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WHAT’S LOVE GOT TO DO WITH SUPPORTING AN IMMIGRANT SPOUSE?

Posted in Support

In December, 2011 a panel of the Superior Court decided Love v. Love. 33 A.3d 1268 (2011). This was a Philadelphia County support action wherein Wife came to the United States with husband’s child.  The child was born in 2003.  The husband and wife married in 2005 and the application for immigration appears to have been processed in 2008.  Shortly after Wife was admitted to the United States the couple separated and Wife began an action for support.

The trial court heard the case and decided that upon consideration of the earnings and earning capacity of all parties, Wife was entitled to support of $622 for the child and $323 for the child.  Wife appealed asserting that, among other things, upon her admission to the United States husband had executed an affidavit under the Immigration and Nationality Act (8 U.S.C. 1183a) by which he committed to support Wife at a level equal to $125% of the Federal Poverty Guideline rate.  That statute references Form I-864 wherein a person seeking to bring an alien into the U.S. or to seek a change in status for the alien creates a contract with the United States government by which the alien can sue for support equivalent to the 125% rate. In 2011, the rate for a household of one was $13,613 and for two it was $18,388. The support order in this case was significantly less than this amount; thus the appeal by wife.

 

The trial court found this obligation was contractual and therefore outside the scope of Pennsylvania support laws.  This was not to state that Wife could not enforce this contract; just that it was not cognizable under Pennsylvania support laws which permit very draconian remedies (e.g., imprisonment, loss of licenses, seizure of bank accounts etc) for non-compliance with a support order.

 

The Superior Court heard this appeal and reversed with instructions to amend the order to the amount required under the “contract” with the Immigration and Naturalization Service.  The ruling contains some fascinating observations not all of which tie firmly with existing law.

In this case the Superior Court relied upon a statute from the Divorce Code. 23 Pa. C.S. 3105.  It provides that where the parties reach an agreement “within the jurisdiction of the court under this part” the Agreement has the effect of being a court order in its own right.  Curiously, however, as the dissent notes, this action was not initiated under “this part” of the Domestic Relations law-specifically the divorce law (called Part IV) in the statute) but under a different part- the support law (called Part V).

 

Another curiosity is the treatment of earning capacity.  It is well established that in deciding support rights under Pennsylvania support law, courts look not only to the actual earnings of the parties but their earning capacities. In this case, the appellate court implies that the affidavit trumps the support law in cases involving immigrants only.  The opinion states: “We conclude that an immigrant spouse’s earning capacity should not be reapplied to offset the sponsor’s financial obligation.”  The court finds that mitigation is an “affirmative defense” that must be pled and proved even though the support rules do not mandate an answer or refer to affirmative defenses being pled.  The conclusion is that in support court only non-citizens may have an advantage because only their actual income will be considered.  

 

The dissent notes that much of this ruling contravenes well established Pennsylvania law and precedent. It suggests that a separate action in contract be initiated although the contract in this case is between the United States and the husband and third party beneficiary rights in a domestic relations setting have been somewhat difficult to enforce.  Chen v. Chen 893. A.2d 87 (Pa. Supreme 2006).[1] Suffice to say that this is a new branch of domestic relations proceedings and one which may trigger more appellate law refining it.  For example, if the sponsor was not the spouse but a parent or employer, is this action cognizable as support?  Can an immigrant plaintiff sue a sponsor and a spouse at the same time for support; one under the INS law and the other under Pennsylvania law?


[1] Chen decided that a child must be specifically designated as an intended beneficiary to maintain third party status to sue. It would appear from the language of Form I-864 that wife in this case would have that status. (“that person may sue you for this support”)