# FILED

June 11, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

HOSSEIN AG

HILI, ) ) Plaintiff/Appellee, ) ) Davidson C ircuit ) No. 95D -1401 VS. ) ) Appeal N o. ) 01A01-9605- CV-00214 HAMIDEH SA

BA SAADAT

NEJADI, )

) Defenda nt/Appella

nt. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE MURIEL ROBINSON, JUDGE

For the Plaintiff/Appellee : For th e Defe ndant/Appe llant : D. Scott Parsley Peggy D. Mathes BARRETT, JOHNSTON & PARSLEY Nashville, Tennessee Nashville, Tennessee



## REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Islamic custom entitles the prospective wife to a sadaq when the prospective husband

proposes marriage. The sadaq is a postponed dowry that protects the woman in theevent of a divorce. Akileh v . Elchaha l, 666 So. 2d 246, 247 (Fla. Dist. Ct. App. 1996). -2- 

## O P I N I O N

This appeal inv olves the

validity of

an Islami c marri age. Sho rtly afte r the marriage, the husband f

iled suit in t

he Circui t Court for

Davidson

County seek

ing
adivorce or , in the

alternat ive, an a nnulment. After the wife co untercla imed for a divorce, the husband moved for asummary j udgment on his annulment claim. The trial cour

t granted t

he summar

y judgment, finding tha t the un disputed evidence demonstrated thatthe officiant was not qualifi ed to perf orm the ma

rriage underIslamic law and t

hat the off

iciant had

failed to file the m arriage license withi n the legally prescri bed time. The wif

e takes iss ue on this ap peal with the trial court’s conclusion that the marriage was void ab initio. We have determined that the tr ial court e

rred and, therefor

e, reve rse the sum

mary judgm

ent.

I.

Hossein A ghili and Hamideh Saba Saadatnejadi are Americans of Ira nian descent. Mr. Aghili is forty-one and work s as an engineer for the Tennessee Departm ent of Tran sporta tion. Ms. Saadatnejadi is twenty-six years old. Mr. Aghili and Ms. S aadatnej adi met in T ennessee when Ms. S aadatnej a d i was a student. They we

re engage d in the Isla

mic Republ ic of Ira

n on October

12, 1994.

After returningto Tennes see, Mr . Aghili n egotiated a marri age contractor sadaq with Ms. Saadatnejadi’s father in accordance with Islamic custom. 1 In this contract , Mr. Aghili agree d that Ms. Saadatnejadi’s dowry would be 1,400 Iranian gold coins and th at he woul d pay M s. Saada tne jadi 10,000

Iranian gold coins if he violated a

ny provision

of the contract. Because Islamic law permits a m an to have four wives, Mr. Aghili also agre ed that he w ould not mar ry anyone e lse if the parties e ver retur

ned to live i n Iran.2 An Islamic b lessi ng is a formalized ceremony intended to hold out a couple as being

married.

3 An imam is an Islamic religious leader, equivalent to a priest or rabbi. See In re Marriage of Dajani, 251 Cal. Rptr. 871, 871-72 (Ct. App. 1988). -3- Mr. Aghili and Ms. S aadatnej adi obtaine d a marr iage license in Rutherford County on December 9, 1994. Mr. Aghili requested Ghalam Hossein Azam Tarahian to perfor

m an Islam

ic blessing 2 for the couple. On Dec ember 17, 1994, Mr. Tarahian blessed the couple in the presence of four witnesses at the home of Ms. Saadatne

jadi’s par ents in Rutherford County. Following the ceremony, Mr. Aghili, Ms. Saa

datnejadi, and Mr. Tarahian signeda marriage certificate that was filed with the mo sque in Na shville. M r. Tarahian did not , howeve r, rec eive or sign the Tennessee marriage license. Mr. A ghili ap parently kept this doc ument because it was one

of the docu ments req

uired to be filed with the Interest S ection of the Islam ic Republi c of Iran in order to make an official record of the mar

riage in Iran.

Mr. Aghili and

Ms. Saa datnejadi couldnot begin livi ng together as husband and wife following the blessing because Islamic custom required them to first have aformal w edding rec eption. T heir formal w edding rec eption took pl ace on December

30, 19 94 an d was attended by one hun dred guests . Follow ing the receptio n, Mr. Aghili and Ms. Saadatne jadi honeymooned in Ga tli nb urg. Problems arose as soon as the parties returned to Nashville. Mr. Aghili informed Ms. Saadatne

jadi that he

would not record their mar riage lic ense unless she would agree to sign another premarital agreement and to relinquish her dowry and earlier marriag e contracts
. He also asserted that their marriage was invalid because Mr. Tarahian did not have the authority to perform the Dec em ber 17, 199 4, Islam ic blessing.

The parties sep arated on J anuary 29 , 1995. On the advice of an employee of the Rutherford County Clerk , Ms. S aadatnejadi and Mr. Tarahian later completed and filed another marriage license form. Mr. Tarahian signed the form as the off iciant but d

id not date his signatur

e or indica

te on the form that he was
an imam. 3 Apparen

tly someone

in the cle

rk’s offi ce added the date an d the designation

before f iling t he license w ith the Tennessee D epartme nt of Hea lth. Mr. Aghili did not sign this marriage license.-4- Mr. Aghili fi led suit on May 4, 1995 , seeking a divorce or an annul ment, and Ms. S aadatne

jadi counte

rclaime d for divor

ce. Mr . Aghili v oluntarily dismissed his compla

int and res ponded to Ms. Saadatne jadi’s cou nterclai m by asserting that she was attempting to obta in a divorc e through f raud and misrepre sentation. Later, Mr. Aghili moved for a summar y jud gment asse

rting thatthe marr

iage was invalid bec ause Mr. Ta rahian w as not

qualified to solemnize marriages and becaus e the mar riage lic ense ha d no t been ret urned to the Rutherford County Cler k withinthree day s followin g the Dec ember 17, 1994 ceremony . The tria

l court app arentlyagreed w ith Mr. Aghili on both gr ounds and,
on January 23, 1996, ente red an order findingthat the pa rties’ m arriage

was void ab initio and, therefor

e, that M s. Saada

tnejadi’s complaint for divorc e should be dismissed a s moot.

II.

This is a n appeal fr

om a summa

ry judgment . Acco rdingly, ou r task is to review the record to determi ne whethe r the req uirements for granting a summary j udgment h ave been met

. Payne v. Breuer , 891 S.W.2d 200, 201 (Tenn. 1994); Cowden v. Sovran Bank/Ce ntral South , 816 S.W .2d741 , 744 (Tenn. 1 991). As Tenn. R. Civ. P. 56.03 makes clear, a summary j udgment is appropriate only when there exi sts no mate

rial fac tual dispute

concerni ng the clai m or

defense asserted in the motio n, Byrd v. Hall , 847 S.W .2d 208, 21 0 (Tenn. 1993), and when t he moving party is entitled to a judgment in its favor as a matterof law. Anderson v. Standard

Register Co. , 857 S.W.2d 555, 559 (Tenn. 1993).

D ecisions to grant a summary ju dgment do not enjoy a pre sumption of correct ness on appeal

. Carvell v. Bot toms , 900 S .W.2d 23 , 26 (Tenn. 19 95). A reviewi ng court must

view all the e vidence in the light mos t favorab le to the nonmoving party, Haynes v. Hamilt on County , 883 S.W .2d 606, 61 3 (Tenn. 1994), and must draw all rea so nable inferences in the nonmoving party’s favor. Pittmanv. Upjoh n Co. , 890 S.W .2d 425, 42 8 (Tenn. 1994). A summar y judgment shouldbe affir

med only if

the undispute d facts a

nd conclusi ons reaso nably dra wn from the fact s support the

conclusion t

hat themoving part

y is entitle d to judgment4 The final order refers to Tenn. Code Ann. § 36-3-101 ( 1996), rather than Tenn. Code

Ann. § 36-3-30 1. Tenn. C ode Ann. § 36-3-101 definesthe prohi bited deg rees of relation ship betweenparties whichis not at iss ue in this case. Thus, it seems clear that the refer ence to Tenn. Code Ann. § 36-3-101 is a typographical error an d that the trial cou rt intended to base its decision on Tenn. Code Ann. § 36-3-301. -5- as a matter

of law. McCall v. Wilder , 913 S.W .2d 150, 15 3 (Tenn. 1995); Carvell v. Bottoms , 900 S.W .2d at 26.

III.

The summary judgment in this case rests on two grounds. Fi rst, th e trial
cou rt deter mined that the parties’ marriage was void ab initio because Mr. Tarahian was not

authorize d to solemniz e marri ages pursua nt to Tenn. Code Ann. § 36-3-301 (1996). 4 Second, the trial court conc luded that t he marri age was v oid because the ma rria ge license

was not f

iled withi n three da

ys followi ng the
c erem ony as requir

ed by Tenn. Code Ann. § 36-3-303 ( 1996). We have determined that Mr. Aghili wa s not entitle d to a summa ry judgment

on e ithe r ground.

A.

T HE S OLEMNIZATION OF THE M ARRIAGE

Mr. Aghili ass erts that Mr. Tarahi an is not qualified to solemnize marriages underTennessee la w. Tenn. Code Ann. § 36-3-301( a) provide s, in part , that “[ a]ll regular ministers of the gospe l of ever y denomina

tion, and Jewish rabbis, more than eighteen ( 18) years of age, having the care o f souls . . . may solemnize the rite of matrimony.” Si nce the courts look to the tenets of the particula r religion to determine whether

a partic ular pers on is a regul ar ministe r having ca

re of souls , Mr. Aghili has the burden of proving that Mr. Ta rahian ca nnot administe

r Islami c blessin gs under Is lamic law.

Mr. Tarahian testified in his deposition that he was qualified to perform Islamic blessings a

nd that he ha

d performed a number of these blessings. Mr. Aghili submitt ed two affidavi ts to contradic t Mr. T arahian’ s claims. In the fir st affidavi t, Mr. Aghili himself asserts that an Islamic “blessing is not recogni zed in the State of Tennessee as a legal marr iage.” This is, of course , a lega l conclusion-6-

thatMr. Aghili is not qualified to make. Thus, Mr. Aghili’s opinion did not meet the requirem

ents of Tenn. R . Civ. P . 56.05 a

nd should not ha

ve been con sidered. In the secon d aff

idavit, Mr. Aghili’s attorney simply attaches two letters purport ing to demonstra

te that Mr . Tara

hian was n ot recogniz ed as an im am in Nashville’s Persian community. This affidavit likewise does not satisfy the requirem ents in Tenn. R. Civ. P. 56.05. T he letters are inadm

issible hea

rsay and
co ntain opinions that

are not r

elevant toMr. Ta

rahian’s qualifica

tions to solemniz e marriages u nder Tenn. Co de Ann. § 36- 3-301.

In response t o t hese affidavits, Ms. Saadatnejadi filed the affidavit of a professor of religi on at Boston U

niversity who is an expe rt in Islamic S tu dies. The prof essor expla

ined: In contrast t

o Wester n r elig ious teaching and practice (p a rticular

ly in Christia

nity, both C atholic an d Protesta nt, but also to some

extent Juda

ism) Isla m from its inception to the presenthas consist ently rejecte d the distin c tion between clergy and laity. Islamic law stipulates quite prec isely that a nyone with

the requisite know ledgeof Islamic law is competent to perform religious ceremonies, including marr iage. O ne is not required to have an offi cial po sition in a r eligious in stituti on such as a mosque (mas jid) in orde

r to be qualified to perfor

m such cer

emonies. I understand that Mr. Tarahian who perfo rme d the marriage ceremony in question is not the official imamof the local mosque, t hough he does from

time to time carry out

the duties ordi narily performed by an im am. From the vantage point of Islamic jurisprudence , the question of his ri ght to bear the title i mam is irreleva nt. His competen ce be fore Isl amic law to performMuslim ce

remonies is determ

ined solely

by his knowledge

of that le gal corpus. It is quite clear that Mr. Tarahian does possess such knowledge an d that he is recognized by member s of the Mus lim co mmunity as posses si on [sic] the

competenc e to perf

orm relig ious (and civil ) ceremonies. Vie wing the compet ent proof in the lig ht most fav orable to M s. Saadatnej adi, i t is un dispute d that Mr. Tarahi an possesse d the author ity to admini ster Isla

mic blessings. At the most, the record contains a material factual dispute on this issue. In either case, the trial court erred when it gra nte d a summary judgment to Mr. Aghili on thi s ground.5 The statutes governing marriage licenses do not require either the bride’s or the

groom’s signature on the marriage license. -7- B. T HE F ILING OF THE M ARRIAGE L ICENSE

Mr. Aghili als o asserts t hat the ma

rriage i s void b ecause th e marri age license was not f

iled withi n three day s after th e Decem ber 17, 199 4 ceremo ny. This fact is undisputed because all parties agree tha t the secon d marriage license
was not filed i n the Ruthe rford Cou nty Clerk’ s office until Febr uary 8, 199 5. Thus, in order f

or Mr. A ghili to pre vail onthis ground, he must demonstrate that the late fili ng of

amarriage license

invalidate s a marr

iage as a matter of

law. T his he cannot do

.
The failure of an officiant to return the marriage license to the issuing clerk within three days after the ceremony does not invalidate the marriage. See Tenn. Code Ann. § 36-3-306 (1996). Thus, if Mr. Tarahian could solemnize marriages underTennessee la w, his failure to return the completed marr iage lice nse within the time requ ired by Tenn. Code A nn. § 36-3- 303 does not undermine the validity of the marria ge.

The purpose of

the filing re quirement

in Tenn. Code Ann. § 36-3-303 is to
assure the preserva

tion of a r eliable, accurat

e record of a mar riage. The filing of the second

marriage license

on Februa

ry 8, 1995 sa

tisfies thi s require ment as lon g
as it cont ains the inf

ormation r

equired by l aw. T

he license

filed on F ebruary 8, 1995 appears to be appropriate on its face. It is signed by the officiant as required by Tenn. Code Ann. § 36-3-103(c)(1) (1996), 5 and it conta ins the info rmation required by Tenn. Code Ann. § 36-3-104( a) (19 96). Despite Mr. Aghili’s assertio ns that the F ebruary 8, 1995 license was inval id, the r

ecord cont ain s n o competent

evidence that the lic ense was inadequate or that it was rej e cted by either the clerk or the Depa rtment of Health.

IV.-8- Tennessee protects t

he instituti on of marr

iage by presuming that regularly solemnized marriages are valid. Cole v. Parton , 172 Tenn. 8, 11-12, 108 S .W.2d 884, 885 (1937). Thus, pe rsons chall enging a marri age must pr ovide cogent and convincing evidence that the marriag e is inv alid. Huey Bros. Lumber Co. v. Anderson , 519 S.W. 2d 588, 590 ( Tenn. 197 5); Moodyv. T.H. Hays & Sons, Inc. , 189 Tenn. 66 6, 675, 227 S.W.2 d 20, 24 (195 0). Mr. Aghili has not carr ied his burden and, therefore, was not entitled to a judgment as a m atter of law that his marriag e to Ms. S aadatnej adi was vo id ab initio.

We reverse the final judgment and remand this case to the tri al court f or further proceedi ng s cons istent wit h this opinion. We also t ax the cost s of this appeal to Hossein Aghili for which execution, if necessary, may issue.

_ _________________

________

_ _ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_______________ SAMUEL L. LEWIS, JUDGE

_________________

_______________ BEN H. CANTRELL, JUDGE