A California Appellate Court has ruled that a Trial Court was wrong when it declined to enforce form I-864 (affidavit of support of immigrant by sponsor) in a divorce action because Wife made insufficient efforts to find work. Wife had no duty to mitigate damages and she had standing to enforce that form in state divorce court.
In the case of In re Marriage of Kumar, Husband, a U.S. citizen, and Wife, a citizen of Fiji, were married in Fiji on September 22, 2012, in an arranged marriage. Husband then filed a form I-130 petition for an immigrant visa for Wife. He also signed a form I-864 affidavit of support, which obligated him to support Wife for 10 years at an income that is at least 125% of the Federal Poverty Guidelines for his household size. The affidavit also stated that Wife would have the right to sue Husband for support if Husband failed to pay.
Wife arrived in the U.S. from Fiji in July of 2013, and began living in Daly City, California with Husband and his family. Wife would later allege that Husband “began abusing her almost immediately.” Husband refused to speak to Wife except to tell her that he didn’t want her and she should go back to Fiji. Wife claimed that Husband and his family “tricked” her into going to Fiji with them, and once there, he abandoned her and someone tore the legal permanent resident stamp out of her passport. After receiving temporary travel documents from the U.S. Embassy in Fiji, Wife returned to the U.S. on December 29, 2013.
On January 14, 2014, Husband filed for an annulment or alternatively for a divorce. In her response, Wife asked Trial Court to deny Husband’s annulment petition, but to grant a divorce judgment. In April of 2014, Wife followed up with a financial statement showing that she had applied for TANF, SSI, or GA/GR, but had not received any benefits and had no salary.
At the May 7, 2014 hearing on spousal support, Wife’s attorney told Trial Court that Husband and Wife had agreed that Husband would pay W $675 per month for temporary support, but Wife would not agree to a “seek work” order or a Gavron warning [that she has a duty to become self-supporting within a reasonable period of time which usually is one-half the length of the marriage]. Counsel stated that Wife was on general assistance and living in a shelter, but could not seek work because Husband had stolen her current residency card. Husband’s attorney countered that it was Wife’s “choice to come here and stay here,” thus, she had a duty to become self-supporting. Wife’s attorney then asserted that Husband had signed a form I-864 affidavit that obligated him to support Wife for 10 years or 40 quarters. Husband’s attorney countered that the affidavit was “irrelevant in this court.”
When the hearing concluded, Trial Court ordered Husband to pay $675 per month for temporary support, per their agreement, declined to make a seek work order, gave a Gavron warning, and ordered Wife to make reasonable and good faith efforts to obtain the paperwork needed to enable her to work in the U.S.
On September 3, 2014, Husband sought an order terminating spousal support and granting a status-only divorce judgment. Husband claimed that Wife had not made the necessary efforts to become self-supporting and asked Trial Court to impute the income to Wife that she could expect to earn from a full-time minimum wage job. In her responsive declaration, Wife stated that Husband had stolen her green card and she was waiting for replacement papers. Wife also stated that she received cash aid and food stamps until Husband began paying her spousal support. Wife attached the I-864 form to her response, and asked Trial Court to continue support based on its requirements. Wife followed up with an amended memorandum of points and authorities, asking Trial Court to enforce the I-864 support requirements and to order Husband to pay $1,196 per month in accordance with the poverty guideline for 2014. Wife contended that the affidavit was an enforceable contract, was in addition to any spousal support payable under state law, and that the divorce did not wipe out its obligation. Wife also asserted that she was not required to file a separate contract action to obtain enforcement of the affidavit.
At the March 18, 2015 hearing, Trial Court heard argument on Husband’s request to terminate spousal support and Wife’s request to enforce the affidavit. Wife’s attorney told Trial Court that Wife was working part-time at Blimpies for $9 per hour, and taking courses to obtain her GED. Trial Court terminated the temporary support order effective immediately. When Wife’s attorney asked for a ruling on enforcement of the affidavit, Trial Court responded that it declined to order spousal support because Wife failed to work up to her full potential. Trial Court stated that it was declining to enforce the affidavit because Wife failed to use her best efforts to find work, and told Wife to file a federal action. That same day, Trial Court entered the parties’ status-only divorce judgment and an order terminating spousal support.
Claiming that Trial Court was wrong by failing to enforce the affidavit on the basis of her work efforts, Wife appealed. Now, a California Court of Appeals has reversed Trial Court’s decision. The Appellate Court has ruled that (1) I-864 affidavit creates a contractual right to minimum support from sponsor to immigrant; (2) sponsored immigrant may enforce I-864 contract in either the federal or state court (including in the divorce court); and (3) per Liu (7 Cir 2012) 686 F.3d 418, Wife has no duty to mitigate damages (no seek work requirement). The Appellate Court has ruled that Trial Court was wrong by denying Wife’s contract claim under the affidavit on the basis that she failed to use her best efforts to seek work. The Appellate Court reverses and sends the case back to Trial Court in order for Trial Court to consider that claim in accordance with this opinion.