Kumar v. Kumar (In re Kumar), A145181

• Citation: 220 Cal.Rptr.3d 863,13 Cal.App.5th 1072
• Decision Date: 28 July 2017
• Docket Number: A145181
• Court: California Court of Appeals
• Parties: IN RE the MARRIAGE OF Ashlyne and Vikash KUMAR. Ashlyne Kumar, Appellant, v. Vikash Kumar, Respondent.

13 Cal.App.5th 1072

220 Cal.Rptr.3d 863

IN RE the MARRIAGE OF Ashlyne and Vikash KUMAR.

Ashlyne Kumar, Appellant,

v.Vikash Kumar, Respondent.

A145181

Court of Appeal, First District, Division 2, California.

Filed July 28, 2017

Attorneys for Appellant: J. Neel Chatterjee, Edwin Steussy, Orrick Herrington & Sutcliffe LLP, Los Angeles, Erin C. Smith, San Jose, Jennafer D. Wagner, Shuray Ghorishi, Walnut Creek, Family Violence Appellate Project, Protima Pandey, Bay Area Legal Aid

Attorneys for Respondent: Margaret Sharon Tillinghast, Daly City

Attorneys for Amicus Curiae National Immigrant Women's Advocacy Project in support of appellant: David Ginsberg, Harsh Parikh, Los Angeles, Judy Choi

Miller, J.

In this marital dissolution proceeding, an immigrant spouse seeks to enforce her contractual right to support based on the affidavit of support which her American spouse was required to submit to the federal government in connection with his petition to sponsor her for an immigration visa. As required by the terms of the affidavit of support, her American spouse promised to support her at an income of at least 125 percent of the federal poverty line for 10 years.

The issues raised in this appeal appear to be matters of first impression in California.¹ We hold that an immigrant spouse has standing to enforce the support obligation created by an I–864 affidavit in state court. We further hold that an immigrant spouse bringing such a claim has no duty to mitigate damages. Because the trial court's ruling in this matter conflicts with our holdings, we reverse. We remand to the trial court to consider the immigrant spouse's contract claim in accordance with this decision.

FACTUAL AND PROCEDURAL BACKGROUND

Vikash Kumar was born in Fiji and is now a United States citizen. Ashlyne Kumar is a citizen of Fiji. On September 22, 2012, Vikash, then 27 years old, and Ashlyne, then 25, married in Fiji in an arranged marriage.²

Vikash filed a form I–130 immigration visa petition for alien relative on behalf of Ashlyne, and the petition was approved on December 1, 2012. In connection with bringing his new wife to the United States, Vikash signed a form I–864 affidavit of support (I–864 affidavit) and submitted it to the federal government in April 2013. The purpose of an I–864 affidavit is "to ensure that an immigrant does not become a public charge." ( Younis v. Farooqi (D.Md. 2009) 597 F.Supp.2d 552, 557, fn. 5.) A form I–864 affiant is usually referred to as a "sponsor."

Under the heading "Part 8. Sponsor's Contract," the I–864 affidavit signed by Vikash gave the following warning: "Please note that, by signing this Form I–864, you agree to assume certain specific obligations under the Immigration and Nationality Act and other Federal laws." On the same page, the affidavit explained that, by signing the affidavit, the sponsor agreed to "[p]rovide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size...." The affidavit further stated, "If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I–864 that you signed, that person may sue you for this support."

Ashlyne entered the United States in July 2013, and lived with Vikash and his family in Daly City. According to Ashlyne, Vikash began abusing her almost immediately.³ He would not speak to her except to say that he did not want to be with her and that he wanted her to leave and to go back to Fiji. In December 2013, Vikash and his family "tricked" Ashlyne into going to Fiji with Vikash. After they arrived in Fiji, Vikash abandoned her there. Ashlyne also discovered that the page with her legal permanent resident stamp had been torn out of her passport.

Ashlyne obtained temporary travel documents from the United States Embassy in Fiji, and returned to the United States on December 29, 2013.

On January 14, 2014, Vikash filed a petition for annulment and, in the alternative, dissolution of marriage. In March 2014, Ashlyne filed a response to Vikash's petition. She asked the court to deny Vikash's request for an annulment and grant a dissolution of marriage. She did not ask for enforcement of the I–864 affidavit at that time. In April 2014, Ashlyne filed a financial statement, in which she indicated she received no salary or benefits, and she "applied for TANF, SSI, or GA/GR" (i.e., Temporary Assistance for Needy Families, Supplemental Security Income, or general assistance/general relief, respectively).

On May 7, 2014, the trial court held a hearing on spousal support. At the start of the hearing, counsel for Ashlyne informed the court that the parties had agreed to temporary spousal support for Ashlyne of $675 per month, but Ashlyne disagreed with Vikash's request for a "seek work" order and a " Gavron warning" that she was expected to become self-supporting.⁴

Ashlyne's counsel objected to an order that Ashlyne seek work on the ground that she did not have her current residency card because Vikash had stolen it and "she has no status currently." Her counsel also stated that Ashlyne was on general assistance and living in a shelter. Vikash's counsel argued that Ashlyne had a duty to become self-supporting, noting, "This was her choice to come here and stay here."

In response, Ashlyne's counsel raised the I–864 affidavit. She told the court that by signing the I–864 affidavit, Vikash "vow[ed] to support [Ashlyne] for 10 years or 40 quarters" and "swore under oath to support her." Vikash's counsel took the position "[t]he affidavit of support is irrelevant in this court."

At the close of the hearing, the trial court ordered temporary spousal support of $675 per month as agreed to by the parties. The court also gave a Gavron warning, explaining it was appropriate because "it has been a short-term marriage." However, the court did not issue a seek-work order because "there are some issues she needs to overcome before she can legally seek work in this country." Instead, the court ordered Ashlyne to make reasonable and good faith efforts "to get the necessary paperwork for her to be able to work in this country if she is intending on remaining here."

On September 3, 2014, Vikash filed a request for an order terminating spousal support and dissolving the marriage. Vikash asserted that Ashlyne had made no efforts to become self-supporting, and he urged the court to impute to her income from a full-time, minimum wage job.

Ashlyne filed a responsive declaration to Vikash's request. She stated that she did not have a work permit because Vikash stole her green card and she was still waiting for replacement papers. Ashlyne reported that when she tried to apply for jobs, she was asked for proof of residency, and that after Vikash abandoned her, she was on cash aid and food stamps until she started receiving spousal support. Ashlyne attached the I–864 affidavit to her response, and asked the court to continue support "because [Vikash] swore to the US Government he would take care of me for 10 years or 40 working quarters...."

Subsequently, Ashlyne filed an amended memorandum of points and authorities in opposition to Vikash's request to terminate spousal support.⁵ In this brief, Ashlyne asked the court to enforce the specific support requirements of the I–864 affidavit, requesting an order that Vikash "pay support at $1,196.15 per month." Ashlyne explained that the poverty guideline for a one-person household for 2014 was $11,670 per year, and she claimed Vikash was obligated to support her at $14,354.10 per year or $1,196.175 per month.

Ashlyne argued that an I–864 affidavit is a binding contract, and the support obligation of the I–864 affidavit was in addition to any right to spousal support based on state law. She maintained that divorce did not terminate the support obligation, and the short length of the marriage did not matter. Ashlyne further argued that requiring her to bring a separate contract action to enforce the obligation would be contrary to judicial economy.

Therefore, she urged the court to order Vikash to pay support "as per his obligation under the I–864 affidavit of support, to the amount of $1,196.175 per month."

On March 18, 2015, the trial court heard argument on Vikash's request to terminate temporary spousal support and Ashlyne's request to enforce the support requirements of the I–864 affidavit. Ashlyne's counsel reported that Ashlyne was working up to 15 hours a week at a Blimpies, making $9 per hour. She was also attending school, working toward her GED. The trial court terminated temporary spousal support effective that day.

Ashlyne's counsel asked the court to address the I–864 affidavit. The court responded, "I find for the purposes of spousal support under California law she should be working full time making minimum wage. And so I'm not going to order him to pay her support because I find she's not working up to her full potential that she should be based on her ability and need." Counsel asked whether the trial court was denying Ashlyne's request to enforce the I–864 affidavit. The court responded, "Yes, I'm denying your request because I find the respondent is not using best efforts to find work...." The court stated it would enforce the I–864 affidavit if the government sought enforcement and also told Ashlyne, "File a federal case."

The same day, the trial court entered a judgment restoring the parties to single status and terminating spousal support. Ashlyne timely appealed.

DISCUSSION

A. Standard of Review

On appeal, Ashlyne contends the trial court erred in ruling on her contract claim for enforcement of the I–864 affidavit by incorrectly finding that her failure to mitigate damages excused Vikash from his contractual obligations. Whether the trial court denied Ashlyne's enforcement claim on the ground she failed to mitigate damages or because it believed she had no right to enforce the contract in state court, the...