JOHN R. BACKMAN v. CATHERINE BACKMAN A/ka/ CATHERINE OTALVARO CESPEDES ( 2022 )

FIRST DIVISION
BARNES, P. J.,
BROWN and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
June 28, 2022
In the Court of Appeals of Georgia
A22A0428. BACKMAN v. BACKMAN.
HODGES, Judge.
In this divorce action, we are asked to decide whether the sponsor of an
immigrant, pursuant to an I-864 Affidavit of Support,1 must provide financial support
to the sponsored immigrant upon the parties’ divorce when the parties previously
executed a prenuptial agreement that waives spousal support. In its order granting a
husband’s petition for divorce, the Superior Court of Fulton County found that the
husband’s I-864 affidavit, executed to provide support to his Colombian wife, was
enforceable and ordered the husband to pay the wife $1,000 in support per month as
a result. We granted the husband’s application for discretionary appeal to consider his
argument that the trial court erred in awarding support to the wife because: (1) the
1
See 8 USC § 1183a at seq.; 8 CFR § 213a.
parties waived spousal support in their prenuptial agreement; and (2) the wife’s
income exceeded the limit for which additional support was required. These
arguments raise issues of first impression in Georgia and, for the following reasons,
we conclude that the trial court correctly found that the husband’s I-864 Affidavit of
Support was enforceable despite the parties’ prenuptial agreement and divorce.
However, the trial court imposed a support award that was not authorized by federal
law due to the amount of the wife’s income. Therefore, we affirm in part and reverse
in part.
The underlying facts are generally undisputed. John Backman (“Husband”) and
Catherine Backman a/k/a Catherine Otalvaro Cespedes (“Wife”) met through an
online dating site in 2011. Thereafter, Husband visited Wife, who was a citizen of and
resided in Colombia, on multiple occasions before proposing marriage.2 The couple
wed in February 2013, but Wife did not have a visa to enter the United State and was
2
In December 2012, the parties executed a prenuptial agreement which
provided, in relevant part, that “[e]ach party releases any right to claim temporary
alimony, permanent alimony, rehabilitative alimony, periodic alimony, lump sum
alimony, special equities, equitable distributions, remuneration, support, and
attorney’s fees or costs” except as related to child support obligations. During the
divorce proceedings, Husband moved to enforce the agreement; Wife filed responses
in opposition to Husband’s motion, to which Husband replied. The trial court
ultimately granted Husband’s motion.
2
unable to immediately join Husband. To expedite Wife’s arrival in the United States,
Husband executed an I-864 Affidavit of Support pursuant to the Immigration and
Nationality Act, in which he pledged to financially support Wife. See 8 USC § 1183a
et seq.; 8 CFR § 213a. Wife then moved to the United States and is now a legal
permanent resident.
However, the couple’s relationship soured, and in July 2018, two months after
the birth of their second child, Husband filed a complaint for divorce. Following a
bench trial, the trial court granted Husband’s petition for divorce and awarded
physical custody of the couple’s two children to Husband. In its final order, the trial
court found that
Husband has an obligation to support Wife pursuant to the I-864
Affidavit of Support under Section 213A of the [Immigration and
Nationality Act]. As such, the Court will use [its] discretion and award
the Wife the amount of $1,000.00 per month, to be paid directly to the
Wife, until such time that the I-8[6]4 Affidavit of Support is no longer
enforceable on January 1, 2023.3
3
The trial court’s order did not contain any citation of authority or discussion
supporting its conclusion. During the bench trial, however, the trial court indicated
it had reviewed the parties’ briefing “regarding the prenuptial agreement and issues
regarding [Husband’s] affidavit that he presented to the government when he
requested that [Wife] come here.” The court stated that it “took that to mean that
[Husband] had an obligation to provide a certain level of financial support” and that
3
Husband filed an application for discretionary appeal to challenge the trial
court’s award of support pursuant to the I-864 affidavit. We granted Husband’s
application, and this appeal follows.4
In a single enumeration of error, Husband argues that the trial court erred in
enforcing a support payment in excess of the maximum required by the I-864
Affidavit of Support. Specifically, Husband argues that the I-864 affidavit only
requires a spouse to “maintain the immigrant spouse at 125% of the federal poverty
guidelines”5 and that Wife’s income exceeded that limit such that no additional
support was available. In part, we agree.
it “will establish the dollar amount that it believes should be provided for [Wife’s]
minimal support . . . [u]nless you can provide me some guidance, through case law,
that says this is the minimum amount that sponsors are to provide, and I do not have
the discretion to do otherwise.”
4
Wife’s motion to dismiss Husband’s appeal is denied.
5
Husband does not contend that the I-864 Affidavit of Support is
unenforceable as a result of the parties’ divorce. See generally Motlagh v. Motlagh,
100 NE3d 937, 942 (II) (Ohio App. 2017) (“Divorce is not a condition under which
the sponsor’s obligations under Form I-864 can be terminated.”). Indeed, Husband’s
counsel stated that she had “no problem with the Court including a provision in its
order that [Husband] will comply with his obligations under I-864.” Rather, he
contends that Wife excused his obligation in view of her waiver of spousal support
in the prenuptial agreement and because Wife’s income exceeds the amount for which
support would be required.
4
As this appears to be an issue of first impression under Georgia law, we start
with a review of the controlling federal statutes that authorize the I-864 Affidavit of
Support. See 8 USC § 1182 et seq. To begin, “the Immigration and Nationality Act
forbids admission to the United States of any alien who ‘is likely at any time to
become a public charge.’ 8 USC § 1182 (a) (4); 8 CFR § 213a.2 (a).” Erler v. Erler,
824 F3d 1173, 1175 (I) (9th Cir. 2016). As a result,
[f]amily-sponsored immigrants seeking admission are admissible only
if the person petitioning for the immigrants’ admission signs an
Affidavit of Support Form I-864. A Form I-864 is a legally enforceable
contract between the sponsor and both the United States Government
and the sponsored immigrant. The signing sponsor submits himself to
the personal jurisdiction of any court of the United States or of any
State, territory, or possession of the United States if the court has subject
matter jurisdiction of a civil lawsuit to enforce the Form I-864. See 8
USC § 1182 (a).
(Citations omitted.) Motlagh v. Motlagh, 100 NE3d 937, 941 (II) (Ohio App. 2017);
see also Erler, 824 F3d at 1175 (I). “By signing a Form I-864 the ‘sponsor agrees to
provide support to maintain the sponsored alien 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.’ 8 USC § 1183a (a) (1) (A).” Motlagh, 100 NE3d at 941 (II). Stated
5
succinctly, then, “when a sponsored immigrant separates from the sponsor’s
household, the sponsor’s obligation under the affidavit of support is to provide the
immigrant with whatever support is necessary to maintain him or her at an annual
income of at least 125% of the poverty guidelines for a one-person household.” Erler,
824 F3d at 1179-1180 (III); see also Younis v. Farooqi, 597 FSupp2d 552, 557 (C)
(D. Md. 2009) (same).
(a) Availability of I-864 Support Generally. In this case, Husband argues that
the application of “an I-864 obligation where the immigrant spouse waived the right
to seek spousal support under state law” is not permitted. This argument is
unfounded.
In Erler, the Ninth Circuit considered an appeal in which a husband and wife
executed a “premarital agreement stating that neither party would be entitled to
alimony or support from the other.” 824 F3d at 1175 (I). Shortly after the parties
married, the husband executed an I-864 affidavit to support the wife, a Turkish
national. Following their divorce, the wife, who had moved in with her adult son,
filed an action in federal district court to enforce the husband’s I-864 obligation to
provide support. The husband argued that “the parties’ premarital agreement and the
6
[state] divorce judgment terminated his obligation under the affidavit of support.” Id.
at 1176 (II).
In concluding that the district court correctly rejected the husband’s argument,
the Ninth Circuit noted 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.” (Citation and punctuation omitted.) Erler, 824 F3d at 1177 (II); see
generally Kawai v. UaCearnaigh, 249 FSupp3d 821, 824 (V) (D. S. C. 2017). As a
result, “under federal law, neither a divorce judgment nor a premarital agreement may
terminate an obligation of support.”6 Erler, 824 F3d at 1177 (II); see also Belevich v.
Thomas, 17 F4th 1048, 1052 (II) (11th Cir. 2021). Other courts considering similar
claims have reached similar conclusions. See Liu v. Mund, 686 F3d 418, 419-420 (7th
Cir. 2012); Golipour v. Moghaddam, 438 FSupp3d 1290, 1299 (D. Utah 2020);
Shumye v. Felleke, 555 FSupp2d 1020, 1024 (I) (A) (N. D. Cal. 2008).
6
“Under federal law, an affidavit of support remains enforceable until the
sponsored immigrant: (1) becomes a citizen of the United States; (2) has worked or
can be credited with 40 qualifying quarters of work under title II of the Social
Security Act; (3) ceases to be a lawful permanent resident and departs the United
States; (4) obtains in a removal proceeding a grant of adjustment of status as relief
from removal; or (5) dies.” Erler, 824 F3d at 1176 (II), citing 8 USC § 1183a (a) (2) -
(3) and 8 CFR § 213a.2 (e) (2) (i). Based upon the record and the parties’ arguments,
none of these factors appear to be satisfied in this case.
7
We agree with the weight of persuasive authority holding that a premarital
agreement under state law does not excuse an I-864 sponsor’s obligation under
federal law to support the subject immigrant, and the parties have not shown why
such authority should not be applied in Georgia. Therefore, we conclude that neither
the parties’ waiver of spousal support in their prenuptial agreement nor their divorce
terminated Husband’s I-864 Affidavit of Support.
(b) Availability of Excess I-864 Support. Having confirmed that Husband’s I-
864 obligation survived the parties’ prenuptial agreement and divorce, we turn next
to whether the trial court correctly awarded Wife $1,000 of support per month
pursuant to Husband’s affidavit. We conclude that trial court’s award was improper.
(i) Size of Wife’s Household. In Erler, the court held that “in the event of a
separation, the sponsor’s duty of support must be based on a household size that is
equivalent to the number of sponsored immigrants living in the household, not on the
total number of people living in the household.” 824 F3d at 1178 (III). Therefore,
[i]f the sponsor agreed to support more than one immigrant, and those
immigrants separate from the sponsor’s household and continue to live
together, then the sponsor must provide them with whatever support is
necessary to maintain them at an annual income of at least 125% of the
poverty guidelines for a household of a size that includes all the
sponsored immigrants. When measuring the immigrant’s income, the
8
court must disregard the income of anyone in the household who is not
a sponsored immigrant.
(Footnote omitted.) 824 F3d at 1180 (III). Applying this principle to the present case,
we conclude that the size of Wife’s household following the divorce was one,
notwithstanding that she resided with her mother. See id.; Motlagh, 100 NE3d at 943-
944 (III). Husband’s contractual obligation arising from the I-864 Affidavit of
Support bound him to support Wife only. See Erler, 824 F3d at 1178 (III) (“The
sponsor would not reasonably expect the obligation of support to be based on a
household that includes the sponsored immigrant or immigrants plus anyone else with
whom the immigrant might choose to live.”) (emphasis in original). As a result, there
is no support in the record, and nothing in the trial court’s order, to suggest that
Wife’s household size was anything other than one for purposes of Husband’s I-864
obligation. See Erler, 824 F3d at 1180 (III) (finding no obligation to support former
wife’s adult son with whom wife lived).
(ii) Amount of Wife’s Income. Next, we consider the trial court’s calculation of
Wife’s income and whether it exceeded 125 percent of the federal poverty guidelines
for a one-person household.
9
Under federal law, an I-864 sponsor must agree “to provide support to maintain
[a] sponsored alien 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[.]” 8 USC
§ 1183a (a) (1) (A). “‘Federal poverty line’ means the level of income equal to the
official poverty line (as defined by the Director of the Office of Management and
Budget, as revised annually by the Secretary of Health and Human Services, in
accordance with [42 USC § 9902] that is applicable to a family of the size involved.”
8 USC § 1183a (h).
Accordingly, “[a] minimum standard or floor is set by [8 CFR] § 213A, i.e.,
125 percent of the Federal Poverty Line for the appropriate family unit size. 8 USC
§ 1183a (a) (1) (A).” Naik v. Naik, 944 A2d 713, 717 (N. J. Super. Ct. App. Div.
2008). Courts have construed this provision
to mean that the sponsor is not necessarily required to pay the sponsored
immigrant 125 percent of the Federal Poverty Guidelines for the
appropriate family unit size. Rather, considering the sponsored
immigrant’s own income, assets and other sources of support, the
sponsor must pay any deficiency in order to meet this minimum level or
floor.
10
Id.; see also Shumye, 555 FSupp2d at 1024 (I) (B) (calculating a sponsor’s annual
support obligation by comparing the sponsored immigrant’s income against the 125%
poverty threshold); Barnett v. Barnett, 238 P3d 594, 598 (IV) (A), n. 13 (Alaska
2010), citing Younis, 597 FSupp2d at 554 (A) (“To determine the appropriate support
due from the sponsor, courts compare the sponsored immigrant’s annual income for
the particular years at issue against the 125% poverty threshold for each particular
year.”) (punctuation omitted).
In this case, the trial court found that Wife’s income totaled $2,610 per month.7
The 2020 Federal Poverty Guidelines, introduced into evidence during the bench trial,
listed 125 percent of the monthly federal poverty guideline for a one-person
household as $1,329. Accordingly, under prevailing case law, Wife was not entitled
to additional support pursuant to Husband’s I-864 obligation because “a sponsor is
required to pay only the difference between the sponsored non-citizen’s income and
the 125% of poverty threshold.” Barnett, 238 P3d at 598 (IV) (A); see also Naik, 944
A2d at 717.
Nevertheless, the trial court “use[d] [its] discretion” to award Wife $1,000 per
month in purported satisfaction of Husband’s I-864 obligation. This was error.
7
The parties have not challenged this figure.
11
Because the I-864 Affidavit of Support represents a contractual obligation by the
sponsor with United States government for the benefit of the sponsored immigrant,
the trial court’s exercise of discretion in this context was inappropriate. Instead,
enforcement of a sponsor’s I-864 obligation is based upon a rather simple formulaic
calculation to determine “the sponsored immigrant’s own income, assets and other
sources of support,” the sponsored immigrant’s household size, and the concomitant
125 percent federal poverty guideline. See Naik, 944 A2d at 717. Put simply, if the
sponsored immigrant’s income is less than the 125 percent federal poverty guideline
for his or her household size, “the sponsor must pay any deficiency in order to meet
[the] minimum level or floor.” Id. It necessarily follows that if the sponsored
immigrant’s income exceeds the relevant federal poverty guideline, additional support
is not warranted.8 See id.; see also Barnett, 238 P3d at 598-599 (IV) (A) (finding “no
authority supporting the proposition that federal law requires a sponsor to pay spousal
support when the sponsored non-citizen’s earned income exceeds 125% of the federal
8
Indeed, even were the trial court authorized to exercise its discretion, the
record does not indicate the manner in which the trial court did so to arrive at the
seemingly arbitrary $1,000 figure. See generally Kim v. Lim, 254 Ga. App. 627, 633
(4) (563 SE2d 485) (2002) (remanding case to the trial court, in part, because “the
trial court denied appellants’ motion . . . without any explanation of the manner in
which it exercised its discretion”).
12
poverty threshold for a household the size of the sponsored non-citizen’s
household”).9
In sum, we conclude that, consistent with multiple federal courts as well as
courts in other states, a sponsor’s obligation to support a sponsored immigrant
pursuant to an I-864 Affidavit of Support is not terminated by either a prenuptial
agreement or the parties’ divorce under Georgia state law. Furthermore, we conclude
that the sponsor of a sponsored immigrant is not required to provide I-864 support if
the sponsored immigrant’s income exceeds the 125 percent federal poverty guideline
for his or her household size; however, if the sponsored immigrant’s income is less
than the relevant federal poverty guideline, the sponsor is required to pay any
deficiency in order to satisfy that minimum level of support. Because the trial court
recognized initially that Husband’s I-864 Affidavit of Support was enforceable
despite the parties’ prenuptial agreement and subsequent divorce, we affirm that
portion of the trial court’s ruling. However, we reverse the trial court’s award of
9
Wife contends that the trial court retains some level of discretion because the
Immigration and Nationality Act contains “no regulations or statutes [that] explain
how to calculate the sponsored immigrant’s income and household size when the
parties have divorced and no longer live together.” However, Wife cites no authority
in support of this novel argument.
13
$1,000 per month to Wife because it was not authorized by federal law in view of the
amount of her monthly income.10
Judgment affirmed in part and reversed in part. Barnes, P. J., and Brown, J.,
concur.
10
We note that, consistent with courts in other states, “[i]f [Wife’s] earned
income falls below 125% of the federal poverty threshold for a family of one before
the occurrence of a terminating event . . ., she may bring suit in state or federal court
to enforce [Husband’s] obligation.” Barnett, 238 P3d at 599 (IV) (A); see also Erler,
824 F3d at 1176 (II), citing 8 USC § 1183a (a) (2) - (3) and 8 CFR § 213a.2 (e) (2)
(i) (terminating events).
14