                                                                        COURT                I -S
                                                                              DIVISION II
                                                                       NIL! AUG   - 5 AM 10: 37

                                                                       STATE Of WASHINGTON
                                                                        BY
    IN THE COURT OF APPEALS OF THE STATE OF W}                                        INGTON


                                            DIVISION II



In re the Marriage of:                                                No. 44814 -9 -II


NISHAT KHAN,


                                 Appellant,
                                                                 PUBLISHED OPINION
       and



AZAD KHAN,


                                 Respondent.


       MAxA, J. — Nishat Khan appeals the trial court' s spousal maintenance order, claiming


the court erred by limiting the duration of the awarded maintenance. Nishat' s former husband,

Azad Khan,'      is obligated to support her pursuant to an affidavit of support he signed under

federal immigration law as the sponsor of her application for permanent legal residency. Nishat

argues that the trial court erred in not enforcing this obligation through the maintenance award.

We hold that Nishat' s right to support under federal immigration law is a contract right separate


from any rights she had as a result of her marriage, and that this contract right need not be

enforced through maintenance payments in a dissolution proceeding. Therefore, the trial court

did not err in failing to award maintenance in an amount and duration equal to Azad' s

independent support obligation under federal immigration law and we affirm.




1 Because Nishat and Azad Khan share a last name we refer to both by their first names,
intending   no   disrespect.
                                                     FACTS


       Azad, a United States citizen, and Nishat met in India in 2009. In January 2010, Nishat

entered the United States on a K1 ( fiancee) visa. She and Azad married shortly thereafter. Azad

sponsored Nishat' s application for permanent residency, and as part of this process was required

to sign on her behalf an affidavit of support under section 213A of the Immigration and


Nationality Act, which is known as United States Citizenship and Immigration Services ( USCIS)

       864.;
Form I -       see   8 U. S. C. §§ 1182( a)( 4),   1183a. By signing the affidavit, Azad agreed to

provide the financial support necessary to maintain Nishat at an income level at least 125 percent

above the federal poverty line.

       After nearly two      years of marriage,     Azad   and   Nishat   separated   in December 2011. Azad


petitioned for dissolution of marriage in January 2012. Neither the petition nor Nishat' s

response referenced Azad' s I -864 support obligation. Pursuant to temporary orders, Azad paid

maintenance of $ 000 per month (for 12 months) and contributed to Nishat' s moving expenses
                2,

and attorney fees. At trial, Nishat sought continued maintenance. She argued that Azad' s I -864

support obligation was a basis for a maintenance award.


       The trial court concluded that under state law maintenance was not appropriate for

several. reasons. Nevertheless, it awarded Nishat maintenance of $ 000 per month through June
                                                                  2,

2013, three months from the date of the dissolution decree. The trial court based its maintenance


award on a perceived conflict between Azad' s I -864 obligation under federal law and

Washington dissolution law. It concluded that Nishat' s I -864 rights preempted state law and


limited its ability to impute income to Nishat based on her earning capacity and education, and




                                                         2
stated that in awarding maintenance it was balancing federal and state law. Nishat appeals the

duration of the maintenance award.


                                                      ANALYSIS


A.      AFFIDAVIT OF SUPPORT ( FORM 1 - 864)


        A family- sponsored applicant for permanent residency must prove that he or she is not

likely to   become    a public charge.     See 8 U.S. C. § 1182( a)( 4).           To satisfy this requirement, the

applicant' s family sponsor may be required to execute and submit a legally enforceable affidavit

of support on   Form 1 - 864.      8 U. S. C. §§ 1182( a)( 4)( C)( ii), 1183a( a)( 1).        The sponsor must agree


to " provide support to maintain the sponsored [ immigrant] at an annual income that is not less

than 125 percent of the [ f]ederal poverty line during the period in which the affidavit is

enforceable."       8 U.S. C. § 1183a( a)( 1)( A).


        The support obligation under I -864 continues indefinitely unless the sponsored immigrant

 1) becomes     a   United States    citizen, (   2) has worked or is credited with 40 qualifying quarters of

coverage ( as   defined     by   the Social   Security   Act, 42 U. S. C. § 413), ( 3) no longer has lawful


permanent resident status and         departs the United States, ( 4) becomes subject to removal but


obtains a new grant of adjustment status, or ( 5) either the sponsor or the sponsored immigrant

dies. 8 U. S. C. § 1183a( a)( 2) -( 3); 8 C.F. R. § 213a.2( e)( 2). Dissolution of the marriage between


the sponsor and the sponsored immigrant does not terminate the support obligation. Liu v. Mund,

686 F. 3d 418, 423 ( 7th Cir. 2012); USCIS Form 1 - 864,                at   8(   rev.   Mar. 22, 2013); USCIS Form I-


864 Instructions      at   10 ( rev. March 22, 2013);      see   8 C. F. R. § 103. 2( a)( 1) (   incorporating the

USCIS Form 1 - 864 instructions as part of the regulations governing the affidavit of support).




                                                             3
           The affidavit of support creates a binding contract between the sponsor and the federal

government, with the intended immigrant as the third -
                                                     party beneficiary. The sponsored

immigrant      can enforce     the   support obligation against            the   sponsor.   8 U. S. C. § 1183a( a)( 1)( B).


And by signing the affidavit, the sponsor agrees to submit to the personal jurisdiction of any

federal or state court that has subject matter jurisdiction of a lawsuit to enforce the I -
                                                                                          864

obligations.     8 U. S. C. § 1183a( a)( 1)( C).


B.         MAINTENANCE PRINCIPLES


           We review a maintenance award for an abuse of discretion. In re Marriage ofZahm, 138

Wn.2d 213, 226 -27, 978 P. 2d 498 ( 1999). " ` A trial court abuses its discretion if its decision is


manifestly unreasonable          or   based    on   untenable         grounds or untenable reasons.' "      In re Marriage


of Valente, 179 Wn.       App.       817, 822, 320 P. 3d 115 ( 2014) ( quoting              In re Marriage ofLittlefield,

133 Wn.2d 39, 46 -47, 940 P. 2d 1362 ( 1997)). " `                      The only limitation on amount and duration of

maintenance under RCW 26. 09. 090 is that, in light of the relevant factors, the award must be

just.' "    Valente, 179 Wn. App. at 821 ( quoting In re Marriage ofBulicek, 59 Wn. App. 630, 633,

800 P. 2d 394 ( 1990)).


           Under RCW 26. 09. 090, a trial court may award maintenance in a dissolution proceeding

after considering all relevant factors, including but not limited to ( a) the financial resources of

the party seeking       maintenance; (        b) the time necessary to acquire education and training to enable

the   party   seeking   maintenance      to find     employment; (         c) the standard of living established during

the   marriage; (   d) the duration      of   the   marriage; (       e) the age, physical and emotional condition, and



financial obligations of the spouse seeking maintenance; and ( f) the ability of the spouse from

whom maintenance          is   sought   to    meet   his   or   her   needs and   financial   obligations while   meeting
those of the spouse seeking maintenance. The trial court must consider all of the statutory

factors, but the factors are not exclusive. In re Marriage of Washburn, 101 Wn.2d 168, 179 -80,

677 P. 2d 152 ( 1984).


       Here, the trial court determined Nishat was not entitled to maintenance based on

 traditional Washington      law   analysis,"   i.e., consideration of the RCW 26. 09. 90 factors. Clerk' s


Papers at 42. Nishat does not challenge this determination.

C.     I-
        864 OBLIGATION AND MAINTENANCE AWARD


       Nishat and Azad both agree that Azad owes an ongoing support obligation under I -
                                                                                       864.

The question is whether that obligation must be enforced through a maintenance award in the


dissolution proceeding. Nishat argues that it is proper for a trial court to award maintenance

based on a spouse' s I -864 support obligation. Azad argues that a maintenance award cannot be

used to guarantee a spouse' s I -
                                864 obligation, which remains enforceable regardless of any

maintenance award. The relationship between a maintenance award in a dissolution action and a

person' s I -864 obligation to a former spouse under federal immigration law is an issue of first

impression in Washington. We agree with Azad.


        The few published cases in other jurisdictions are split on this issue. See Liu, 686 F. 3d at


419 -20 ( the right of support conferred by federal law exists apart from whatever rights the

sponsored person might or might not have had under state divorce law); Love v. Love, 33 A.3d

1268, 1273 -75   ( Pa.   Super. Ct. 2011) (     trial court erred in fashioning spousal support award

without applying husband' s I -864 obligation; trial court should have considered I -864

obligations as an allowable deviation from the spousal support guidelines).




                                                          5
          We hold that a maintenance order need not include enforcement of a person' s I -864


obligation. Three primary considerations support this conclusion. First, there is no " conflict"

between federal law regarding I -864 obligations and Washington dissolution law because they

are independent of each other. Nothing in the federal statutes or regulations provides that an I-

864 obligation must be included in a maintenance award or otherwise be enforced in a


dissolution action. On the contrary, federal law expressly provides that a spouse' s I -864

obligation does not terminate upon dissolution of the marriage between the sponsor and the

immigrant. USCIS Form I -
                        864 Instructions at 10; see Liu, 686 F.3d at 423; Shumye v. Felleke,

555 F.   Supp. 2d   1020, 1024 ( N. D. Cal. 2008).   This provision suggests that a spouse' s I -
                                                                                                864


obligation exists independent of any dissolution proceedings, including any maintenance award.

          Second, RCW 26. 09.090 governs the award of maintenance in Washington. This statute


lists the factors that a trial court must consider in determining the amount of maintenance. RCW

26. 09. 090 does not provide that one spouse' s contractual obligation under federal immigration

law to make payments to the other spouse must be enforced through a maintenance award.2 And

although the statutory factors are not exclusive, a trial court cannot rely solely on a non -statutory

factor in making a maintenance determination without also fairly considering the statutory

factors. See In re Marriage ofSpreen, 107 Wn. App. 341, 349 -50, 28 P. 3d 769 ( 2001).


2
 By contrast, a maintenance award must reflect binding contracts regarding parties' rights and
property, including making provisions for maintenance, made in contemplation of marriage
    antenuptial / renuptial agreements) and in contemplation of dissolution (separation contracts).
                p
                        expressly allows spouses to enter into separation contracts providing for
See RCW 26. 09. 070( 1) (
the maintenance of either of them); In re Marriage ofBurke, 96. Wn. App. 474, 477; 980 P.2d
265 ( 1999); In re Marriage of Shaffer, 47 Wn. App. 189, 193 -94 & n. 1, 733 P. 2d 1013 ( 1987).
Nishat does not argue that Form I -864 should be enforced as a prenuptial agreement, and there is
no basis for such an argument.



                                                       6
          Here, the trial court found that under Washington law it would not award any

maintenance for several stated reasons. However, in an attempt to balance federal and state law

the trial court awarded $2000 per month in maintenance for an additional three months. Nishat

argues that once the trial court acknowledged that Azad' s I -
                                                             864 obligation could be considered in

awarding maintenance, it was required to continue maintenance for as long as Azad had a

payment obligation under I -
                           864. However, because we hold that a trial court need not enforce a

spouse' s I -
            864 obligation through a maintenance award, we hold that the trial court did not err in

                                                                     3
failing   to   extend   the   maintenance payments   indefinitely.

          Third, the beneficiary of an I -864 obligation will not be left without remedy if that

obligation is not included in a maintenance award. Nishat argues that if the maintenance award


does not incorporate Azad' s full I -864 obligation, she may be precluded from enforcing that

obligation in a subsequent action. We disagree.


           Some courts in other jurisdictions have held that an action to enforce a former spouse' s I-

864 obligation is precluded under certain circumstances when the I -864 support issue was raised


in a prior dissolution proceeding. See, e. g., Schwartz v. Schwartz, 409 B.R. 240, 249 ( B. A' P. 1st

Cir. 2008) ( denying          former wife' s affidavit of support claim in former husband' s bankruptcy

proceeding because claim had been ( or could have been) made in earlier state court divorce

action);   Nguyen       v.   Dean, No. 10- 6138 -AA, 2011 WL 130241, * 3 -4 ( D. Or. Jan. 14, 2011)




3
 The trial court' s award of maintenance for three months apparently was based on the trial
court' s understanding that it must enforce Azad' s I -864 obligation through maintenance.
Although we hold that a trial court is not required to include the I -
                                                                     864 obligation in a
maintenance award, we need not address whether a trial court in the exercise of its discretion
could incorporate the I -
                        864 obligation into a maintenance award.


                                                          7
holding that former wife' s claim seeking support from former husband based on 1- 864 in federal

court was precluded because the I -
                                  864 affidavit of support was entered into evidence in their


underlying divorce proceedings and considered by the state court judge when determining

spousal support amount).   But such a holding would be inappropriate here, where the trial court

did not adjudicate an action for breach of the sponsor' s I -864 obligation.

        As Azad acknowledges, an order of maintenance is not an adjudication of his obligation

under I -864. And Azad concedes that termination of maintenance does not terminate his I -864


obligation. Because we hold that an I -
                                      864 obligation is separate from any rights or obligations

imposed by marriage, Nishat will not be precluded from asserting her I -864 contract right in a

separate action.



        We affirm the trial court' s maintenance award, and hold that a trial court need not enforce

a spouse' s I -
              864 obligation through a maintenance award.




We concur:




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