Marblex Design Intern., Inc. v. Stevens

678 S.E.2d 276

54 Va. App. 299

MARBLEX DESIGN INTERNATIONAL, INC. and Erie Insurance Property Casualty Company v. Jill Ann STEVENS and Sebahat Cevikel.

Record No. 1545-08-4.

Court of Appeals of Virginia, Alexandria.

June 30, 2009.

Dawn Boyce (Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., on brief), Fairfax, for appellants.

Forest A. Nester (Brooke-Devlin & Nester, on brief) for appellee Jill Ann Stevens.

No brief or argument for appellee Sebahat Cevikel.

Present: HUMPHREYS, HALEY and ALSTON, JJ.

JAMES W. HALEY, JR., Judge.

The Workers' Compensation commission ("commission") awarded Jill Stevens dependent benefits as the widow of Mustal Mursaloglu. Marblex Design International, Inc. and its insurer, Erie Insurance Property Casualty Company (collectively "Marblex") maintain the commission erred because the marriage between Mursaloglu and Stevens was: 1) illegal; 2) void; and 3) "against public policy," in that it was a "sham green-card marriage."¹ We affirm the commission.

FACTS

Mursaloglu, an employee of Marblex, was injured in an industrial accident on January 18, 2006 and died as a result of those injuries on May 23, 2006.

The Clerk of the Circuit Court of the City of Virginia Beach issued a marriage license to Mursaloglu and Stevens on June 9, 2003. A marriage commissioner married the parties on June 14, 2003, and the certificate documenting that marriage was put to record in the clerk's office on June 17, 2003.

We find no need to set forth further facts, though noting that the evidence adduced could support either a conclusion that the marriage was, or was not, a "sham green-card marriage."

ANALYSIS

Was the Marriage Illegal?

Our analysis permits us to assume, without deciding, that the union documented above could be found a "sham/green card marriage."

18 U.S.C. § 371 makes it a crime to "conspire either to commit any offense against the United States, or to defraud the United States. . . ." Titled "Marriage Fraud," 8 U.S.C. § 1325(C) reads: "Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both." It is these provisions that Marblex maintains made the marriage "illegal."

However, the crime is not the marriage itself, but conspiracy to violate immigration laws. In addressing former 18 U.S.C. § 88 (revised 1948), now recodified as 18 U.S.C. § 371 and former 8 U.S.C. § 180 (the War Bride Act), likewise prohibiting sham marriages to evade immigration law, the United States Supreme Court wrote in Lutwak v. United States, 344 U.S. 604, 611, 73 S.Ct. 481, 486, 97 L.Ed. 593 (1953):

We do not believe that the validity of the marriages is material. No one is being prosecuted for an offense against the marital relation. We consider the marriage ceremonies only as a part of the conspiracy to defraud the United States. . . . [T]he ceremonies were only a step in the fraudulent scheme and actions taken by the parties to the conspiracy.

This language is of import because the federal circuit court, from which the case arose, had in part based its decision on the validity of the marriages themselves. See United States v. Lutwak, 195 F.2d 748 (7th Cir.1952). As one commentator has noted: "[t]he Court refused to decide the issue of the validity of the marriages, on which the circuit court's opinion rested . . . the Supreme Court declared the validity of the marriages to be immaterial to whether the convictions for conspiracy to defraud based on the sham marriages could be sustained." Maria Isable Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud, 5 Geo. Mason L.Rev. 699, 707 (1997).

In granting the award the deputy commissioner wrote: "No evidence before the Commission establishes that Jill Stevens has been charged with, much less convicted of, a crime pursuant to the referenced federal statutes." In affirming the full commission wrote: "Neither Stevens nor the decedent were charged under either statute."

The federal statutes do not address the question of the validity of a marriage; they only address the intent with which the parties entered the marriage, as a portion of a conspiracy. In short, no federal statute says the marriage, itself, is "illegal." It is undisputed, as noted above, that the parties obtained a marriage license, that a marriage commissioner performed the ceremony, and that the marriage was recorded in the Clerk's Office of the Circuit Court of Virginia Beach. In short the marriage was a legal marriage.

Was the Marriage Void or Voidable?

Marblex makes a similar argument that the federal statutes make the marriage void. Under the statutory interpretation principle of expressio unius est exclusio alterius, the "`mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute.'" GEICO v. Hall, 260 Va. 349, 355, 533 S.E.2d 615, 617 (2000) (quoting Turner v. Wexler, D.P.M., P.C., 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)). That principle is firmly established in our jurisprudence. See Belton v. Crudup, 273 Va. 368, 373, 641 S.E.2d 74, 77 (2007); Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000); NRV v. Virginia Dept. of Health, 51 Va.App. 514, 525, 659 S.E.2d 527, 533 (2008). Code § 20-45.1 and § 20-45.2 set forth what marriages are void in Virginia. A "sham/green card" marriage is not included.

A second principle of statutory construction is here applicable. "Interpretation of the statute by comparison to other, similar statutes supports this result . . . showing the General Assembly clearly knew how to limit a privilege . . . when it so desired." Schwartz v. Schwartz, 46 Va.App. 145 157-58, 616 S.E.2d 59, 66 (2005). See also Martin v. Howard, 273 Va. 722, 726, 643 S.E.2d 229, 231-32 (2007); Hechler Chevrolet v. General Motors Corp., 230 Va. 396, 401, 337 S.E.2d 744, 747 (1985). Succinctly stated: "The Legislature is presumed to know what it intends to do and can do." Miller v. Commonwealth, 172 Va. 639, 649, 2 S.E.2d 343, 348 (1939).

In Granados v. Windson Development Corp., 257 Va. 103, 509 S.E.2d 290 (1999), the employee had given his employer false identification documents. It was established he was an illegal alien. The Virginia Supreme Court denied Granados benefits because he was not an "employee" as defined in Code § 65.2-101 of the Virginia Workers' Compensation Act, that is, he "was not in the service of Windson under any contract of hire because, under the Immigration Reform and Control Act of 1986, an illegal alien cannot be employed lawfully in the United States." Id. at 108, 509 S.E.2d at 293. Following that decision, the legislature amended Code § 65.2-101, effective April 19, 2000,² by re-defining an employee to include "aliens and minors . . . whether lawfully or unlawfully employed. . . ."

In Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001), the Supreme Court of Virginia wrote that: "The General Assembly is presumed to be aware of the decisions of this Court when enacting legislation. Dodson v. Potomac Mack Sales & Serv., Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991)." And "[a]s a general rule, there is a presumption that a substantive change in law was intended by an amendment to an existing statute. Richmond v. Sutherland, 114 Va. 688, 693, 77 S.E. 470, 472 (1913)." Dale v. City of Newport News, 243 Va. 48, 51, 412 S.E.2d 701, 702 (1992).

Hence, it is clear the legislature was aware of the decision in Granados and specifically chose to change the law with respect to the availability of workers' compensation benefits to illegal aliens. By analogy, if the legislature had desired to deny workers' compensation dependant benefits to the purported spouse in "sham/green card" marriages, they could have done so by adding the same to the list of void marriages prohibited by Code § 20-45.1. They have not.

Moreover, there is a distinction between a void marriage and a voidable marriage.

In McConkey v. McConkey, 216 Va. 106, 215 S.E.2d 640 (1975), Clara McConkey had been divorced from Edward McConkey and awarded alimony. She thereafter married one Sykes on October 16, 1971, which terminated her alimony by statute. On November 5, 1971, she filed a bill of complaint against Sykes seeking annulment because of his fraud.³ She prevailed, and the final order recited that her marriage to Sykes was "null, void and of no effect." She then sought reinstatement of the alimony award from McConkey. In denying that request, the Supreme Court wrote: "[Wife's] marriage to Sykes was not void ab initio. There is no evidence that the marriage ceremony was invalid. The annulment was based upon fraud on the part of Sykes, so that the marriage was voidable if [wife] desired to have it annulled." Id. at 107, 215 S.E.2d at 641 (citation omitted).

In Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425, 435, 4 S.E.2d 364, 368 (1939), Martha Toler had honestly, but mistakenly, believed her husband had been killed in West Virginia, and she subsequently married Raymond Toler in Virginia. Raymond was killed in an industrial accident, and Martha sought workers' compensation benefits as a wife/dependant. The Court denied those benefits because, under Virginia law, a bigamous marriage is void ab initio. The Court quoted from Keezer on Marriage and Divorce, page 16:

"A void marriage confers no legal rights, and, when it is determined that the marriage is void, it is as if no marriage had ever been performed. . . . A voidable marriage differs from a void marriage in that it may be afterwards ratified by the parties . . . and usually is treated as a valid marriage until it is decreed void."⁴

Id. at 432, 4 S.E.2d at 367.

In Alexander v. Kuykendall, 192 Va. 8, 13, 63 S.E.2d 746, 748-49 (1951), the Court noted that: "A void marriage is a mere nullity and its validity may be impeached in any court,...