Opinion
HHDFA1652043262S
12-15-2017
Felix STEWART v. Grace Martin STEWART
UNPUBLISHED OPINION
OPINION
Robert Nastri, Jr., Judge
This action for dissolution of marriage was brought by writ of summons and complaint dated October 27, 2016, and returned to court on November 29, 2016. The court heard testimony on December 6, 2017. The parties, who were represented by counsel, testified and introduced exhibits. In addition, the defendant introduced testimony from Denzel Furze, the plaintiff’s coworker, and Lornette Furze, the defendant’s long-time, close friend.
FINDINGS OF FACT
The court finds all facts by a preponderance of the evidence presented. The court has listened carefully to the witnesses and assessed their credibility. " It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of the witnesses ... It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped ... to assess the circumstances surrounding the dissolution action." (Emphasis in original; citation omitted; internal quotation marks omitted.) Rubenstein v. Rubenstein, 107 Conn.App. 488, 497, 945 A.2d 1043, cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008).
The parties were introduced telephonically by the plaintiff’s coworker, Darnel Furze, in 2010. At the time, the plaintiff lived in Connecticut and the defendant lived in Jamaica. The defendant, a native of Jamaica, was a close friend of Mr. Furze’s wife, Lornette. After a long-distance courtship that involved many telephone calls and at least one visit, the parties married in Jamaica, West Indies, on April 9, 2011.
Because the defendant was unable to obtain a visa to travel to the United States, she remained in Jamaica after the marriage. The plaintiff eventually executed a Form I-864 titled " Affidavit of Support Under Section 213A of the INA" (affidavit) pursuant to § 213A of the Immigration and Nationality Act, 8 U.S.C. § 1183a. The defendant was able to use the affidavit to obtain lawful permanent resident status and legally enter and remain in the United States. The defendant, however, did not arrive in the United States and take up residence with the plaintiff until March 5, 2015, nearly four years after the marriage began.
The parties began to quibble almost immediately. The plaintiff suspected the defendant of infidelity with Mr. Furze. The plaintiff also reached the conclusion that the defendant had married him so that she could gain admittance to the United States. There was scant evidence to support either belief.
When the plaintiff learned that the defendant and Mr. Furze had visited his tax preparer to find out how much the parties’ 2015 tax refund would be and told the tax preparer to keep their inquiry confidential, the plaintiff considered it an act of betrayal. In February 2016, the plaintiff told the defendant he wanted a divorce. The plaintiff was unable to afford a divorce until December 2016, so the two continued to live together.
The plaintiff moved out of the marital home in December 2016, and the parties have been living separately ever since. Neither party offered any evidence about the marital home.
Each party claimed to have sent money to the other before the defendant arrived in the United States in 2015. Neither party offered any evidence of the payments.
No children were issue of the marriage and the defendant is not pregnant. The plaintiff has a child from a previous relationship. He pays child support of $132 per week for that child by way of an automatic wage withholding order.
The parties have no assets and no joint debt. The defendant’s proposed orders ask the court to remove her from the plaintiff’s car financing loan and automobile insurance obligations. The plaintiff testified that the defendant is not obligated for either. The defendant did not introduce any evidence regarding the automobile loan or insurance.
The plaintiff borrowed $1,000 from Denzel and Lornette Furze to help the defendant get to the United States.
The parties filed joint federal and state tax returns for 2015. In the first quarter of 2016, they received a refund of $3,274 from their 2015 federal tax return and $1,088 from their 2015 state tax return. The plaintiff used the money to repay the $1,000 to Denzel and Lornette Furze, pay their tax preparer, and then applied the balance for rent and other living expenses. The defendant complained that the plaintiff did not give her any of the refund but did not dispute that he used the money for joint obligations. The defendant did not provide the court with any evidence regarding what portion of the refund could be attributed to her income.
The plaintiff has a retirement vehicle that he testified is a " 401(b)" plan with a balance of approximately $13,000. That retirement vehicle, however, is listed on his financial affidavit as a " 403C" plan with a balance of $13,040. Although the defendant made a claim for a portion of the retirement vehicle, she did not introduce any evidence regarding the marital portion of the vehicle.
The plaintiff is presently fifty-one years old and in moderate health. He suffers from diabetes, vertigo, and blood clots. The plaintiff works as a cook at a retirement home, earning a net weekly income of $380.25. He has a high school education.
The plaintiff’s net weekly income was calculated by taking into account a $132 wage garnishment for a consumer debt.
The defendant is presently fifty-three years old and also in moderate health. She is a borderline diabetic, and suffers from back pain and heart palpitations. She works as a companion for the elderly, earning a net weekly income of $341.42. The defendant provided the court with no testimony about her education.
The plaintiff lived in Connecticut for at least twelve months before he filed this action.
The court has jurisdiction in this matter.
All statutory stays have expired and the court is free to enter a judgment of dissolution of marriage.
The allegations of the complaint are proven and true.
The marriage has broken down and cannot be repaired.
Neither party is more at fault for the failure of the marriage than is the other.
The state of Connecticut has not contributed to the support of either party.
ANALYSIS
The court applies all relevant law. The court also unseals all financial affidavits and takes judicial notice of all pleadings in the court’s file.
The purpose of the statutory construct that created Form I-864 is to prevent an immigrant from becoming a public charge after admittance to the United States. See 8 U.S.C. § 1183a(a)(1)(A). The affidavit created a contractual obligation for the plaintiff to support the defendant at or above 125 percent of the federal poverty line, pursuant to 8 U.S.C. § 1183a(h). The federal poverty line is 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 section 9902(2) of title 42) that is applicable to a family of the size involved." 8 U.S.C. § 1183a(h).
Contrary to the plaintiff’s argument, the obligation created by the affidavit may be enforced by the defendant against the plaintiff in any appropriate court. 8 U.S.C. § 1183a(e)(1). By executing the affidavit, the plaintiff became the defendant’s sponsor. 8 U.S.C. § 1183a(f)(1). As the defendant’s sponsor, the plaintiff agreed to submit to the jurisdiction of any state or federal court. 8 U.S.C. § 1183a(a)(1)(C). The obligation created by the affidavit is " independent of spousal support and survives divorce." Love v. Love, 33 A.3d 1268, 1273, 2011 P.A. Super. 268 (2011). A dissolution of marriage judgment does not terminate the obligation created by execution of Form I-864. See Liu v. Mund, 686 F.3d 418, 422-23 (7th Cir. 2012).
Federal law provides five circumstances under which a sponsor’s support obligation can terminate. See 8 U.S.C. § 1183a(a)(2)-(3); 8 C.F.R. § 213a.2(e)(2)(i). Divorce is not one of them. The affidavit warns " Divorce does not terminate your obligations under Form I-864." (Emphasis in original.) Affidavit, Plaintiff’s Exhibit A, p. 8 .
The defendant is the only person living in her household for purposes of determining compliance with the minimum support level for a supported immigrant. One hundred twenty-five percent of the federal poverty line for a household with one family member equates to a weekly income of $290. Annual Update of the HHS Poverty Guidelines, Federal Register, Vol. 82, No. 19, January 31, 2017, pp. 8831-32.
The defendant’s net weekly income of $341.42 is not less than 125 percent of the federal poverty line in the circumstances of this case.
Several courts have adopted the Superior Court of New Jersey’s approach to reconciling the obligations created by Form I-864 with state spousal support obligations. In Naik v. Naik, 399 N.J.Super. 390, 398, 944 A.2d 713 (2008), the court found that the sponsor’s obligation to provide support to the immigrant pursuant to the affidavit does not exist until the immigrant’s income falls below 125 percent of the federal poverty line. " If the sponsored immigrant’s sources of support exceed this level, then no Form I-864EZ support is mandated by the INA." Id., 399. The sponsor’s support obligation is to bridge the gap between the sponsored immigrant’s sources of support and the federal poverty guideline amount. Id. See also Love v. Love, supra, 33 A.3d 1275-76; Barnett v. Barnett, 238 P.3d 594, 598-99 (Alaska 2010); Younis v. Farooqi, 597 F.Supp.2d 552, 556 (D.Md. 2009); Shumye v. Felleke, 555 F.Supp.2d 1020, 1024 (N.D.Cal. 2008); cf. In re Marriage of Khan, 182 Wash.App. 795, 802-04, 332 P.3d 1016 (Wash.Ct.App. 2014).
Because the defendant’s sources of support in the present case exceed 125 percent of the federal poverty line, it is unnecessary for this court to enforce the plaintiff’s obligations pursuant to Form I-864. Naik v. Naik, supra, 399 N.J.Super. 398-99.
ORDERS
In accordance with the findings enumerated above, and in consideration of the various statutory criteria the court employs in entering a judgment of dissolution, the court hereby orders:
The plaintiff shall pay alimony to the defendant in the amount of $40 per week for a period of eighteen months. The purpose of alimony in this instance is to provide support for the defendant while she acclimates to her new circumstances, secures appropriate living arrangements, obtains suitable employment, and establishes self-sufficiency. " The particular length of time needed for alimony can sometimes be established by predicting when future earnings, based on earning capacity as known at the time of the dissolution, will be sufficient for self-sufficiency." Cooley v. Cooley, 32 Conn.App. 152, 165, 628 A.2d 608, cert. denied, 228 Conn. 901 (1993). " [R]ehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency." Kovalsick v. Kovalsick, 125 Conn.App. 265, 271-72, 7 A.3d 265 (2010); see also Bornemann v. Bornemann, 245 Conn. 508, 539, 752 A.2d 978 (1998).
Alimony shall terminate upon the death of either party or the defendant’s remarriage. Alimony shall be modifiable upon the defendant’s cohabitation as described in General Statutes § 46b-86(b). Each party shall immediately notify the other of any change in his or her living arrangements, employment status, or the receipt of social security disability benefits. The receipt of such disability benefits shall be a basis for modification of the alimony award.
General Statutes § 46b-82 regarding alimony, mirrors § 46b-81(c) with the exception of the last two provisions. Section 46b-82 directs the court when awarding alimony to consider " the award, if any, which the court may make pursuant to section 46b-81 ..." The court therefore, will apply the statutory criteria to the facts of this case, recognizing that equal weight need not be given to any one factor. See Horey v. Horey, 172 Conn.App. 735, 741, 161 A.3d 579 (2017).
Except as specifically provided herein, the parties shall retain the assets listed on their financial affidavits, free from any claim by the other, with the right to change beneficiaries or hypothecate those assets as they may otherwise deem appropriate.
The plaintiff shall be solely liable for all debts and liabilities as listed on his financial affidavit or in his sole name, and shall hold the defendant harmless and indemnify her from said debts and liabilities.
The defendant shall be solely liable for all debts and liabilities as listed on her financial affidavit or in her sole name, and shall hold the plaintiff harmless and indemnify him from said debts and liabilities.
If, in the future, there is discovered a debt that through the parties’ mutual mistake has not been divided pursuant to this judgment, and the debt accrued during the term of the marriage or went to the accumulation of marital property, the parties shall share equally in the costs of repayment of the debt, including all principal, interest, and penalties. If, however, one party incurred the debt without the other party receiving any benefit, then the party incurring the debt, regardless of who is legally liable under the debt contract, shall be wholly responsible for its payment in full, including all principal, interest, and penalties.
The parties shall keep their own bank accounts as listed on their most recent financial affidavits, free and clear of any claim by the other party.
The parties shall be responsible for their own attorneys fees.
The parties shall be responsible for their own health insurance.
JUDGMENT
The court orders the marriage dissolved on the ground of irretrievable breakdown and declares the parties single and unmarried. The foregoing findings are incorporated into the judgment.