Domestic Relations – Immigration – Affidavit of Support – Dependent’s ‘Income’ – First Impression

When the plaintiff-husband – a dual U.S. and Australian citizen – convinced the defendant-wife – a dual citizen of Australia and New Zealand – to move to the U.S. from Australia, he signed a United States Citizenship and Immigration Services Form I-864 Affidavit of Support, which is considered a binding contract between a U.S. sponsor (plaintiff) and the sponsored immigrant (defendant). In order to determine how much support plaintiff owed under Form I-864, the trial court was required to calculate defendant’s income in relation to the federal poverty level, which is based on household size. Since the parties’ son is a U.S. citizen, Form I-864 does not apply to him, and he should not have been included in defendant’s household for purposes of determining her income.

We reverse the trial court’s calculation of defendant’s income and remand for recalculation. We affirm the trial court’s conclusion that plaintiff must repay a loan from defendant; however, the repayment should be calculated in Australian dollars (AUD), not U.S. dollars (USD). The trial court did not abuse its discretion in awarding defendant attorney’s fees related to plaintiff’s breach of Form I-864; however, the trial court may adjust the amount of the award after its recalculation of defendant’s income and the resultant award.

Where defendant prayed for all monetary damages resulting from plaintiff’s breach of the Form I-864 and “such other and further relief [as] the Court may deem just and proper,” she was not required to renew her breach of contract claim under Form I-864 at the end of each new year of the litigation.

Since the evidence at trial indicated that (1) plaintiff regularly used AUD to pay defendant for the interest accruing on the Australian line of credit (from which defendant withdrew the funds she lent to plaintiff to purchase rental property in Georgia), (2) AUD were “used at the time of the transaction,” and (3) defendant’s loss was “ultimately felt” or “incurred” in AUD, the trial court should have applied G.S. § 1C-1823(b) and required plaintiff to repay defendant using AUD instead of USD.

Affirmed in part, reversed in part and remanded.

Pelc v. Pham (Lawyers Weekly No. 011-002-23, 32 pp.) (John Tyson, J.) Appealed from Mecklenburg County District Court (Christy Mann, J.) Matthew Arnold, Ashley Crowder and Brett Holladay for plaintiff; John Boutwell for defendant. 2023-NCCOA-2