Contracts and Standing and Support, Oh My!

by

Contracts and Standing and Support, Oh My!

Nathan Gabbard

Nathan W. Gabbard practices family law at Trabolsi & Levy, LLP in Santa Monica, CA. In 2016, he became certified as a family law specialist by the State Bar of California, Board of Legal Specialization and has been designated as a "Super Lawyer Rising Star" in 2017. Mr. Gabbard serves on the Leadership Council of the Los Angeles Center for Law and Justice (LACLJ) and the Executive Committee of the Beverly Hills Bar Association – Family Law section. He has also been a member of the Executive Committee on the LGBT Bar Association of Los Angeles. In the past, he has volunteered as a presenter of Safer Community workshops, providing information and opening a dialogue with college students about domestic violence, and has presented at the Inn of St. Ives at Southwestern Law School regarding gun violence restraining orders.

I mmigrant Spouse Has Standing In State Family Court Proceeding To Enforce A Support Obligation Created By An Affidavit In Connection With Sponsoring The Spouse For An Immigration Visa

Danny wants to start a construction project. In fact, for many months, he has been telling all of his friends about the idea to construct a tall, vertical plane separating two distinct spaces. However, Danny does not want to pay for the construction project. One day, Danny meets Ernie, who is skilled in construction. Ernie offers to construct the tall vertical plane for Danny. Danny and Ernie each sign a written agreement that outlines the work that Ernie will perform and the amount Danny will pay for Ernie’s services. Danny and Ernie both sign the written agreement. Ernie builds the structure according to the scope of work identified in the written agreement. But, Danny refuses to pay. Ernie consults an attorney to find out if he has any remedies. What issues are presented?

As Danny’s and Ernie’s situation demonstrates, the application of contract law principles arises in a variety of shapes and forms. The practice of family law is no exception. Family law practitioners are familiar with applying contract law principles when interpreting the language of stipulated judgments or determining if an oral agreement to support adult children can be enforced.

In Kumar,1 a case of first impression, the First District examined a contract claim that arose in a state court family law proceeding. The claim was based on an agreement by one spouse to support the other spouse. However, the agreement originated outside of the family court proceeding. Specifically, the husband had signed an affidavit that he was required to submit to the federal government as part of his petition to sponsor his wife for an immigration visa.

For context, there are a variety of methods for a foreign citizen to obtain the status of lawful permanent resident in the United States. Commonly, to do so requires being sponsored by a U.S. citizen, lawful permanent resident, immediate relative, or prospective U.S. employer.2 According to the Department of Homeland Security,3 in the first half of the fiscal year 2017, approximately 559,000 individuals obtained lawful permanent resident status in the United States. About one-half of all lawful permanent residents in fiscal year 2017 obtained such status as immediate relatives of U.S. citizens, while about two-thirds obtained this status either as immediate relatives or under a family preference category. More than 116,000 obtained status through family-sponsored preferences. In comparison, only about 13% of lawful permanent residents obtained such status through employment-based preference during the same period.

During the first quarter of fiscal year 2017, the U.S. Citizenship and Immigration Service received 160,510 petitions for lawful permanent resident status for an "immediate relative." Of those, 13,187 petitions were filed in California.4

A U.S. citizen who wants to bring his or her spouse to live in the U.S. as a lawful permanent resident will be required to file a petition (form I-130, Petition for Alien Relative) and an application for permanent residence or status adjustment (form I-485, Application to Register Permanent Residence or to Adjust Status). According to the language on the forms, the purpose of these forms is to establish the existence of a relationship to certain alien relatives who wish to immigrate to the United States.

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Additionally, the sponsor must demonstrate adequate income or assets to support the intending immigrant and must accept legal responsibility for financially supporting their family member. To that end, the sponsoring family member must complete and sign an Affidavit of Support (form I-864). Caselaw describes the purpose of form I-864 as being "to ensure that an immigrant does not become a public charge."5 The first paragraph at the top of page one of Form I-864 bears a similar descriptor: "This affidavit is required…to show that [intending immigrants] have adequate means of financial support and are not likely to become a public charge." These required forms were discussed in Kumar. Form I-864, Affidavit of Support, came under particular scrutiny and carried important weight in the outcome of the case.

The Facts Of The Matter

The primary issue raised in Kumar was: Does an immigrant spouse have standing in a state court to enforce the support obligation created by the affidavit of support that her spouse was required to submit to the federal government in connection with his petition to sponsor her for an immigration visa? The Court held: Yes.

In Kumar, Husband was born in Fiji and is a U.S. citizen. Wife is a citizen of Fiji. The parties had an arranged marriage, which took place in Fiji. Husband filed an immigration visa petition for alien relative (form I-130) on behalf of wife, which was approved on December 1, 2012. Husband also filed an Affidavit of Support (form I-864), and submitted it to the federal government in April 2013. Wife came to California in July 2013, where she lived with Husband and his family.

Wife described Husband as beginning to abuse her almost immediately, then "tricked" her into traveling to Fiji with him. Once in Fiji, Husband abandoned Wife, who discovered that the page in her passport showing permanent resident status had been torn out. Subsequently, Wife obtained temporary travel documents and returned to the U.S. In January of 2014, Husband filed a petition for annulment and, in the alternative, dissolution of marriage. Wife responded, asking for a denial of annulment and granting of dissolution of marriage. One month later, Wife filed a financial statement that stated that she had applied for public assistance (TANF, SSI, or GA/GR). However, she did not yet seek enforcement of the I-864 support provision.

In May 2014, the parties agreed that Husband would pay Wife $675 per month as temporary spousal support, though Wife did not agree to a seek-work order or a Gavron warning. Wife’s counsel mentioned the form I-864 support provision in support of Wife’s argument. The trial court entered the parties’ agreement as its order and issued a Gavron warning, but did not issue a seek-work order.

Four months later, Husband filed a request to terminate spousal support, in large part based on his contention that Wife had not made any efforts to become self-supporting. Wife opposed the request, asserting that she did not have a work permit, and she could not show proof of residency because Husband had stolen hers and replacements had not yet arrived. Wife also attached a copy of the Affidavit of Support (form I-864), asserting that Husband had sworn to "take care of" her for ten years or forty working quarters. The trial court terminated spousal support, stating that Wife should be working full time making minimum wage, and suggested she "[f]ile a federal case" regarding the I-864 support provision. Wife appealed. Importantly, she appealed the trial court’s decision "denying enforcement of a contract formed by an I-864 Affidavit requiring financial support," rather than claiming to be entitled to additional spousal support under the Family Code.

In A Reversal, The Court Held That Wife Did Have Standing To Enforce The Separate Contractual Obligation Of Support

The court of appeal reversed, holding that an I-864 Affidavit is an enforceable contract and that a sponsored immigrant has standing to bring an action to enforce it in state court. The court reasoned that the Affidavit of Support is a legally enforceable contract between the sponsor and the sponsored immigrant, and that by signing the form, the sponsor agrees to provide support to maintain the sponsored party at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable. Although there are five conditions upon which the obligations under the I-864 form may properly terminate, a divorce is not among them.

By signing form I-864, a sponsor agrees to submit to the jurisdiction of any federal or state court for the purpose of actions of enforcement.6 The court found the statute and regulations to be clear, that a sponsored immigrant has standing to enforce the obligations of an Affidavit of Support against her sponsor and may bring such an enforcement claim in either state or federal court.7

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Wife contended that "the right of support conferred by federal law exists apart from whatever rights a sponsored immigrant might or might not have under state divorce law."8 The court held that Husband "misse[d] the mark"9 by arguing that the federal pre-emption doctrine prevented wife from enforcing the Affidavit of Support obligation in the state court family law proceeding. It reasoned that Wife was not making any claim that she is entitled to support based on state law. Rather, she sought to enforce the entirely separate support obligation arising from the contractual obligation created by the Affidavit.10

Husband also argued that Wife should file a separate action to enforce the Affidavit of Support and that it was not enforceable in a dissolution action. However, the court was not persuaded by this argument, explaining that there is no reason that a superior court hearing a divorce could not exercise jurisdiction over an immigrant spouse’s contract claims based on an Affidavit of Support. Specifically, the court reasoned: "there is no separate ‘family court’ jurisdiction. ‘In practice, the superior court exercising jurisdiction under the Family Code is known as the ‘family court’ (or ‘family law court’). But there is no separate ‘family court’ per se. Rather, ‘family court’ refers to the activities of superior court judicial officers handling litigation arising under the Family Code. The ‘family court’ is ‘not a separate court with special jurisdiction, but is instead the superior court performing one of its general duties.’"11

Finally, Husband argued that Wife had a duty to mitigate her damages. The court disagreed, holding that an immigrant spouse seeking to enforce the support obligation of an Affidavit of Support has no duty to seek employment to mitigate damages.12 In so holding, the court reasoned that the sponsor is the guarantor that the sponsored immigrant will have sufficient financial resources to avoid becoming a public charge, and that the sponsored immigrant has independent initiative to seek employment because the "meager guarantee" of the Affidavit is only 125 percent of federal poverty line.13 Thus, the court held that the immigrant spouse has no legal obligation to mitigate damages, though there may be independent incentive to do so.

Practical Impact

The Kumar opinion has a clear and practical impact. "This decision will help survivors of domestic violence, who, because of immigration status and economic circumstances, are more vulnerable to abuse," according to Sarah Reisman, a Senior Attorney at the Los Angeles Center for Law and Justice (LACLJ).14 Ms. Reisman further noted: "Often survivors must choose between leaving an abusive relationship and the relative economic security of staying with a batterer. This economic tension is higher for recent immigrants, who might not speak English or have sufficient contacts or support necessary to immediately get a job. The clarity of this decision can make the difference between staying and leaving, and can ensure that once a survivor has left, she has the financial resources to begin to rebuild her life."

Although the court in Kumar did not rule on the merits of wife’s contract claim for enforcing the I-864, it did make clear that the immigrant spouse has standing to seek such enforcement in state court, including in a dissolution of marriage action. For immigrant spouses who rely on an abusive sponsoring spouse, this decision provides at least one roadmap to escaping an abusive relationship.

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Notes:

1. In re Marriage of Kumar, 13 Cal. App. 5th 1072 (2017). Opinion filed July 28, 2017, Court of Appeal of California, First Appellate District, Division Two, appeal from the trial court ruling of the Superior Court of San Mateo County, Hon. Judge Don R. Franchi.

2. U.S. Department of State, Bureau of Consular Affairs, https://travel.state.gov/content/visas/en/immigrate.html.

3. Legal Immigration and Adjustment of Status Report, U.S. Department of Homeland Security, www.dhs.gov/immigration-statistics/special-reports/legal-immigration.

4. Legal Immigration and Adjustment of Status Report FY2017 Q2, U.S. Citizenship and Immigration Services, https://www.dhs.gov/sites/default/files/publications/FY2017_Q1Q2_tables_D_0.xlsx.

5. Younis v. Farooqi, 597 F. Supp. 2d 552, 557(D. Md. 2009).

6. 8 U.S.C. § 1183a (a)(1)(B)&(C)

7. Kumar, 13 Cal. App. 5th at 1079.

8. Kumar, 13 Cal. App. 5th at 1081.

9. Id.

10. Kumar, 13 Cal. App. 5th at 1082, n.9.

11. Kumar, 13 Cal. App. 5th at 1082-1083 (citing Hogoboom & King, Cal. Practice Guide: Family Law ¶3:3.10 (2016)).

12. Kumar, 13 Cal. App. 5th at 1085.

13. Kumar, 13 Cal. App. 5th at 1084 (citing Liu v. Mund, 686 F.3d 418, 422 (7th Cir. 2012)).

14. LACLJ is a non-profit organization founded in 1973 that provides no-cost legal services to low-income and primarily immigrant and Latino populations in Los Angeles. LACLJ provides family and immigration law services to more than 600 clients per year and conducts legal education to approximately 1,500 community members and providers.