.e. he asked for a continuance, for the purpose of providing the trial court evidence he deemed necessary to the question of the validity of the marriage. Accordingly, we cannot conclude that such issue is waived. Concerning whether the trial court erred in denying Mr. Gonzalez’s motion for continuance, we review that question under an abuse of discretion standard. Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). “The ruling on the motion will not be disturbed unless the record clearly shows abuse of discretion and prejudice to the party seeking a continuance.” Id. (citing State v. Strouth, 620 S.W.2d 467, 472, (Tenn. 1981), cert. denied, 455 U.S. 983 (1982)).

To determine whether the trial court abused its discretion in denying Mr. Gonzalez a continuance, it is helpful to review some of the procedural history of the case. We reiterate that, on September 18, 2012, Ms. Gonzalez filed a Rule 60 motion. In this motion, she argued that her marriage to Mr. Escala was void ab initio; therefore, her marriage to Mr. Gonzalez was valid. Ms. Gonzalez attached her affidavit, wherein she testified that her marriage to Mr. Escala was never valid. The affidavit provides, in pertinent part:

6. That Legal Report from Dina Rosana Valenzuela Mellado, partner with PSV Consultores and Asociados, an expert who received her law degree in 2001 and has practiced in litigation of civil and family matters in Chile since 2001, states that marriage between [Mr. Escala and Ms. Gonzalez] rendered null and void by court judgment never existed in legal terms and, therefore, the parties are reputed as if always having the single status, notwithstanding the date of declaration of such nullification. See Exhibit B;

Exhibit A to Ms. Gonzalez’s affidavit is an official translation of the Chilean court judgment, which declared that Ms. Gonzalez’s marriage to Mr. Escala was “null and void.” Exhibit B to her affidavit is the Legal Report from Ms. Mellado, which provides, in pertinent part: Further, it is worth noting that by decreeing the nullification of a legal act, it is regarded that it never lawfully came to life; i.e. it never existed. This means that the marriage between the parties rendered null and void by court judgment never existed in legal terms and, therefore, the parties are reputed as if always having the single status, notwithstanding the date of declaration of such nullification.

By restoring the status prior to the declaration of nullity of the aforementioned act the parties are regarded as though they were never married and thus they were always single.

The substance of Ms. Gonzalez’s motion was that Chilean law dictated that the Chilean marriage was void ab initio. As such, with the filing of Ms. Gonzalez’s Rule 60 motion, Mr. Gonzalez was likely on notice that Chilean law, and specifically translations thereof, could be germane to the threshold question of whether the parties’ marriage was valid.

On November 25, 2014, the trial court heard Ms. Gonzalez’s Rule 60 motion. After oral arguments, the trial court requested that each side file a memorandum concerning Chilean law so it could understand the relevant Chilean law before ruling on whether Ms. Gonzalez’s marriage to Mr. Escala was void ab initio or valid at the time of the parties’ marriage. The trial court’s mandate that the parties provide information concerning Chilean law certainly put Mr. Gonzalez on notice that Chilean law would dictate the question of the validity of the parties’ marriage.

In response to the trial court’s mandate, on December 8, 2014, Ms. Gonzalez filed a memorandum of law, in which she argued that her marriage to Mr. Escala was null and void under Chilean law because it was performed by a Civil Officer, who was without jurisdiction to perform the marriage. Ms. Gonzalez included the original Spanish and English translations of portions of the Chilean law that supported her argument, to-wit:

Governing provisions for Chilean marriages can be found in various bodies of Chilean law that are attached hereto as Exhibit I. According to Titulo III of Ley Sobre Reistro Civil of the Apendice Del Codigo Civil, Articulo 35 states as follows:

[Original Spanish]

The English translation of the above is as follows:

A Civil Officer of the district or area where either contracting party has his/her place of abode or where he/she has lived for the three months next preceding the date of the marriage has jurisdiction to solemnize the marriage.

Civil Code Appendix, Civil Registration Act, Art. 35.

Further, Articulo 1 of the Ley de Matrimonio Civil states the following:

[Original Spanish]

The English translation of the above is as follows:

A marriage that fails to be solemnized according to the provisions in this act has no civil effects. The contracting parties are free to abide or not by the requirements and formalities prescribed by their religion. However, said requirements and formalities will be disregarded when deciding on the validity of the marriage or regulating its civil effects.

Civil Code Appendix, Law of Civil Marriage, Art. 1.

Moreover, Articulo 31 of the Ley de Matrimonio Civil states that

[Original Spanish]

The English translation of the above is as follows:

Any marriage that is not solemnized by the competent Civil Officer and in the presence of such number of witnesses as required in section 16 is also null and void.

Civil Code Appendix, Law of Civil Marriage, Article 31.

Finally, Article 16 of the Ley de Matrimonio Civil states that, [Original Spanish]

The English translation is as follows, The marriage will take place before the official of the Civil Registry in the local public office or in the home of one of the parties and before two witnesses, relatives or strangers.

Civil Code Appendix, Law of Civil Marriage, Art. 16.

Relying on the foregoing Chilean statutes, Ms. Gonzalez argued that, because “neither [Ms. Gonzalez] nor Mr. Escala resided in the District of Las Condes [i.e., where the Chilean marriage ceremony was performed], the Civil Officer of said district did not have jurisdiction to conduct the ceremony.” Therefore, she argued that her marriage to Mr. Escala was null and void. Ms. Gonzalez further cited Chilean law concerning “nullities,” to-wit:

Nullities are governed by the same bodies of Chilean law as marriage. According to Article 1681 and 1682 of the Codigo Civil, De La Nulidad Y La Rescision,

[Original Spanish]

The English translation of the above is as follows:

Article 1681

An act or contract is null and void if it lacks any of the requirements prescribed by law for the value of the same act or contract, according to its kind and quality or state of the parties. The nullity can be absolute or relative.

Article 1682

The nullity produced by an object or unlawful basis, and the nullity produced by the omission of any requirements or formalities prescribed by law for the value of certain acts or contracts in consideration of the nature of them, and not the quality or state of the people who run or agree, are absolute nullities.

There are also absolute nullity of acts and contracts for absolutely incapable people.

Any other kind of defect produces relative nullity and the right to termination of the act or agreement.

Civil Code, Nullity and Rescission, Art. 1681 and 1682.

Since the marriage ceremony was conducted by an official without proper jurisdiction to conduct same, the marriage [was] null and void because it lack[ed] a lawful basis. The resulting nullity and invalidity [was] absolute, meaning same cannot be cured.

Exhibit 1 to Ms. Gonzalez’s memorandum is a certified translation of sections of Chilean marriage statutes.^[2] In addition to the above-quoted statutes, the translation contains additional sections concerning nullification of Chilean marriages, to-wit:

Civil Code

Title XX

Nullity and rescission

Section 1687. Nullity under a final court decision grants the parties the right to be restored to the same condition they should have had in the absence of the annulled act or contract, without prejudice to provisions on illegal purpose and consideration.

***

Civil Marriage Act

§ 7. Dissolution of marriage

Section 37. Marriage is dissolved:

1. By the natural death of either spouse. ^[2]. By a nullity decision issued by the competent authority.

Exhibit 2 to the memorandum is an official translation of the Chilean court judgment, which declared that Ms. Gonzalez’s marriage to Mr. Escala was “null and void.”

At this point in the proceedings, there can be no doubt that Mr. Gonzalez was aware that Chilean law was dispositive of the issue of the validity of the marriage. If he was of the opinion that Ms. Gonzalez’s citations to Chilean law, or translations thereof, were incorrect, incomplete, or otherwise flawed, at this point, it was incumbent on him to provide the trial court with countervailing evidence. This, he did not do. Rather, on December 12, 2014, Mr. Gonzalez filed his own memorandum of law. Mr. Gonzalez’s entire response to Ms. Gonzalez’s arguments concerning Chilean law was as follows:

Chilean Law In her Memorandum of Law, Mother argues that this Court should refer to the laws governing marriages in Chile to determine the validity of Mother’s marriage to Mr. Escala before determining the validity of the marriage in this case. Mother provides various translations of Chilean law and argues that, under Chilean law, any marriage that is not solemnized by the competent Civil Officer and in the presence of the required number of witnesses is null and void. However, the retroactive effect applies only to the parties to that marriage, and not to bona fide third parties such as the Father in this case. In response to Mother’s translations of Chilean law, Father has attached the U.S. Embassy certified Affidavit of Jorge Andres Olave Godoy, a lawyer in Santiago Chile, who states as follows with regard to the retroactive effect of a nullity:

1. Nullity has a retroactive effect and this means that the act, like in this case marriage, is reputed as though never existed and, therefore, it extinguishes all effects that this contract had.

2. However, it has that effect in respect of the parties, as the effect that it has on a bona fide third parties (those people who had no knowledge of the act itself or of the element that rendered it void, such as the case of Mr. Mauricio Gonzalez), marriage does have effects and to him, it is an event of gross breach of spousal duties on the part of his wife, Cecilia del Pilar Olave Retamal, as she was unable to marry him because she was married in Chile. The same happens if they had children, those children would be considered born inside wedlock.^[3]

The affidavit further states that, if Ms. Gonzalez had married in Chile in 2001, she would have committed the crime of bigamy.

(Emphasis in original).

Mr. Gonzalez did not contest this issue further, and the trial court held that on the evidence before it the Chilean marriage was void ab initio. The parties continued with the divorce proceedings for almost four more years after this ruling until the final trial on August 20, 2018. At this latest of dates, Mr. Gonzalez argued, for the first time, that the trial court should have had the benefit of the entire translated Chilean statute before deciding whether Ms. Gonzalez’s Chilean marriage was valid. Yet, even then, he did not come to the trial court with translation in hand. Rather, he requested a continuance to