In re Bychina
| Citation | 2021 IL App (2d) 200303,186 N.E.3d 27,452 Ill.Dec. 580 |
| Decision Date | 18 June 2021 |
| Docket Number | 2-20-0303 |
| Parties | IN RE MARRIAGE OF Elena BYCHINA, Petitioner-Appellant, AND Boris ASTRAKHANTSEV, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
Julia Bikbova, of Northbrook, for appellant.
No brief filed for appellee.
¶ 1 Petitioner, Elena Bychina, petitioned to dissolve her marriage to respondent, Boris Astrakhantsev, and included in her petition a count for breach of a federal contract under which respondent had promised to support petitioner, who is a recent immigrant to this country. The trial court acknowledged that it could reach the merits of the contract count but declined to do so and directed petitioner to seek relief in federal court. Petitioner appeals. We reverse and remand.
¶ 4 Petitioner, age 32, and respondent, age 55, met in August 2012 in Russia and began a relationship. Shortly thereafter, respondent, a United States citizen, returned to the United States, and the couple continued their relationship by phone and online. In 2013, respondent returned to Russia to see petitioner. He proposed marriage during a trip to Thailand. On December 29, 2014, petitioner entered the United States on a K-1 visa, otherwise known as a fiancée visa.
¶ 5 The parties married in Florida on March 9, 2015. Shortly after the marriage, on June 8, 2015, respondent executed a Department of Homeland Security United States Citizenship and Immigration Services Form I-864 (Affidavit of Support) under section 213A of the Immigration and Nationality Act, as amended and codified under title 8, chapter 12 of the United States Code. See 8 U.S.C. §§ 1182(a)(4), 1183a (2018). As petitioner's sponsor, respondent promised to support petitioner, the beneficiary, at an income level of at least 125% of the federal poverty level1 and to reimburse any government agencies for certain means-tested benefits paid to petitioner. Id. § 1183a(a)(1)(A)-(C).
¶ 6 By way of background, the Affidavit of Support's purpose is to preclude admission to the United States of any alien who "is likely at any time to become a public charge" (id. § 1182(a)(4)(A)), and it constitutes a contract between the sponsor and the United States government for the benefit of, as relevant here, the sponsored immigrant ( 8 C.F.R. § 213a.2(d) (2020) ). "The sponsored immigrant *** may seek enforcement of the sponsor's obligations through an appropriate civil action." Id. ; see also 8 U.S.C. § 1183a(e) (2018) (). The sponsor's obligations end if he or she dies. 8 C.F.R. § 213a.2(e)(2)(ii) (2020). Further, the sponsor's obligations end if the sponsored immigrant (1) becomes a United States citizen, (2) has worked or can be credited with 40 quarters of coverage under the Social Security Act, (3) no longer has lawful permanent resident status and has left the United States, (4) becomes subject to removal but obtains a new grant of adjustment of status based on a new affidavit, or (5) dies. Id. § 213a.2(e)(2)(i). As relevant here, divorce, as the Affidavit of Support states, does not terminate the sponsor's obligations under the Form I-864. See, e.g. , Younis v. Farooqi , 597 F. Supp. 2d 552, 554 (D. Md. 2009) ; Shumye v. Felleke , 555 F. Supp. 2d 1020, 1024 (N.D. Cal. 2008).
¶ 7 In the signature section of the Affidavit of Support, respondent certified under penalty of perjury that he "agree[d] to submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against [him] to enforce [his] obligation under this Form I-864." (Emphases added.)
¶ 9 On January 8, 2019, petitioner petitioned for dissolution of the parties’ marriage. In her petition, she included a count for breach of contract, alleging that respondent breached his promise to her (as a third-party beneficiary) under the Affidavit of Support, where he canceled her medical insurance (in January 2018) and had failed to financially support her (since late December 2018). Petitioner asserted that she was a full-time student at the College of Du Page, was not employed, and did not expect to gain full-time employment at any point in the near term. Respondent worked as an independent-contractor truck driver for an interstate transportation company. Petitioner asserted that she would not be able to become a United States citizen until late 2022 or later (and only if she gained the requisite knowledge and command of the English language). (By instituting the divorce action, she was giving up her ability to become a citizen in three years and would instead have to wait five years.) As a lawful permanent resident of the country, she asserted, she was prohibited from seeking and obtaining any public benefits. Thus, respondent, under the Affidavit of Support, was required to support her until she became a citizen. Petitioner sought enforcement of the Affidavit of Support, attorney fees, and costs.
¶ 10 Respondent answered the petition, raised the affirmative defense of fraud, and counterpetitioned for a declaration of the invalidity of the marriage, arguing that he was fraudulently induced into the marriage, because petitioner merely sought United States citizenship. According to respondent, petitioner never intended to live as husband and wife with him, have children, or remain married past the acquisition of her permanent-resident status.
¶ 11 Petitioner moved for temporary maintenance, and the trial court granted the motion on February 21, 2019. The trial court subsequently found respondent in contempt for failing to pay rent on a temporary basis, temporary maintenance, and interim fees. Respondent posted bonds that were turned over to petitioner. In a subsequent filing, petitioner alleged that she was employed as an Uber driver and was a student at the College of Du Page.
¶ 13 Trial occurred on March 13, 2020. Respondent's attorney appeared, but respondent did not appear or present evidence. Petitioner was the only witness to testify, and the record on appeal does not contain a report of proceedings from the trial.
¶ 14 On May 8, 2020, the trial court dissolved the parties’ marriage but declined petitioner's request to enter judgment on the breach-of-contract count and directed her to seek that relief in federal court. In extensive written findings, the court noted that the parties’ marriage was of short duration, there were no children and virtually no assets, and there was modest debt; the central issues were maintenance and the Affidavit of Support.
¶ 15 As relevant here, on the dissolution count, the court determined that an award of maintenance for petitioner was not justified under the current circumstances. The court would review maintenance for her in 18 months (and set the end date at three years for petitioner to file a maintenance claim), wherein it would assess any steps petitioner took to become self-supporting. It barred respondent from seeking maintenance and rejected respondent's fraud affirmative defense and his request to find that the marriage was invalid.
¶ 16 The parties’ income was unclear, the court determined, as both parties were incredible on the subject. Petitioner, the court found, was underemployed and did not testify how many hours she worked per week or month. She had a university degree from Russia and was hardworking and intelligent. Although English is her second language, the court noted, she had a greater understanding of it than she portrayed in court (as evidenced in part by her responding in English to a question in court before it was fully translated into Russian).
¶ 17 The court related that petitioner had testified that she underwent a medical procedure that resulted in her being unable to conceive a child.2 When she informed respondent, he advised her that he no longer wished to be in a relationship with her. During the pendency of the proceedings, respondent had been ordered to pay monthly rent for the parties’ apartment, but he did not comply with the order and was found in indirect civil contempt of court. The court also found him incredible on the issue of his income but did not find him in contempt, because he was "purportedly no longer working and had medical issues." In subsequent proceedings, the court noted, respondent had not paid his temporary-maintenance arrearage or interim attorney fees and was found in indirect civil contempt (for failing to pay $8450). It issued a body writ when respondent failed to make any payments toward the purge and failed to appear in court. The true nature of respondent's medical condition, the court found, was unknown. He worked as a truck driver, warehouse worker, and then "possibly a baby-sitter." Respondent's income and the sources thereof were unknown.
¶ 18 As to petitioner, the court determined that she had the ability to work more hours than she did and that, when she has needed more income, she has worked more hours and earned more. She drove for Lyft and Uber. Despite not receiving maintenance payments from respondent, she did not see her needs increase. "[W]hen she had a need, she was able to meet that by working more hours." She "is either under-reporting her income or is, otherwise, underemployed." The court found that petitioner had the ability to earn over $2000 per month, where she had done so on two occasions in the prior year. The 18-month review date for maintenance, the court noted, was to assess what additional efforts petitioner made to become self-supporting and to review efforts she made concerning her federal case, if she had brought one.
¶ 19 Turning to the breach-of-contract count, the trial court noted that petitioner had requested a finding that respon...
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