July 24, 2013
ZAHOOR AHMED CHOUDRY, Plaintiff-Appellant,
SOBIA ZAHOOR CHOUDRY, n/k/a SOBIA BASHIR, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 9, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1865-11.
Frank C. Babcock argued the cause for appellant.
Gregory G. Diebold argued the cause for respondent (Northeast New Jersey Legal Services Corp., attorneys; Mr. Diebold, of counsel and on the brief).
Before Judges Ashrafi and St. John.
Plaintiff-husband, Zahoor Ahmed Choudry, appeals from the provision of a judgment of divorce that orders him to pay $262 in weekly support to defendant-wife, Sobia Zahoor Choudry. We affirm.
The marriage was arranged in Pakistan before the parties met each other. In the United States, it did not endure. The Family Part held a divorce trial in March 2012, at which the only witnesses were husband and wife.
Husband is a citizen of the United States. He was divorced from his first wife, with whom he had three children. He notified his family members that he wished to remarry. In accordance with practices in Pakistan, a marriage was arranged by family members of both parties with the assistance of a marriage service.
Husband and wife spoke on the telephone and exchanged pictures. He was then forty-five years old, and she twenty-six. In October 2008, husband traveled to Pakistan and met wife for the first time on the date of their wedding. After the wedding ceremony, the couple spent four days together in Pakistan for their honeymoon, and then husband returned alone to the United States. He pursued immigration papers for wife to join him in this country.
As part of the immigration requirements, husband filed an affidavit of support with the United States Citizenship and Immigration Services (USCIS) in July 2010. The sponsorship affidavit, Form I-864EZ, included husband's promise to provide financial support for wife equaling 125% of the federal guidelines for the poverty level of income. The form stated the circumstances under which husband would be relieved of the obligation to support wife, expressly indicating that divorce was not such a circumstance.
Wife obtained a visa and came to the United States in December 2009. The parties disputed in their testimony at trial whether discord in the marital home then arose as a result of husband's parenting time with his three children from the prior marriage.
In December 2010, wife obtained a "green card, " thus documenting her as a legal permanent resident of the United States. In January 2011, she traveled to Canada to visit her sister, and she stayed there for five weeks. When she returned, the marriage quickly broke down. Wife sought a domestic violence restraining order against husband, which the Family Part denied after conducting a two-day hearing. Husband filed a complaint for divorce in March 2011.
At the time of the divorce trial, husband was earning slightly more than $40, 000 in his job as a phlebotomist. Wife claimed he earned additional income driving passengers to airports, but husband denied that he had such a second, part-time job. Husband also denied that he earned any income from a two-family house he owned, in which his first wife and children lived. He claimed the house was in foreclosure and the second apartment was in disrepair and unoccupied. His income tax returns, however, indicated rental income had been received in the past. Husband was obligated to pay $249 per week in child support for his children, which was collected by means of wage garnishment.
Relevant to the issues in this appeal, the Family Part ruled that Form I-864 was enforceable by wife in a divorce proceeding. In accordance with the terms of the affidavit, husband was ordered to pay $262 per week to wife. Wife was directed to provide annual information to husband about her income, which the court predicted might include her own employment income within two years, thus potentially reducing husband's obligation in the future. The court ordered that husband's support payments be made through the Probation Division and collected by garnishment of his wages.
In Naik v. Naik, 399 N.J.Super. 390, 395 (App. Div. 2008), we held that the relevant section of the federal Immigration and Nationality Act, 8 U.S.C.A. § 1183a, made Form I-864 a legally binding contract of support against the sponsoring affiant. We further held that a dependent spouse-immigrant could enforce the contract in a divorce action in the Family Part. Id . at 397-98; see 8 U.S.C.A. § 1183a(e) (an action to enforce the contract established by an affidavit of support "may be brought against the sponsor in any appropriate court — (1) by a sponsored alien, with respect to financial support . . . ."). Husband does not dispute that wife can enforce the promise he made in the affidavit of support in the divorce action in the Family Part.
Husband originally claimed on appeal that his obligation under the affidavit did not require payment to wife if she was not residing in the United States, that he suspected she was actually living with her sister in Canada, and that he needed information about her present address to confirm whether she was living in the United States. However, at the time of oral argument before us, husband's attorney acknowledged that husband no longer disputed wife's residence in the United States and withdrew that issue from the appeal.
Husband maintained his challenge to the support order on the ground that it is beyond his means and that it violates a provision of the federal Fair Debt Collection Act. Husband contends that 15 U.S.C.A. § 1673(b)(2) limits the amount that can be garnished from his wages and that the amount of child support and spousal support he must pay exceeds that limitation. Subsection (a)(1) of the federal statute sets a general twenty-five percent maximum of "aggregate disposable earnings of an individual" that can be garnished from a paycheck. Subsection (b) provides exceptions, in particular with respect to support payments. The part relevant to this case provides:
(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed—
(A)where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week; and
(B)where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual's disposable earnings for that week;
except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.
[15 U.S.C.A. § 1673(b)(2).]
This statute is applicable to wage garnishments executed under state statutes. Burstein v. Burstein, 182 N.J.Super. 586, 594 (App. Div. 1982); Cashin v. Cashin, 186 N.J.Super. 183, 186 (Ch. Div. 1982); see also N.J.S.A. 2A:17-56.9 ("The total amount of income to be withheld shall not exceed the maximum amount permitted under . . . Consumer Credit Protection Act (15 U.S.C. § 1673(b)).").
Husband does not argue with any precision how 15 U.S.C.A. § 1673(b)(2) has been violated by the Family Part's order of support. It appears that the federal statute limits the amount that can be garnished to execute the support order, including arrears, to fifty-five percent of husband's disposable income. See Burstein, supra, 182 N.J.Super. at 593-94; Cashin, supra, 186 N.J.Super. at 186. Husband claims that the garnishment of his prior child support obligation of $249 per week, together with $262 per week on the obligation imposed in this divorce, leaves him with only about $169 per week in disposable income to support himself. A New Jersey statute, N.J.S.A. 2A:17-57, exempts from wage garnishment a minimum amount of wages so that the payer is not made destitute. Husband did not cite that statute, evidently because the low amount of the exemption is not implicated by the Family Part's order of support in this case.
Husband has not provided a documentary record, or even his own breakdown of what is actually being garnished from his wages. His employer is required to apply the applicable federal and state statutes in determining the amount it withholds from his wages to satisfy the garnishment order. The actual document by which the employer is ordered to garnish husband's wages must inform the employer of the statutory limits to the garnishment. See R. 4:59-1(e). Husband has not provided for our review the actual order for garnishment, and we have no reason on this record to conclude that husband's employer is garnishing more than the statutorily permitted amounts from his wages.
Husband further argues that the Family Part is limited by the federal statute in the amount of support it can order him to pay. He asserts the Family Part's order of support must itself comply with the percentage limitations of the federal statute. We disagree. We have been provided no legal authority that limits the amount of spousal support that a family court may order to the amount that can be withheld by garnishment from the supporting spouse's wages. Support may also be paid through other income and assets of the supporting spouse.
Here, the Family Part reviewed husband's case information statement and considered testimony at the trial, and it concluded that husband had other sources of income besides his full-time employment wages. The court did not abuse its discretion in ordering him to pay the full amount he became obligated to pay as a result of his sponsoring wife's immigration to the United States and executing Form I-864.