Moody v. Sorokina, I-864 Affidavit of Support Enforced in Divorce Proceedings

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1657
CA 05-00722
PRESENT: SCUDDER, P.J., MARTOCHE, CENTRA, AND PINE, JJ.
JOHN MOODY, PLAINTIFF-RESPONDENT,
V OPINION AND ORDER
SVETLANA SOROKINA, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
SVETLANA SOROKINA, DEFENDANT-APPELLANT PRO SE.
SCOLARO, SHULMAN, COHEN, FETTER & BURSTEIN, P.C., SYRACUSE (SHARI R.
COHEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
EUGENE J. LANGONE, JR., LAW GUARDIAN, WATERTOWN, FOR N.M.
Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered February 25, 2005 in a divorce action. The order, among other things, awarded the parties joint custody of their child with primary placement with plaintiff and visitation with
defendant.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified in the exercise of discretion and on the law by awarding defendant the sum of $8,000 as equitable distribution of the parties’ 2001 Jeep Grand Cherokee and as modified
the order is affirmed without costs, and the matter is remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the following Opinion by PINE, J.:

I

Defendant is a Ukranian national who emigrated to the United States in order to marry plaintiff, and the parties were married in the United States in June 1999. In July 1999 plaintiff executed a federal affidavit of support, Form I-864, in which he agreed, inter
alia, to support defendant at or above 125% of the federal poverty line until the occurrence of a qualifying terminating event. The parties had a child in November 2001, and in May 2002 plaintiff obtained an ex parte temporary order of custody and a temporary Family Court order of protection requiring defendant to stay away from plaintiff and the child. Also in May 2002 plaintiff commenced a divorce action against defendant. Family Court transferred the custody matter to Supreme Court to be addressed in the context of the pending divorce action. A judgment of divorce was entered in October
2004, but the issues of custody, maintenance, support pursuant to the
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federal affidavit of support and equitable distribution were not addressed in that judgment. Following separate trials on custody and the economic issues, Supreme Court issued an order that, inter alia, granted the parties joint custody of the child, with primary physical placement to plaintiff, and determined the issues of maintenance,
support pursuant to the federal affidavit of support and equitable distribution.
We note at the outset that the amended order in appeal No. 2 merely corrected references to the parties, and thus defendant’s appeal from the amended order should be dismissed (see Matter of Kolasz v Levitt, 63 AD2d 777, 779). One of defendant’s contentions on
appeal is that the court erred in determining that defendant was not entitled to seek enforcement of the federal affidavit of support. This contention raises an issue of first impression at the appellate level in New York and, for the reasons that follow, we agree with defendant.
II
Family-sponsored immigrants such as defendant are generally considered “ineligible to be admitted to the United States” unless the immigrant has obtained the status of a spouse or other acceptable classification and “the person petitioning for the alien’s admission .
. . has executed an affidavit of support described in section 1183a” (8 USC § 1182 [a] [4] [C] [ii]; see § 1182 [a] [4] [C] [i]; Cheshire v Cheshire, 2006 WL 1208010, *2 [MD Fla]; Gallagher, Immigration Law- Basics and More: Grounds of Inadmissibility, American Law Institute- American Bar Association Continuing Legal Education, May 6, 1999, SD61
ALI-ABA 265, 277). Before the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) (Pub L No. 104-208, 110 Stat 3009-546), which amended Immigration and Nationality Act (INA) §213A, the affidavit of support was Form I-134. That affidavit was held not to constitute a legally enforceable contract against a sponsor by a sponsored immigrant (see Cheshire, 2006 WL 1208010, *2; Tornheim v Kohn, 2002 WL 482534, *3-5 [ED NY]). The IIRIRA, however, “instituted a legally enforceable affidavit of support for most family[-]based immigrant visa applications” (Notkin, 30th Annual Immigration and Naturalization Institute: The New Affidavit of
Support, Practising Law Institute, Oct 1997, 1021 PLI/Corp 309, 311). The new affidavit of support is Form I-864 (see Sheridan, The New Affidavit of Support and Other 1996 Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Becoming Public Charges, 31 Creighton L Rev 741, 752). Pursuant to 8 USC § 1183a (a)
(1), “[n]o affidavit of support may be accepted by the Attorney General . . . unless such affidavit is executed by a sponsor of the alien as a contract -- “(A) in which the sponsor agrees to provide
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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; “(B) that is legally enforceable against the sponsor by the sponsored alien . . .; and “(C) in which the sponsor agrees to submit to the jurisdiction of any Federal or State court for the purpose of actions brought under subsection (b) (2) of this section[, i.e., actions ‘to compel reimbursement’]” (emphasis added). Pursuant to section 1183a (e) (1), an action to enforce an affidavit of support may be brought in “any appropriate court . . . by a sponsored [immigrant], with respect to financial support . . . .” Thus, the statute expressly permits the sponsored immigrant to bring an action for enforcement of the affidavit of support against the sponsor in any federal or state court (see 8 USC § 1183a [a] [1] [B]; INA § 213A [a] [1] [B]; see also von Sternberg, 31st Annual Immigration & Naturalization Institute: Summary of New Affidavit of Support Requirements, Practising Law Institute, Oct 1998, 1080 PLI/Corp 309, 312; Sheridan, 31 Creighton L Rev at 761; Notkin, 1021 PLI/Corp at 314-315). The enforceability of the affidavit terminates
when, inter alia, the sponsored immigrant “has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act [42 USC § 401 et seq.]” (8 USC § 1183a [a] [3] [A] [i]). In accordance with 8 USC § 1183a a sponsor is required to sign
Form I-864, which provides in relevant part: “I understand that, under section 213A of the
[INA], as amended, this affidavit of support constitutes a contract between me and the U.S. Government. This contract is designed to protect the United States Government, and State and local government agencies or private entities that provide means-tested public benefits, from having to pay benefits to or on behalf of the sponsored immigrant(s), for as long as I am obligated to support them under this affidavit of support. I understand that the sponsored immigrants . . . are entitled to sue me if I fail to meet my obligations under this affidavit of support, as defined by section 213A and [Immigration and Naturalization Service] regulations. “. . . “I acknowledge that section 213A (a) (1) (B) of the [INA] grants the sponsored immigrant(s) . . . standing to sue me for failing to meet my obligations under this affidavit of support. I
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agree to submit 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 this affidavit of support. “. . .
“I acknowledge that a plaintiff may seek specific performance of my support obligation . . . [and that] I may also be held liable for costs of collection, including attorney fees.” The cases that have addressed the enforceability of the Form I- 864 affidavit of support by the sponsored immigrant have found that the form is a legally enforceable contract and that the sponsored immigrant “has independent standing to enforce the sponsor’s obligation” in any federal or state court (Davis v Davis, 2004 WL 2924344, *3 [Ohio App 6 Dist]; see Cheshire, 2006 WL 1208010, *3; Stump v Stump, 2005 WL 1290658, *4-5 [ND Ind]; Schwartz v Schwartz, 2005 WL 1242171, *1-2 [WD Okla]; Ainsworth v Ainsworth, 2004 US Dist LEXIS 18961, *1-2 [MD La]; see also Tornheim, 2002 WL 482534, *3-5). Courts have also held that the sponsored immigrant’s right to support under the Form I-864 affidavit of support is unaffected by a judgment of divorce (see Cheshire, 2006 WL 1208010, *4-5; Schwartz, 2005 WL 1242171, *2; Muir v Muir, 2002 WL 1837964, *3 [CT Super Ct];
Ainsworth, 2004 US Dist LEXIS, *1). We therefore conclude that the court erred in determining that defendant was not entitled to seek enforcement of the federal
affidavit of support on the grounds that the statute was for public benefit only and did not afford defendant a private cause of action.
III
We now address defendant’s remaining contentions on this appeal. Although defendant raises multiple challenges to the temporary orders issued by Family Court, we conclude that those challenges are not properly before this Court. Contrary to defendant’s contention, those nonfinal orders did not necessarily affect the final order before us on this appeal, i.e., the order in appeal No. 1 (see CPLR 5501 [a] [1]; Matter of Cicardi v Cicardi, 263 AD2d 686). In any event, any challenge to those temporary orders has been rendered moot because
they have expired by their terms and have been superseded by the order before us in appeal No. 1 (see Kelly v Kelly, 19 AD3d 1104, 1107, appeal dismissed 5 NY3d 847, rearg denied and lv dismissed and denied 6 NY3d 803; Connolly v Connolly, 48 AD2d 875). Because the order before us followed a full trial of the divorce action in Supreme Court, defendant has received due process (see generally Matter of Harner v County of Tioga, 5 NY3d 136, 140), and there was no violation of Judiciary Law § 21 (cf. Matter of Connelly-Logal v West, 272 AD2d 920; Michel v Michel, 31 AD2d 313, 314-315). Contrary to defendant’s
further contentions, there is no evidence that the court abused its

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discretion in determining that defendant was not in need of an interpreter (see generally Matter of Mercure, 27 AD3d 857, 858), nor did the court exceed its authority in requiring defendant to surrender her Ukranian passport during her periods of visitation with the
parties’ child (see Anonymous v Anonymous, 120 AD2d 983, appeal dismissed 68 NY2d 808; Kresnicka v Kresnicka, 42 AD2d 607). We reject defendant’s contentions that the court abused its discretion in admitting certain expert testimony and in refusing to admit other expert testimony. The admissibility and scope of expert testimony rests within the sound discretion of the trial court (see De Long v County of Erie, 60 NY2d 296, 307). “ ‘[A] witness may testify as an expert if it is shown that he [or she] is skilled in the profession or field to which the subject relates, and that such skill was acquired from study, experience, or observation’ ” (Karasik v Bird, 98 AD2d 359, 362; see Matott v Ward, 48 NY2d 455, 459). Plaintiff established that his medical expert possessed “the requisite
skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (Matott, 48 NY2d at 459). Defendant’s purported expert, however, admitted that she was “not a medical expert” and that she had not reviewed the documents relating to the child’s medical conditions.
Based on the evidence adduced with respect to custody and in view of the great deference accorded the custody determination of the trial court, we conclude that the court’s custody determination is in the best interests of the child (see generally Eschbach v Eschbach, 56 NY2d 167, 173). Contrary to the contention of defendant, the court did not infringe upon her fundamental right to make decisions affecting her child. Defendant’s reliance upon cases addressing the rights of a parent as against a nonparent with respect to decisions concerning a child is misplaced because here we are concerned with the
decision-making rights of the two parents. With respect to the maintenance and equitable distribution awards, we note that, although such awards generally are left to the sound discretion of the trial court (see Smith v Smith, 306 AD2d 908, 909; Boughton v Boughton, 239 AD2d 935), the authority of this Court is as broad as that of the trial court with respect to such awards (see Wipperman v Wipperman, 277 AD2d 1040, 1041; Marino v Marino, 229 AD2d 971, 972). We see no basis to disturb the maintenance award but, in the exercise of our discretion, we conclude with respect to the equitable distribution award that defendant should be awarded the sum of $8,000, representing one half of the value of the parties’ 2001 Jeep Grand Cherokee as of the date of the trial.

IV

Accordingly, in the exercise of our discretion, we conclude that the order in appeal No. 1 should be modified by awarding defendant the sum of $8,000 as equitable distribution of the parties’ 2001 Jeep Grand Cherokee, and the matter should be remitted to Supreme Court to enforce the federal affidavit of support executed by plaintiff. We further conclude that the appeal from the amended order in appeal No.

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2 should be dismissed.

Entered: February 2, 2007 JOANN M. WAHL
Clerk of the Court

Iannuzzelli v. Lovett - Attorney Fees on Enforcement of I-864 Affidavit of Support

Third District Court of Appeal
State of Florida, January Term, A.D. 2008
Opinion filed May 7, 2008.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D07-902
Lower Tribunal No. 05-33257
________________
Maria Iannuzzelli,
Appellant,
vs.
Daniel F. Lovett,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Judith L. Kreeger, Judge.
Austin & Laurato and Michael Vincent Laurato (Tampa), for appellant.
Weiss & Kahn and Owen E. Kahn, for appellee.
Before RAMIREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
SALTER, J.
This appeal from rulings in a circuit court dissolution of marriage action involves the relationship between well-settled state law and a federal “affidavit of support” required when foreign citizens marry sponsors in the United States and seek naturalization here. Appellant, Maria Iannuzzelli, is the (now) former wife and immigrant, and Daniel Lovett is the former husband and Ms. Iannuzzelli’s U.S. sponsor.
We find that the trial court correctly applied the applicable Florida and federal laws, and we therefore affirm the orders below. Because of the novel legal issues, we describe the immigration affidavit and its application in a Florida dissolution of marriage proceeding.
The Federal Affidavit of Support
Ms. Iannuzzelli is an immigrant to the United States. In 2004, she married Mr. Lovett, a U.S. citizen. Shortly thereafter, Mr. Lovett petitioned the U.S. Citizenship and Immigration Services for Ms. Iannuzzelli to attain lawful permanent U.S. residency. As part of the family-based application process, Mr. Lovett was required to execute a federal Form I-864 Affidavit of Support (the “Affidavit”). 8 U.S.C. § 1183a (2004). In the Affidavit, Mr. Lovett promised to support Ms. Iannuzzelli at a minimum of 125% of the federal poverty level during
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the period that the Affidavit is enforceable.1 The Affidavit is fully enforceable by the sponsored immigrant, the U.S. Government, or state or local administrators of means tested benefit programs, in “any appropriate court,” 8 U.S.C. § 1183a(e), and its enforceability survives divorce. Schwartz v. Schwartz, No. CIV-04-770-M, 2005 WL 1242171, at *2 (W.D. Okla. May 10, 2005). Although the Affidavit is between the sponsor of the immigrant and the federal government, the immigrant can bring an action to enforce the Affidavit, and the federal law provides remedies available to a person seeking its enforcement. 8 U.S.C. §1183a(c). Among other remedies, the provision incorporates an award of attorney’s fees and costs associated with the collection process under the Affidavit.
The Florida Dissolution Action
The marriage between Ms. Iannuzzelli and Mr. Lovett lasted approximately one year. The couple acquired no property and had no children. During the pendency of the dissolution proceeding, Ms. Iannuzzelli sought enforcement of the Affidavit against Mr. Lovett. The circuit court acknowledged the enforceability of the Affidavit and granted Ms. Iannuzzelli’s motion for partial summary judgment on the issue of liability. The trial court declined, however, to grant Ms. Iannuzzelli
1 The provision was added to the immigration statutes in 1996 in an effort to assure that immigrants would not become a “public charge” eligible for various government benefits. The affiant/sponsor assures the government and the sponsored immigrant that the immigrant’s income will be sufficient to preclude eligibility for those benefits. See Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 1290658, at *9 (N.D. Ind. May 27, 2005). 3
damages under the Affidavit. Rather, the court awarded Ms. Iannuzzelli a lump-sum alimony award of $9000, pursuant to chapter 61, Florida Statutes (2007).2 The court then denied Ms. Iannuzzelli’s request for over $23,000 in attorney’s fees and costs, and this appeal followed.
The standard of review for an award or denial of attorney’s fees in a Florida dissolution of marriage proceeding is abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). However, the court’s determination that Ms. Iannuzzelli did not have a separate entitlement to attorney’s fees and costs under the federal provision and Affidavit is a question of law subject to de novo review. See BellSouth Telecomm., Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003).
Analysis
I. Claim for Attorney’s Fees Under Section 61.16, Florida Statutes
The circuit court denied Ms. Iannuzzelli attorney’s fees and costs pursuant to section 61.16, Florida Statutes (2007). Based on the evidence presented, the court found that, while Ms. Iannuzzelli did have a need for attorney’s fees, Mr. Lovett did not have the ability to pay.
A trial court has broad discretion when determining whether attorney’s fees and costs should be awarded in a dissolution proceeding. See Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). The record supports the trial court’s findings
2 This “bridge-the-gap” alimony was estimated based on the former wife’s rent and living expenses for three months.
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regarding Ms. Iannuzzelli’s need and Mr. Lovett’s ability to pay. Moreover, the marriage was of short duration and the couple had no assets to distribute. The only alimony awarded was in the form of a lump-sum $9000 award, which Ms. Iannuzzelli concedes was awarded “based on equitable principles.” Under these facts, the court did not abuse its discretion by denying Ms. Iannuzzelli attorney’s fees and costs pursuant to section 61.16.
II. Claim for Attorney’s Fees Under 8 U.S.C. § 1183a
Ms. Iannuzzelli argues that even if attorney’s fees and costs were not awardable under state law, she is entitled to them under federal law, liability having been established under the Affidavit. She asserts that 8 U.S.C § 1183a(c), which describes “available” remedies for the enforcement of an affidavit of support, mandates an award of attorney’s fees and costs. We disagree. The federal statute provides:
(c) Remedies
Remedies available to enforce an affidavit of support under this section include any or all of the remedies described in section 3201, 3203, 3204, or 3205 of Title 28, as well as an order for specific performance and payment of legal fees and other costs of collection, and include corresponding remedies available under State law.
8 U.S.C. § 1183a(c) (emphasis added). Further, the Affidavit signed by Mr. Lovett contains this provision:
Collection of Judgment. 5
I acknowledge that a plaintiff may seek specific performance of my support obligation. Furthermore, any money judgment against me based on this affidavit of support may be collected through the use of a judgment lien . . . . I may also be held liable for costs of collection, including attorney fees.
INS Form I-864 (Rev. 11/05/01) Y Page 6 (emphasis added). Read together, the clear connotation of these provisions is that attorney’s fees and costs may be awarded for the cost of collection of damages under the Affidavit, but only when a money judgment has been obtained. Moreover, the plain meaning of “collection” is “the act of collecting (as taxes by a tax collector).” Webster’s Third New International Dictionary 444 (unabridged ed. 1986); see also Bryan A. Garner, A Dictionary of Modern Legal Usage 170 (2d ed. 1995) (noting that the term “collect” is used loosely and is typically read to mean “being awarded”). This interpretation is consistent with Florida law on awards of attorney fees and costs. See Tacher v. Mathews, 845 So. 2d 332 (Fla. 3d DCA 2003) (interpreting “judgment” to mean the actual recovery of damages, and determining that an award of zero damages is equivalent to a defense judgment; thus holding that the party who obtained the zero damage judgment was not entitled to attorney fees and costs as the “prevailing party,” pursuant to section 57.041, Florida Statutes (2003)).
Although Mr. Lovett was found liable on the Affidavit, Ms. Iannuzzelli did not “collect” any damages, as provided by the federal law. Cf. Tacher, 845 So. 2d at 835 (stating that although the defendant was found liable to the plaintiff, the
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defendant owed “no obligation” to the plaintiff). In order to recover attorney’s fees and costs under 8 U.S.C. § 1183a(c), the claimant must obtain a judgment for actual damages based upon the opposing party’s liability under the Affidavit. A finding of liability, without more, is insufficient.
Conclusion
Ms. Iannuzzelli properly conceded in her motion for attorney’s fees and costs that “[a]t the trial of this cause, it was determined that [she] was unable to prove that she has been unable to sustain herself at 125% of the poverty level since her separation from the marriage.” As a result, she was not awarded any damages under the Affidavit or the applicable federal statute, and the trial court properly denied an award of attorney’s fees and costs under the Affidavit and federal statute.
This opinion does not alter the enforceability of the Affidavit, or Mr. Lovett’s liability to Ms. Iannuzzelli under the Affidavit, should her post-trial circumstances warrant later enforcement.3 Nor does it affect Ms. Iannuzzelli’s right to claim and recover attorney’s fees and costs in the future, if Ms. Iannuzzelli alleges and proves future damages under the Affidavit. We only hold that on the
3 Ms. Iannuzzelli would have to claim and prove, within the effective term of the Affidavit, the amount by which her income fell short of 125% of the poverty level. Such claims are essentially breach of contract claims and may be subject to an affirmative defense of “failure to mitigate” if the claimant intentionally avoids employment. Stump, 2005 WL 2757329, at *7.
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record before us, the trial court ruled correctly that Ms. Iannuzzelli was not entitled to attorney’s fees and costs under section 61.16, Florida Statutes, the Affidavit, or 8 U.S.C. § 1183a(c).
Affirmed.
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