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Naik v. Naik

April 14, 2008

SUMERU NAIK, PLAINTIFF-RESPONDENT,
v.
URVI NAIK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-2822-05.

The opinion of the court was delivered by: A. A. RODRÍGUEZ, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 24, 2007

Before Judges A. A. Rodríguez, C. S. Fisher and C. L. Miniman.

In this divorce appeal, we address the enforceability and amount of support that must be paid by the signer of an immigration Affidavit of Support (Form I-864EZ), pursuant to § 213A of the Immigration and Nationality Act (INA), 8 U.S.C.A. § 1183a. This form creates a binding contract that imposes an obligation on the sponsor of a sponsored immigrant to insure that the immigrant has available support at or above 125 percent of the federal poverty line depending on the size of the family unit. This obligation, which is independent of spousal support, continues until the occurrence of one of several statutory termination events. We hold that Form I-864EZ support is enforceable in New Jersey courts. However, in setting such support the court may consider alimony, child support and equitable distribution awards in determining the sponsor's obligation.

Statement of Facts

Urvi Naik (wife), age twenty-eight, appeals from: the April 10, 2006 judgment of divorce following a trial; and the June 23, 2006 order denying reconsideration.

Wife and Sumeru Naik (husband), age thirty, were married in India on December 8, 2003. The circumstances of the marriage were atypical. The bride and groom had never met. A few days after the marriage ceremony, husband returned to the United States. Wife remained in India. She came to the United States fifteen months later, in March 2005. The only contact the parties had with one another during that fifteen-month period was via telephone. It is uncontested that in order to bring wife to the United States, husband signed an Affidavit of Support pursuant to § 213A of the INA. Once wife arrived in the United States, she moved into the Elmwood Park home owned by husband's parents, with whom he resided. Although the parties shared a bed, wife alleges that the marriage was never consummated. Three months later, the parties began to live in separate rooms. Thereafter, wife moved out.

Husband sued for divorce alleging extreme cruelty. Wife counterclaimed alleging extreme cruelty and constructive desertion. Wife sought pendente lite support. Husband opposed the application and sought counsel fees. The judge awarded $200 per week support to wife and denied husband's request for counsel fees.

At trial, both parties were represented by counsel. After hearing the testimony of the parties, the judge entered a dual judgment of divorce. The judge found that alimony was unwarranted based on: the very short duration of the marriage; the young ages of the parties; the fact that no children were born of the marriage; and that both parties are in good physical and emotional health. The judge found that wife is a well-educated person, having a post-high school diploma in mechanical engineering and being fluent in Hindi and Gujarati and practically fluent in English. The marriage did not absent wife from the job market. Wife demonstrated no plans to return to school or to rehabilitate herself in any way. There was no standard of living established that would show a need for rehabilitative alimony. The judge concluded that the pendente lite support granted to wife was reasonable, but that it should not continue in the form of alimony.

The only property the parties acquired during the marriage was a 2004 Hyundai Sonata purchased in December 2004 with a loan from husband's father. The undisputed value of the vehicle at time of trial was $10,500. The judge awarded equitable distribution to wife in the amount of $7,650, consisting of one-half of the value of the Sonata ($5,250) and the full value of a Postal Certificate ($2,400), which was a gift from wife's father. A 401K account held by husband was awarded solely to him. Furniture and other furnishings used by the parties during the marriage belonged to husband.

Both husband and wife testified that they incurred counsel fees in this litigation in the amounts of $13,000 and $5,000, respectively. The judge denied both claims for counsel fees.

Wife moved pro se for reconsideration. At oral argument, wife argued, among other things, that by signing the Affidavit of Support in order to bring her from India to the United States, husband was legally bound to support her. This issue was raised for the first time on the motion for reconsideration. Wife did not brief it. Wife also asked that husband return her jewelry to her and that the court award her counsel fees. The ...


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