Practicing family law is not for the faint hearted

Representing parties embroiled in intense emotional conflict is enough by itself to give one pause. It gets even worse when the family law case involves tricky non-family law issues. The recent decision in In re Marriage of Kumar, 13 Cal. App. 5th 1072 (2017), reminds me of the fact that one needs to be brave hearted to practice family law.

In addition to considering family law issues, Kumar addresses contract and immigration law. In Kumar, Husband, a United States citizen, married a Fijian woman in Fiji in September 2012. He signed an I-864 affidavit of support, by which he agreed to support his wife at 125 percent of the poverty level. In July 2013, Wife moved to the United States.

Five months later, with the marriage deteriorating, Husband tricked Wife into returning to Fiji. He also tore out the page in her passport containing the permanent United States residency stamp, thereby preventing Wife from returning to the United States. At least that is what husband thought he had accomplished.

Wife managed, however, to return to the United States, prompting Husband to file for a dissolution of their marriage. Wife sought temporary spousal support, and in connection therewith, she raised the I-864 immigration affidavit, requiring Husband to support her at 125 percent of the poverty level.

The trial court granted Wife spousal support and issued a Gavron warning to her, informing her of her obligation to become self-supporting to the extent of her ability. See In re Marriage of Gavron, 203 Cal. App. 3d 705 (1988).

In September 2014, Husband petitioned to have his spousal support obligation ended, claiming the parties had a short-term marriage. The trial court ordered spousal support terminated, asserting that, indeed, the marriage had been of short duration and Wife had not used her best efforts to find employment. In reply, Wife asserted that husband remained obligated to support her, due to the I-864 affidavit. She was told that this claim belonged in federal court. Wife therefore appealed.

The Court of Appeal reversed, holding that the I-864 affidavit was an enforceable contract between Husband and Wife, requiring Husband to support Wife at 125 percent of the poverty level. This obligation did not terminate unless Husband died, Wife died, Wife became a United States citizen or left the United States, or Wife worked 40 quarters. The court also held that state courts have jurisdiction to enforce a contract. Therefore, Wife did not need to pursue her claims in federal court.

The Court of Appeal rejected Husband's argument that Wife needed to file a general civil action, instead holding that there is no separate family court jurisdiction. It is a court hearing matters under the Family Code, but it is also part of the superior court performing one if its general duties. The court also held that Wife's non-compliance with the Gavron warning did not bar her recovery, since she appealed based upon the denial of support under I-864, which is independent of the state spousal support provisions. Moreover, a failure to mitigate damages (i.e., failure to seek work) is not one of the conditions resulting in a termination of the support obligation engendered in I-864.

In addition to reminding me of the need to consult with outside relevant experts when a case touches upon non-family law issues, the Kumar case once again alerted me to the need to retain an appellate attorney early in the process of handling a unique case.

I do wonder to what extent, if any, the appellate court in Kumar was influenced by Husband's misconduct in trying to leave Wife stranded in Fiji by sabotaging her passport. It is actions like husband's that further remind me practicing family law is not for the faint hearted.