On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1967-01.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2006
Before Judges Parrillo, Holston, Jr. and Gilroy.
Plaintiff, George Attor, appeals the April 2, 2004 Family Part order granting him and defendant, Lucy Attor, a dual judgment of divorce and dismissing his claim for an annulment. In doing so, the judge credited defendant's testimony as to the validity of the parties' marriage, even though during defendant's testimony the judge suggested and then allowed defendant to assert her Fifth Amendment privilege against self incrimination, thereby permitting her to avoid meaningful cross-examination by plaintiff on the subject of the validity of the marriage.
We hold that the judge erred in permitting defendant to assert her Fifth Amendment privilege against self incrimination, because her testimony was also being given in support of her counterclaim for divorce. Defendant, by testifying, waived any protection afforded by the privilege. Additionally, defendant failed to show that she faced potential criminal prosecution based on her testimony. Accordingly, we remand the matter for further factfinding in accordance with this opinion.
Plaintiff filed a complaint for divorce from defendant on March 7, 2001, on the ground of extreme cruelty. On June 4, 2001, defendant entered her appearance on the issues of alimony, support, division of property, counsel fees and costs. On July 31, 2001, defendant filed an answer and counterclaim requesting a divorce from plaintiff on the ground of extreme cruelty. The counterclaim additionally sought alimony, support, equitable distribution of assets and counsel fees. On July 19, 2002, plaintiff filed a motion to amend his divorce complaint to include a count for annulment.*fn1
Following an eight-day trial, the judge, on April 2, 2004, entered a thirty-six page written decision and order denying plaintiff's claim for an annulment and granting a dual judgment of divorce. The judge also awarded equitable distribution and rehabilitative alimony to defendant.*fn2
There is very little the parties agreed upon concerning the origin of their marriage. Plaintiff's version was as follows. Prior to marrying defendant, plaintiff had been married to Yvonne Livingston on September 16, 1980, and was divorced from her on August 8, 1990. Although plaintiff claims he knew defendant since 1975 when he resided in Ghana, he had not reestablished contact with defendant until 1991, after his divorce from his first wife. Plaintiff testified that he entered into a marriage ceremony with defendant in Ghana after he was informed by defendant that her first husband had died. A traditional tribal marriage ceremony with defendant's family was performed.
The ceremony was then registered at the government registry on October 1, 1991, in Ghana's capital city of Accra. Shortly after the marriage ceremony, Plaintiff returned to the United States with the intention of bringing defendant, along with her daughter, Heartwill, and son, Franklin, to the United States.
Plaintiff was informed by an immigration attorney in the United States that the October 1, 1991 registration of the traditional tribal ceremony did not constitute a legal marriage. Upon this advice, plaintiff returned to Ghana and entered into another marriage ceremony with defendant on October 1, 1994. Based upon the second marriage ceremony, defendant and her two children were permitted to emigrate from Ghana to the United States in 1995. The U.S. immigration process involved an interview with the Consular Officer of the United States in Accra, during which defendant presented various documentation including a death certificate for a person she represented as being her former husband, Emmanuel Mensah, and school documents for her children.
Plaintiff further testified that after their separation in 2000 and during the period in which the divorce proceedings were pending, he learned that the death certificate presented by defendant during the immigration process was not genuine, and that her prior husband with a surname of Sosu is still alive and residing in Europe. As a result, plaintiff filed the motion to amend his complaint to include a count for annulment.
Defendant's account differed greatly. Defendant's version was as follows. Prior to her marriage to plaintiff, defendant had been married to Isaac Sosu in 1980 in a customary tribal marriage, and they were divorced in a customary tribal divorce in February 1983. She had one daughter with Sosu named Heartwill, and she believes Sosu currently resides in Switzerland. Defendant further testified that she and plaintiff were married in a customary tribal ceremony in July 1988 in Ghana. Plaintiff returned to the United States three weeks after their marriage, and plaintiff rented a home for her in Ghana while he remained in the United States. Defendant testified that they were married again in a formal civil ceremony on October 1, 1991, and when planning to emigrate from Ghana to the United States, plaintiff's brother, Mensah Attor, changed her daughter's last name to Mensah. Defendant also testified that it was plaintiff who gave her a false death certificate bearing the name Emmanuel Mensah, for the purpose of claiming that Franklin, plaintiff's nephew, was defendant's son so that she could bring him into the United States. Defendant further testified that it was plaintiff who prepared her for the interview with immigration officials.
On April 16, 2003, defendant was called as a witness by plaintiff's counsel to give testimony on plaintiff's claim for annulment. The judge interrupted defendant's direct examination in order to instruct defendant's counsel to explain to defendant her Fifth Amendment rights. The judge stated, "Do you want to advise her as to her rights under the Fifth Amendment, et cetera?" This exchange took place after defendant began to testify as to her representations to U.S. Embassy officials in Ghana on her visa application regarding the children.
Plaintiff's counsel asked defendant: "When you appeared at the American Embassy, did you provide false statements to the consular officer in your interview?" Immediately following this question, defendant's counsel replied to the judge:
Your honor, before we proceed with regard to counsel's line of questioning just prior to the break, it is my intent to advise my client not to answer any more questions with regard to her application or George Attor's application as the spouse for her to come to this country and the information that was put on the application. Okay? On the grounds that it may incriminate her in some criminal charge.
Amid the judge's effort to translate Fifth Amendment rights to defendant, plaintiff's counsel interjected, Your honor, I'm raising my objection to counsel's assertion of the Fifth Amendment for his client to preclude her from testifying to questions and answers she provided to the consular officer at the American embassy because it's my belief that she has waived any Fifth Amendment protection by her answering questions in that area.
Plaintiff's counsel's next question to defendant was, "Ms. Attor, so you know who an Emmanuel Mensah is? Emmanuel Mensah?" Defendant's only reply was that she wasn't going to answer. Counsel explained to the judge that he was asking about Emmanuel Mensah because he "is the individual that, on the death certificate his name appears as -- that's because supposedly [defendant] is a widow, [of] the person who died on the death certificate." A series of related questions followed, all of which defendant declined to answer, asserting the Fifth Amendment.
The ability to fully examine the defendant was particularly important in this case given that within the judge's thirty-six page written opinion denying plaintiff's request for an annulment and granting divorce, the judge found that the plaintiff provided no evidence to support his claim that the defendant fraudulently induced him to marry her. The judge decided credibility in favor of defendant, accepting as true defendant's untested version that plaintiff created a false death certificate for a fictional husband named Emmanuel Mensah so that she could immigrate to the United States.
In denying plaintiff's claim for an annulment, the judge concluded that plaintiff had failed to carry his burden of establishing by clear and convincing evidence: (1) fraud in the essentials of the marriage, and (2) that he had not subsequently ratified the marriage. The judge determined that plaintiff failed to substantiate his claim that defendant was married and not widowed at the time she married him.
The judge directed that Ghana immigration officials review and authenticate the various documents of the parties. Plaintiff contends that a copy of the 1994 marriage certificate that he presented proved that defendant was lying in her testimony about the tribal ceremony marriage of 1988 and the formal ceremony in 1991. However, the judge received written advice from the Consular General of Ghana that the 1994 ...