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Akers v. Akers

Court of Appeals of Ohio, Tenth District

December 28, 2017

Gregory T. Akers, Plaintiff-Appellant,
v.
Xuchen Akers, Defendant-Appellee.

         APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations No. 14DR-3610

         On brief:

          Jeffrey P. Nunnari, for appellant.

         Argued:

          Jeffrey P. Nunnari

         On brief:

          Mohammad Slaimon Ayoubi and Mark S. Froehlich, for appellee.

         Argued:

          Mohammad Slaimon Ayoubi and Mark S. Froehlich.

          DECISION

          HORTON, J.

         {¶ 1} Plaintiff-appellant, Gregory T. Akers, appeals from the decision of the Franklin County Court of Common Pleas, Division of Domestic Relations, ordering him to pay defendant-appellee, Xuchen Akers, $14, 937 based on a contractual obligation of support arising under federal law as a condition of sponsoring her permanent residency application. For the reasons set forth below, we affirm the enforceability of the obligation, but reverse and remand the trial court's determination of the period during which it accrued and, as a result, the amount of damages that Xuchen is entitled to recover.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         {¶ 2} Gregory and Xuchen were married in Beijing, China on March 15, 2005. (Nov. 16, 2015 Stipulation.) Xuchen moved to the United States in July 2006. (July 28, 2015 Pl.'s Aff. at ¶ 3, Ex. A attached to Pl.'s Reply to Def.'s Mot. in Opp.) To sponsor Xuchen's permanent residency application, Gregory signed the United States Citizenship and Immigration Services Form I-864, an Affidavit of Support ("AOS"), on June 1, 2007. (Ex. A-1 to Pl.'s Aff.)

         {¶ 3} The AOS states that signing the form on behalf of an immigrant and submitting it with the immigrant's permanent residency application has the legal effect of creating a contract between the sponsor and the United States Government. (Ex. A-1 at 6.) "The intending immigrant's becoming a permanent resident is the 'consideration' for the contract." Id. The AOS creates an obligation on the part of the sponsor to "[p]rovide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size" until one of five conditions is fulfilled. (Ex. A-1 at 6.) The obligation ends if the immigrant (1) becomes a United States citizen; (2) has worked, or can be credited with working, 40 quarters of coverage under the Social Security Act; (3) no longer is a permanent resident and leaves the United States; (4) is subject to removal proceedings and obtains a new AOS; or (5) dies. (Ex. A-1 at 7.) The AOS form expressly warns the sponsor that "[i]f you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864, that person may sue you for this support." Id.

         {¶ 4} Gregory filed for divorce on October 3, 2014. (Oct. 3, 2014 Compl.) Xuchen filed an answer on December 8, 2014, and asserted a counterclaim alleging that Gregory had breached his obligation of support under the AOS. (Dec. 8, 2014 Answer at ¶ 8.)

         {¶ 5} After reviewing the parties' stipulations, tax returns, and other evidence, the trial court determined that Xuchen could be credited with 40 quarters of coverage under the Social Security Act at the end of 2012, at which time Gregory's obligation under the AOS terminated. However, because Xuchen had been unemployed in 2012, the trial court concluded that the AOS required Gregory to pay her $14, 937 for that year, an amount that corresponded to 125 percent of the federal poverty guidelines. (Feb. 16, 2016 Am. Decision and Jgmt. Entry Decree of Divorce, hereinafter "Decree" at 5-7, 13-14.)

         {¶ 6} Gregory filed a timely notice of appeal and asserts the following assignments of error:

[I.] THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ENFORCING AN AFFIDAVIT OF SUPPORT AFTER ITS EXPIRATION BY OPERATION OF ...

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