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State Supreme Court asked to hear case involving Hmong marriage

By: ROBERT IMRIE, Associated Press Writer, February 13, 2002


A state appeals court asked the state Supreme Court Tuesday whether a marriage performed according to traditional Hmong ceremonial rites in Laos is valid in Wisconsin.

The appeals court said the Outagamie County dispute has ramifications for the state's large Hmong immigrant population in family law, health insurance and pension benefits.

At issue is whether Nhia Lue Xiong, 47, of Kaukauna was the surviving spouse in an automobile insurance policy following an accident that killed his wife, Mai, in 1998.

"The state's highest court is the appropriate body to address this significant question," the 3rd District Court of Appeals said. The couple's five children seek more than $100,000 from an auto insurance policy.

They argue their mother and father did not have a legally recognized marriage, making the children eligible for the money from State Farm Insurance Co. under a wrongful death claim they filed shortly after the car accident.

On Aug. 23, 1998, Xiong was driving on U.S. Highway 10 near Manitowoc when he crashed into the back of a hay wagon, killing Mai, court records said.

Under the terms of the insurance policy and the state, the father was considered negligent in the accident and not entitled to the money.

"We certainly got a unique set of facts in this case, no question about it," said Jane Kirkeide, an attorney for the father and insurance company. "If the marriage is valid, there are no insurance proceeds to pay out."

According to court records, Xiong said he complied with Hmong traditional marriage rites when he married Mai Moua Xiong in 1975 in Laos.

He said he made a negotiated payment to Mai's family in accordance with Hmong marriage tradition.

Xiong said he was a member of a secret Lao army that worked for the CIA and he would have been killed if he had he tried to file any government papers in Laos to validate the marriage, court records said.

He and Mai fled Laos in May 1975 during the communist takeover to a refugee camp in Thailand. They had no documentation of any kind, including birth certificates, court records said.

The couple lived in the camp for five years, having one child, before coming to the United States in 1980 and telling immigration authorities that they were married.

The family lived in Chicago and Pennsylvania before moving to Wisconsin and becoming U.S. citizens in 1995.

"There is no suggestion that the validity of their marriage was ever questioned until the events that gave rise to this action," the three-judge appeals court in their ruling said Tuesday.

In seeking the insurance proceeds, the children offered the testimony of a Laotian legal expert, who said that in 1975 in Laos, a marriage was not valid unless it was "solemnized" by a government district officer.

The family said common-law marriages were abolished in Wisconsin in 1917.

State Farm argued the couple believed they were validly married. It also argued that Mai's death certificate says she was married and it is in the public interest to maintain a marriage relationship.

Outagamie County Circuit Judge Joseph Troy dismissed the children's lawsuit, ruling their father was their mother's surviving spouse.

Frances Li, an attorney for the children, said many Hmong refugee couples have the needed paperwork to validate their marriages, some acquiring the documentation while in Thailand and others getting it in the United States.

"Unless you are legally married in Wisconsin, you are not married," she said. "I don't think these are greedy children at all. This is the system that we live in. They have a right to compensation for having lost their mother."

About 39,000 Hmong live in Wisconsin, primarily in Brown, Dane, La Crosse, Marathon, Milwaukee, Outagamie and Sheboygan counties.

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