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Motlagh v. Motlagh

Court of Appeals of Ohio, Second District, Montgomery

November 22, 2017

SAFA MOTLAGH Plaintiff-Appellee
v.
DJALOLIYA MOTLAGH Defendant-Appellant

         Trial Court Case No. 14-LS-15 (Domestic Relations Appeal)

          ROBERT L. MUES, Atty. Reg. No. 0017449, THOMAS G. KOPACZ, Atty. Reg. No. 0091202, Attorneys for Plaintiff-Appellee.

          DALMA C. GRANDJEAN, Atty. Reg. No. 0024841, Attorney for Defendant-Appellant.

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Djaloliya Motlagh appeals from a judgment and decree of divorce entered by the Montgomery County Court of Common Pleas, Domestic Relations Division. Ms. Motlagh contends that the trial court erred with regard to its disposition of her claim for support under 8 U.S.C. 1181 et. seq. She further contends that the trial court erred by requiring her to post a surety bond as a means to ensure that she does not remove the parties' minor daughter from the country. Finally, she claims that the trial court erred by failing to award her attorney fees.

         {¶ 2} We conclude that the trial court did err with regard to the issue of support. We conclude that the trial court did not abuse its discretion by not awarding attorney fees relating to the divorce action, but that the trial court erred by not considering the issue of attorney fees allowed by 8 U.S.C. 1183a(c). We finally conclude that the trial court did not abuse its discretion by ordering Ms. Motlagh to post a surety bond.

         {¶ 3} Accordingly, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings.

         I. Facts and Procedural History

         {¶ 4}In May 2010, Safa Motlagh, a United States citizen, and Ms. Motlagh, a citizen of Tajikistan, met through an internet dating service. After communicating on-line for a period of several months, Mr. Motlagh traveled to Turkey where he and Ms. Motlagh met for a period of about two weeks. The couple became engaged and Mr. Motlagh returned to the United States where he arranged for Ms. Motlagh to obtain a 90-day fiancée visa. As part of that process, he executed an Affidavit of Support, Form I-864, as required by the Immigration and Naturalization Act and 8 U.S.C. 1181 et. seq. Ms. Motlagh entered the United States on July 11, 2011. The parties were married in Yellow Springs, Ohio, on July 23, 2011. They have one minor child as a result of their union.

         {¶ 5} Mr. Motlagh filed a complaint for legal separation on August 27, 2014. Ms. Motlagh filed an answer and a counterclaim for divorce. Mr. Motlagh filed an amended complaint seeking divorce. Temporary orders awarded custody of the child to Ms. Motlagh. Mr. Motlagh was granted the standard order of parenting time, which was later amended to give him one additional Saturday of visitation per month. Mr. Motlagh was also ordered to pay child support in the sum of $900 per month, and spousal support in the sum of $900 per month.

         {¶ 6} A five-day hearing was conducted over the course of several months from October 2015 to August 2016. Of relevance hereto, in the Final Judgment and Decree of Divorce, the trial court ordered that neither party could "travel with or remove the child from the United States of America for any reason." In conjunction with the travel restriction, the court ordered Ms. Motlagh to post a surety bond in the amount of $100, 000 which would be forfeited upon violation of the travel restriction. The Decree also stated that the parties are responsible for their respective attorney fees. With regard to support, the decree stated:

After considering the statutory factors in O.R.C. Section 3105.18(C) and the applicablilty of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 8 U.S.C. Section 1181 et seq., and the terms of the affidavit of support I-864 signed by the Plaintff, the Court orders that Plaintiff shall pay to Defendant as and for spousal support the sum of $900.00 per month effective with the filing of the Final Judgment and Decree of Divorce for a period of twenty-four (24) months. Said spousal support shall be taxable to the Defendant and deductible for tax purposes to the Plaintiff. Said spousal support shall be subject to the Court's continuing jurisdiction as to amount, but not duration. Said spousal support shall terminate upon the death of either party or the remarriage of the Defendant. Further, the Court shall retain concurrent jurisdiction with the federal courts in applying the I-864 contract. After the termination of spousal support, either party has the option of filing a motion with the Court to effectuate the terms of the I-864 contract. Still further, the Court finds that monies paid by Plaintiff to Defendant for all years from 2011 through 2016 and those sums received as gifts, exceed the financial requirements under the I-864 contract and, therefore, Plaintiff has no obligation to pay Defendant any monies for those years. The Court also notes that Plaintiff is obligated to ensure that Defendant's income does not fall below 125% OF THE FEDERAL POVERTY LINE. Plaintiff is not required to pay Defendant 125% of the federal poverty line, but only to act as a safety net to ensure that her overall income does not fall below that level. The two year timeframe during which Defendant would receive spousal support would permit her to procure the necessary skills to obtain employment and would allow her time to pursue her citizenship if she so desires.

         {¶ 7} Ms. Motlagh appeals.

         II. Affidavit of Support

         {¶ 8} Title II, Chapter 2, Act 212 and 213A of the Immigration and Nationality Act of 1952 ("INA") provides that family-sponsored immigrants may not be admitted into the United States unless the person seeking the immigrant's admission executes an Affidavit of Support, or Form I-864. These provisions are codified at 8 U.S.C. 1182 and 1183a. In Shumye v. Fellecke, 555 F.Supp.2d 1020 (N.D. Cal. 2008), the Federal District Court for the Northern District of California set forth the following explanation of the purpose and enforcement of the I-864 Affidavit of Support:

Certain classes of immigrants may be deemed inadmissible including but not limited to, those that may be likely to become a public charge. See 8 U.S.C. § 1182(a)(4). Family-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. See Schwartz v. Schwartz, W.D. Okla. No. CIV-04-770-M, 2005 WL 1242171 (May 10, 2005). 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 U.S.C. § 1182(a).
The express terms of the Form I-864 state that by signing the Form I-864, the sponsor is obligated to provide the sponsored immigrant with whatever support is necessary to maintain the sponsored immigrant at an annual income that is at least 125% of the federal poverty level annual guideline. 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 U.S.C. § 1183a(1)(A). Federal courts have consistently found that a Form I-864 constitutes a legally binding and enforceable contract between sponsor and a sponsored immigrant. Cheshire v. Cheshire, M.D.Fla. No. 3:05-cv-00453-TJC-MCR, 2006 WL 1208010 (May 4, 2006). The terms of the Form I-864 provide for the appropriate "measure of damages that would put plaintiff in as good a position as she would have been had the contract been performed." Stump v. Stump, N.D.Ind. No. 1:04-CV-253-TS, 2005 WL 1290658 (May 27, 2005). A sponsor may also be held liable for legal fees and other costs of collection. See 8 U.S.C. § 1183a(c).
The sponsor's obligation under Form I-864 terminates only if one of five conditions is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. See 8 U.S.C. ยง 1183a(a)(2). Divorce is not a condition under ...

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